Office of the Australian Building and Construction Commissioner

Allegations in the ABCC’s Statement of Claim

• VicRoads engaged Fulton Hogan Pty Ltd to undertake a road widening project on the Berwick-Cranbourne Road in Victoria.
• Fulton Hogan engaged Saferoads Pty Ltd to supply guard rail and wire rope safety barriers for the project. Saferoads contracted Labcon Industries Pty Ltd to install the guard rail and wire rope safety barriers. Labcon did not have a workplace agreement with the CFMEU under Part 8 of the Workplace Relations Act 1996 (WR Act).
• On 10 September 2008, CFMEU Organiser Mr Gareth Stephenson arrived at the site and told a Labcon employee that a deal had been made between Fulton Hogan and the CFMEU. He said that the site was a union site and the workers had to be in the union to work on the site.
• Subsequently, Mr Stephenson had a telephone conversation with a Labcon manager in which the manager asked Mr Stephenson to allow a concrete truck to remain on site. Mr Stephenson allegedly said ‘I’m going to shut your site down, you don’t have EBAs and it’s a union site.’ Mr Stephenson agreed to let the concrete pour continue when the manager agreed to meet with him to discuss the issue.
• Mr Stephenson and the manager made a tentative appointment to meet at Mr Stephenson’s office at 11am on 12 September 2008.
• At 8.30am on 12 September 2008, the manager telephoned Stephenson to cancel the meeting as he needed more time.
• On 12 September 2008, Mr Stephenson entered the site and told a Labcon employee that no concrete would be poured that day. While on the site Mr Stephenson allegedly told Fulton Hogan’s site manager he was there to check on Labcon’s EBA and its insurance.
• 2 Mr Stephenson served a Notice of Suspected Contravention under the Victorian Occupational Health and Safety Act (OHS Act) on Labcon and Fulton Hogan. As a result, the site was shut down.
• Mr Stephenson told Fulton Hogan’s site manager that the notice had nothing to do with Fulton Hogan and he didn’t have to do anything about it.

Alleged contraventions

• The ABCC alleges Mr Stephenson and the CFMEU contravened:
• Section 38 of the Building and Construction Industry Improvement Act 2005 (BCII Act) by engaging in unlawful industrial action when he banned the concrete pour.
• Section 44 of the BCII Act because he threatened to take, and took, action against Labcon to place undue pressure or coerce it to make an industrial agreement made under the WR Act; and
• Section 45 of the BCII Act because he discriminated against Labcon and its employees because it did not have an agreement with the CFMEU.

ABCC Prosecution

• The ABCC filed a Statement of Claim in the Federal Court in Melbourne on 30 September 2009.
• A directions hearing is scheduled for 23 October 2009.

Penalties

• The maximum penalties for each contravention of the BCII Act are $22,000 for an individual and $110,000 for an organisation