Office of the Australian Building and Construction Commissioner

Summary of ABCC Prosecution

• On 6 February 2009, the Federal Court granted the ABCC an injunction restraining the CFMEU, AMWU and their officials from preventing or hindering access to the site of the West Gate Bridge Strengthening Project (the site) after a picket was established.
• On 6 March 2009, head contractor John Holland also applied to the Court for injunction orders and the imposition of penalties for breaches of the Building and Construction Industry Improvement Act 2005 (BCII Act). The ABCC intervened in these proceedings.
• The ABCC and John Holland obtained broadened injunctions on four occasions, 17 February 2009, 24 March 2009, 30 April 2009 and 1 May 2009.
• On 7 August 2009 the ABCC filed its original Statement of Claim in the Federal Court in Melbourne alleging 92 contraventions of the BCII Act resulting from the dispute. The parties were directed to participate in Court ordered mediation.
• On 23 February 2010 the Court was advised that the ABCC had reached an agreement with the two unions and their officials. Penalties submitted to the Court for consideration total $1,325,000. It is important to note that all penalties were subject to the final determination of the Court.
• In a trial which commenced on 1 March 2010 his Honour Justice Jessup considered approximately 20 volumes of evidence filed by the ABCC.
• On 17 March 2010, Justice Jessup reserved his decision subject to further questioning of the parties.
• On 21 June 2010, his Honour Justice Jessup asked the parties to make submissions on various isolated legal questions. These issues were addressed at a mention hearing on 2 July 2010.
• On 28 July 2010 Justice Jessup ruled that the evidence showed the respondents had committed the 52 contraventions and the agreed $1.325 million penalty was appropriate.

“For the most part… I have accepted the applicant’s submissions as to the consequences for the respondents’ conduct …and I have accepted the penalties proposed by the parties...”

Summary of allegations in the ABCC’s amended Statement of Claim filed 1 March 2010

• In late 2008 John Holland Pty Ltd was engaged as the principal contractor on the West Gate Bridge Strengthening Project (the project) in Melbourne. The project involved strengthening the bridge to allow for additional lanes and the installation of anti-suicide barriers.
• John Holland engaged Civil Pacific Services (Vic) Pty Ltd to undertake preparation works at the site. The employment of the Civil Pacific employees was regulated by an agreement made with the AWU in March 2008.
•  On 3 February 2009 the CFMEU and AMWU contacted John Holland and requested that it make an agreement with the unions to cover the workers on the project.
• The next day John Holland told the CFMEU and AMWU that they were not in a position to finalise an agreement with them.
• At 10am on 5 February 2009, approximately 24 Civil Pacific employees met with CFMEU official Mick Powell and AMWU organiser Tony Mavromatis outside the site.
• After the meeting 21 Civil Pacific employees left the site and did not work for the remainder of the day.
• On 6 February 2009, the Civil Pacific employees also failed to attend and perform work at the site.
• On that same day a picket was established at the Hyde Street entrance to the site, for which Mr Powell and Mr Mavromatis arranged for amenities and barbeque equipment to be provided for the picketers.
• Mr Powell told John Holland’s general superintendent that if John Holland wanted the picket to end, they’d better sign an agreement with the AMWU and the CFMEU.
• There was no work scheduled for the project on Saturday 7 February 2009.
• On 8 February 2009, Civil Pacific agreed to make the West Gate Project Agreement under part 8 of the Workplace Relations Act 1996 with the AMWU and CFMEU. The pay rates under this agreement were higher than under Civil Pacific’s agreement with the AWU.
• On 9 February 2009, Civil Pacific employees agreed to return to work.
• On 9 February 2009, Civil Pacific requested that John Holland agree to pay the higher rates.
• John Holland refused Civil Pacific’s request to pay the higher rates.
• On 27 February 2009, Civil Pacific withdrew from its contract to supply labour to John Holland on the project.

March 2009

• On 2 March 2009 Civil Pacific terminated the employment of the 32 employees it had engaged on the project.
• On 3, 4, 5, 6 and 10 March 2009, a picket was established at John Holland’s project head office in Port Melbourne, escalating from chanting, to abuse, to threats. On 3 March 2009, Mr Mavromatis told John Holland representatives that the termination of the Civil Pacific employees was the reason for the industrial action and that there needs to be an agreement with the CFMEU and the AMWU in relation to the project.
• On 11 March 2009, the Federal Court made interim injunctive orders in the John Holland Proceeding with regard to their presence at the project head office.
• From 11 to 13 March 2009, the picket moved back to the site facility at the Hall Street and Hyde Street entrances.
• On 11 March 2009, a number of employees of a replacement contractor were abused by picketers whilst trying to enter the site, and were then followed to the John Holland Head Office in Abbotsford.
• On 12 March 2009, approximately 20 to 40 people gathered around the entrance of the Head Office in Abbotsford. Mr Powell and Mr Mavromatis were part of the gathering. A person with a megaphone was shouting abuse to “scabs” and threatening their families. John Holland employees were also abused.
• In a separate incident on 12 March 2009, Gareth Stephenson, an organiser for the CFMEU, telephoned the director of a contractor that was continuing work on the project. Mr Stephenson asked that contractor to get their workers to cease work on the project until the dispute was resolved.
• On 13 March 2009, Mr Stephenson held a meeting with employees of contractors who were continuing to work on the site. Mr Stephenson held a vote with the employees, saying words to the effect that as there were “not enough lunch rooms for all the men on the site, you won’t be coming back to work until it’s fixed.”
• Only some of the employees raised their hands. Mr Stephenson then said words to the effect that the employees were not allowed to work on the site and they should go home.
• Employees of all contractors except one left the site. The employees of the remaining contractor did not attend work at the site from 14 March 2009.
• Employees of these contractors did not return to work at the site until about 14 May 2009.
• On 16, 17, 18, 19, 20 and 21 March 2009, pickets continued at various locations including the site, the project head office and the head office in Abbotsford.
• On 20 March 2009, a number of employees contracted to work on the project received threatening telephone calls.
• On 26, 27, 28, 29, 30 and 31 March 2009, the CFMEU, the AMWU, Mr Powell and Mr Stephenson continued to engage in coercive picketing activity at the site and related places.

April 2009

• Picketing continued at Hyde Street on 30 and 31 March 2009, on the apron to the bridge on 1 April and at the project head office on 2 April 2009.
• On 7 April 2009, a group of about 25 people gathered at the project head office at the site and blocked the Smith Street entrance. Police presence was required so that employees contracted to work on the project could exit safely to work on the bridge.
• On 8 April 2009, a group of about 50 people picketed the project head office. As one of the buses of workers was attempting to leave the project head office, one of the picketers, Bob Mates, a former CFMEU organiser and a CFMEU shop steward at a city site, struck and cracked the window of the bus as it attempted to exit. Police were required to attend so that employees contracted to work on the project could exit safely to work on the bridge.
• On 9 April 2009, a group of 50 people again picketed the project head office. Despite police attending, a bus trying to exit was banged and rocked, its windscreen was hit until it cracked, a tyre was slashed with a knife and the bus was unable to exit safely.
• On 14 April 2009, employees were prevented from accessing the site as 70 people were blocking the entrance to the ‘Eastern Compound’ gate at the site. Police attended and determined it was unsafe to allow John Holland staff to gain access.
• On 15 and 16 April 2009, picketing at the site continued, with police escorts required to allow safe passage for the John Holland vehicles.
• On 29 April 2009, a crowd of hundreds of people occupied the Lorimer Street entrance to the site. Several CFMEU organisers, including Mr Stephenson, spoke to the crowd with a megaphone.
• The CFMEU organised for workers from building sites in the city to attend the picket at the Eastern Compound on 29 April 2009.
• Victoria Police were in attendance and provided an escort for the workers to allow them to exit the Eastern Compound. Despite the police escort, a number of people shouted abuse and banged on the buses.

Alleged contraventions

• Section 43(1)(b) of the BCII Act provides that a person must not unlawfully coerce or threaten to coerce another person to engage or not engage another person as a building contractor.
• The ABCC alleged that the following respondents engaged in unlawful coercion on the following dates:
• The AMWU between 11 and 13 March 2009, between 16 and 21 March 2009, between 26 and 31 March 2009, and by their actions at the Project Head Office during March 2009. [3 contraventions].
• The CFMEU between 11 and 13 March 2009, between 16 and 21 March 2009, between 26 and 31 March 2009, by their actions at the Project Head Office during March 2009, and by their actions during the month of April 2009.[8 contraventions].
• Mr Powell by his actions at the Project Head Office during March 2009, on 1 April 2009, and throughout the month of April 2009. [4 contraventions].
• Mr Mavromatis by his actions at the Project Head Office during March 2009. [1 contravention].
• Mr Stephenson between 11 and 13 March 2009, by his actions at the Project Head Office during March 2009 and by his actions throughout the month of April 2009. [5 contraventions].
• Section 44 of the BCII Act provides that that a person must not take or threaten to take action against another person to place undue pressure or coerce them to make, vary, terminate or extend an agreement made under the Workplace Relations Act 1996.
• The ABCC alleged that the following respondents engaged in unlawful coercion to make an agreement on the following dates:
• The AMWU on 6 February 2009, between 11 and 13 March 2009, between 16 and 21 March 2009, between 26 and 31 March 2009, and by their actions at the Project Head Office during March 2009. [4 contraventions].
• The CFMEU on 6 February 2009, between 11 and 13 March 2009, between 16 and 21 March 2009, between 26 and 31 March 2009, on 1 April 2009, by their actions at the Project Head Office during the month of March 2009, and by their actions throughout the month of April 2009. [9 contraventions].
• Mr Powell on 6 February 2009, on 1 April 2009, by his actions at the Project Head Office during March 2009, and by his actions throughout the month of April 2009. [5 contraventions].
• Mr Mavromatis on 6 February 2009, and by his actions at the Project Head Office during March 2009. [2 contraventions].
• Mr Stephenson between 11 and 13 March 2009, by his actions at the Project Head Office during March 2009 and by his actions throughout the month of April 2009. [5 contraventions].
• Section 38 of the BCII Act provides that a person must not engage in unlawful industrial action.
• The ABCC alleged that the following respondents engaged in unlawful industrial action on the following dates:
• The AMWU on 5 and 6 February 2009. [1 contravention].
• The CFMEU on 5 and 6 February 2009, and between 11 and 13 March 2009. [2 contraventions].
• Mr Powell on 5 and 6 February 2009. [1 contravention].
• Mr Mavromatis on 5 and 6 February 2009. [1 contravention].
• Mr Stephenson between 11 and 13 of March 2009. [1 contravention].

Penalties

• The maximum penalties for a contravention of the Building and Construction Industry Improvement Act 2005 are $22,000 for an individual and $110,000 for an organisation.
• The agreed penalty amounts are broken down as follows:

• The agreed penalty amounts were subject to the final determination of the Court.