Background
As alleged in the ABCC’s statement of claim
- Bovis Lend Lease Pty Ltd (“BLL”) has implemented a swipe-card access system known as “Blue Glue” on Australian building sites since mid-2007.
- In 2008, BLL was head contractor for the following sites in Melbourne, Victoria:
· New Royal Children’s Hospital site, 52 Flemington Road, Parkville (“the RCH Project”)
· ANZ site, 10 North Wharf Road, Victoria Harbour, Docklands (“the ANZ Project”)
· Myer site, 800 Collins St, Victoria Harbour, Docklands (“the Myer Project”)
· Montage site, Collins St, Victoria Harbour, Docklands (“the Montage site”)
- On 23 May 2008, the CFMEU and CEPU held a barbeque for BBL employees at Docklands Park, Victoria. Organisers including CFMEU Vice President Elias Spernovasilis and CEPU organiser Troy Gray urged workers not to participate in the Blue Glue system and advocated a national campaign against BLL over Blue Glue. When the barbeque finished at 1:30 pm employees voted to withdraw their labour for the rest of the day in protest about the introduction of Blue Glue.
- On 5 August 2008, about 40 organisers of the CFMEU and CEPU, including CFMEU organiser Shaun Reardon, Mr Spernovasilis, Mr Gray and CEPU Assistant Secretary of the Victorian branch Tony Murphy, attended the RCH Project. The organisers told workers that they should leave work and gather round the Flemington Road Gate to the project. They distributed flyers and told BLL management that they wanted the Blue Glue system turned off. Many of the workers did not attend for work at the RCH project on this day.
- On 14 August 2008, CFMEU organisers Mr Spernovasilis, Derek Christopher, Adrian McLoughlin and Mr Gray and CEPU organiser Andy Wallace were among 150-300 employees gathered outside the ANZ Project site. The organisers directed the employees not to attend work and instead attend proceedings at the Australian Industrial Relations Commission (AIRC) between BLL and the CFMEU and CEPU. The majority of the employees departed for the AIRC proceedings.
- A concrete pour was scheduled to take place at 10am with a Caelli Construction Pty Ltd truck. Mr McLoughlin, Mr Christopher and between 10 and 20 other men stood on the road in front of the truck. At Mr McLoughlin’s direction the group linked arms to stop the truck from entering the site. The truck drove away and about 15 minutes later, another truck operated by Pronto Mixed Concrete arrived. Mr McLoughlin again directed the men to link arms. Mr McLoughlin also approached the concreters who remained on site and directed them not to work and to attend the AIRC proceedings.
- On 28 August 2008, an order of the AIRC banning industrial action by the CFMEU and CEPU on BLL sites was in effect. On this morning BLL announced that the Docklands Projects were open and that guards would swipe employees in and out of the site. Mr Spernovasilis, Mr Christopher, Mr McLoughlin, Mr Gray, CFMEU Senior Vice President Noel Washington and CFMEU organiser John Setka told 250-300 employees of BLL and its subcontractors that BLL was locking them out. At a meeting of the organisers and the employees a motion was passed that workers go home until Monday morning. The organisers and employees then marched to BLL’s head office in Bourke St, Melbourne.
- At the RCH Project on this morning, CFMEU President Ralph Edwards and Vice President Frank O’Grady, CFMEU organisers Matt Hudson and Mr Reardon, and CEPU organisers Kevin Fitzgerald, and Wes Hayes allegedly trespassed on the site. At the direction of the organisers, approximately 200 employees of BLL and its subcontractors allegedly left the site and did not return to work in protest over the Blue Glue system.
Alleged contraventions
- It is alleged that whilst acting in their capacity as officers of the CFMEU and CEPU, or with the authority of the CFMEU and CEPU, on 23 May 2008, 5 August 2008, 14 August 2008, and 28 August 2008, Mr Spernovasilis, Mr Gray, Mr Christopher, Mr McLoughlin and Mr Hudson breached s.38 of the Building and Construction Industry Improvement Act 2005 (BCII Act) by aiding and abetting unlawful industrial action.
- It is further alleged that through the conduct of their organisers, on 23 May 2008, 5 August 2008, 14 August 2008, and 28 August 2008, the CFMEU and CEPU breached s.38 of the BCII Act by engaging in unlawful industrial action.
ABCC proceedings
- The ABCC filed proceedings in the Federal Court at Melbourne on Friday, 12 November 2008. A first directions hearing was held on Friday, 5 December 2008. A further directions hearing is scheduled for Friday, 6 February 2009.
Penalties
- The maximum penalties for a breach of s.38 of the BCII Act are $22,000 for an individual and $110,000 for an organisation.