Recent developments in workplace relations
While it has been business as usual at the ABCC, the last month has seen some major changes in Australia’s workplace relations landscape.
Fair Work Act takes effect
Major parts of the Fair Work Act 2009 (FW Act) commenced operation on 1 July 2009. The agencies that will administer the new legislation also became operational from this date. Fair Work Australia has assumed most of the functions that were previously undertaken by the Australian Industrial Relations Commission (AIRC), while the Office of the Fair Work Ombudsman has replaced the Workplace Ombudsman and Workplace Authority.
BCII Act amendment bill referred to Senate Committee
On 17 June 2009, the Minister for Employment and Workplace Relations, Julia Gillard, introduced legislation to establish a new specialist body to enforce workplace laws in the building and construction industry. The Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 has been referred to a Senate Committee for an inquiry and report. The committee is scheduled to report its findings to the Senate by 10 September 2009.
The Building and Construction Industry Improvement Act 2005 (BCII Act) remains fully operational.
The ‘new’ 2009 National Code Implementation Guidelines
On 9 July 2009 the revised 
Implementation Guildelines for the National Code of Practice for the Building and Construction Industry - PDF 225KB were released by Minister Gillard.
The ‘new’ 2009 Guidelines will apply to all projects where expressions of interest or tenders are called for on or after 1 August 2009. This version of the Guidelines does not apply to projects where expressions of interest or tenders were called for prior to 1 August 2009. The Guidelines that were in effect at the date of commencement of those projects continue to apply for the life of the project.
In her statement, Minister Gillard said that the changes to the Guidelines reflect the FW Act and the commitment of the Australian Government to ethical tendering requirements.
An ABCC e-Alert (3 August 2009) summarises the main changes to the Guidelines and the impact that these changes are expected to have on National Code compliance. The ABCC website has also been updated with new National Code information and fact sheets.
You can download a copy of the 2009 Guidelines from the National Code section of the ABCC website.
For more information go to www.workplace.gov.au or call DEEWR’s Code Hotline on 1300 731 293.
New look ABCC website and revised educational material
Educating industry participants about their rights and obligations under workplace relations laws is central to the role of the ABCC. When you next visit the ABCC’s website you will see that it has recently been re-designed and offers easier access to information and guides.
The fact sheets available through the website have been revised in accordance with the new FW Act.
Visit the new-look ABCC website at www.abcc.gov.au
New head of Operations at the ABCC
ABC Commissioner John Lloyd recently welcomed Leigh Johns to the position of Deputy Commissioner Operations.
Mr Johns commenced at the ABCC on 6 July 2009. He brings to the role over 15 years experience in workplace relations, equal opportunity, disciplinary proceedings and employment law. With qualifications in both law and economics, Mr Johns has extensive experience as an industrial lawyer.
From March 2007 until joining the ABCC Mr Johns was Chief Counsel of the Office of the Fair Work Ombudsman, formerly the Workplace Ombudsman.
As Deputy Commissioner Operations, Mr Johns will lead the ABCC Operations Group in its functions of advising on and enforcing workplace laws in the building and construction industry and monitoring compliance with the National Code of Practice for the Construction Industry.
"Having regard to its contribution to gross domestic product and to employment in this country, the regulation of the building and construction industry is of crucial importance," said Mr Johns. "Therefore, I am very much looking forward to working with the ABC Commissioner to ensure that building work is carried out fairly, efficiently and productively for the benefit of building industry participants and the Australian economy as a whole."
Mr Johns has held briefings with several key industry stakeholders with more scheduled in the near future. He will also be attending several trade shows around the country to gain further exposure to the industry.
Industry disputation remains low
Recently released data from the Australian Bureau of Statistics shows that industrial disputation levels in the construction sector remained low in the March 2009 quarter.
The graph below shows that 6.1 working days were lost per thousand employees in the quarter. This is a marginal increase on last quarter’s figure and shows upward movement on the very low disputation levels of March 2008.
Breaking the law adds up…and up…
Breaking the law can be costly. Two recent court decisions in Perth and Melbourne demonstrate that the courts are willing to not only make the penalty fit the contravention, but also for it to act as a deterrent against recidivist behaviour.
ABC Commissioner John Lloyd said the industry was on notice: “The courts are imposing significant penalties on those that disregard the rule of law. It is no longer worth the risk to break the law. If in doubt, call the ABCC hotline for advice. You can remain anonymous.”
On 7 July 2009 the Perth Magistrates Court fined CFMEU Assistant Secretary Joseph McDonald $10,000 and ordered him to pay costs of $3000 after he pleaded guilty to three counts of trespassing on a West Australian construction site. An earlier trespass proceeding saw him fined $1500 and ordered to pay $3000 costs.
In a separate decision of 19 June 2009, the Federal Court in Melbourne imposed a penalty of $75,000 plus costs on the CFMEU for contempt of court. The contempt finding resulted from the union’s failure to observe injunctions that were in place at the Royal Children’s Hospital construction site in Parkville, Victoria.
In handing down his decision His Honour Justice Tracey noted that the CFMEU was “determined not to obey the Order and made no reasonable attempt to comply.” He indicated that the penalty must be imposed at a meaningful level so as to deter the CFMEU and others from committing further similar contraventions.
Court round up
Work stoppage on Monash Freeway project
This new ABCC proceeding relates to a work stoppage at a road-widening project on the Monash Freeway in South-East Melbourne.
On 30 April 2008 CFMEU Officer Mr Gareth Stephenson and Mr Harry Slater, a CFMEU representative employed by the head contractor, Fulton Hogan, addressed two meetings at the site. At the conclusion of the meeting most of the employees failed to perform work on the site for the remainder of the day.
The ABCC alleges that the CFMEU, Mr Stephenson and Mr Slater engaged in and procured unlawful industrial action.
The matter is listed for a further directions hearing on 8 October 2009.
Related Documents:
ABCC Media Backgrounder: Wotherspoon v CFMEU, Stephenson and Slater
Industrial action allegedly taken over agreement
The ABCC has taken action against the CFMEU and official Daniel Berardi for allegedly engaging in unlawful industrial action at a construction site in Hawthorn, Victoria.
It is alleged that Mr Berardi engaged in the unlawful conduct because the head contractor was not a party to a collective agreement with the CFMEU.
On 19 July 2007 Mr Berardi held a stop work meeting at the site and, it is alleged, directed subcontractors’ employees at the site to cease work for the remainder of the day.
A directions hearing in the Federal Magistrates Court is scheduled for 21 August 2009.
Related Documents:
ABCC Media Backgrounder: Gregor v CFMEU and Berardi
ABCC alleges freedom of association breach
The ABCC recently instigated a proceeding before the Federal Magistrates Court in Melbourne alleging that the CFMEU and organiser Mr Tony Ioannidis contravened the freedom of association provisions of the Workplace Relations Act 1996 (WR Act).
On 3 March 2008 Mr Ioannidis allegedly told two employees of a concreting subcontractor at the Westfield Doncaster Shoppingtown project that they were not allowed to work on the site unless they became members of the CFMEU.
A directions hearing is scheduled for 10 August 2009.
Related Documents:
ABCC Media Backgrounder: Cozadinos v CFMEU and Ioannidis
Industrial action at Flinders University site
In a new proceeding before the Federal Magistrates Court in Adelaide, the ABCC alleges that the CFMEU and union official Justin Feehan were involved in two instances of unlawful industrial action.
Mr Feehan held two meetings with employees of several contractors at the Flinders University construction site in Bedford Park, South Australia on 30 May 2008. It is alleged he counselled them not to perform work at the site for the remainder of the day.
A directions hearing is scheduled for 10 August 2009.
Related Documents:
ABCC Media Backgrounder: Flynn v CFMEU and Feehan
New proceeding in Western Australia
The ABCC alleges that the CFMEU, Mr Joseph McDonald and Mr Michael Buchan organised, or aided and abetted, counselled or procured a ban, limitation or restriction on the performance of building work at a construction site in Perth, contravening s.38 of the BCII Act.
On 5 June 2009 Mr McDonald and Mr Buchan visited the site and addressed a group of employees. After the meeting employees of nine contactors stopped work and did not return to work until 9 June 2009.
Mr McDonald attended the site again on 24 June 2009 and addressed employees of contractors engaged in the street outside the site. Employees of four subcontractors engaged to perform work at the site failed to attend for work on 24 June 2009.
On 25 June 2009, Mr Buchan attended the site. Employees of five subcontractors engaged to perform work at the site failed to attend for work on 25 June 2009.
Interim injunctions preventing the respondents from procuring industrial action or organising within 100 metres of the site were granted on 2 July 2009. A hearing took place between 17 and 21 July 2009 to determine whether those injunctions would be extended. The interim injunctions were extended pending the Court's decision, which is likely to be handed down after 4 August 2009.
Related Documents:
ABCC Media Backgrounder: Australian Building and Construction Commissioner v CFMEU, McDonald and Buchah
Action relating to conduct at Docklands construction project
On 6 March 2008, CFMEU Assistant Secretary John Setka entered a Bovis Lend Lease site at North Wharf Road at Docklands, Victoria. Mr Setka allegedly entered the site under the Occupational Health and Safety Act 2004 (Vic) as prescribed by s.756(1) of the WR Act.
The ABCC alleges that while at the site Mr Setka made a serious threat to the personal safety of a Bovis Lend Lease construction manager and a general foreman.
It is alleged that Mr Setka acted in an improper manner while exercising his rights as a permit holder, in contravention of s.767(1) of the WR Act.
A first directions hearing has been scheduled for 10 August 2009.
Related Documents:
ABCC Media Backgrounder: Gregor v Setka
Permit revocation proceeding
The ABCC has commenced a new proceeding before Fair Work Australia. The ABCC seeks the revocation of the right of entry permit held by Mr Brett Harrison, organiser for the CFMEU's Australian Capital Territory branch.
The ABCC alleges that Mr Harrison is not a fit and proper person to hold a permit in accordance with s.513 of the FW Act.
A directions hearing has been scheduled for 2 October 2009.
Related Documents:
ABCC Media Summary: Robertson v Harrison
New proceeding over alleged unlawful industrial action
The ABCC alleges that the CFMEU and Mr Adrian McLoughlin engaged in unlawful industrial action by imposing a ban on building work at a construction site in St Kilda Road, Melbourne in February 2008.
Mr McLoughlin visited the site and allegedly directed employees of a contactor on the site to cease work and take industrial action. A concrete pour that was scheduled to take place was disrupted as a result of the employees stopping work.
A directions hearing before the Federal Magistrates Court in Melbourne has been scheduled for 21 September 2009.
Related Documents:
ABCC Media Backgrounder: White v CFMEU and McLoughlin
Allegation of coercion at Perth Airport site
The ABCC has commenced a proceeding relating to a construction site at the Perth Airport where the CFMEU and organiser Walter Molina are alleged to have contravened the WR Act.
Mr Molina allegedly made false and misleading representations about the obligation of employees at the site to be members of the CFMEU, and took action with the intent to coerce the employees to become members.
The matter will be heard in the Federal Magistrates Court in Perth on 13 October 2009.
Related Documents:
ABCC Media Backgrounder: Radisich v CFMEU, CFMEUW and Molina
Significant penalties awarded for coercion
Penalties totalling $115,000 were imposed by the Federal Court on the CFMEU and organiser Mr Robert Mates for coercing a head contractor to engage a particular person.
The coercion was committed by organising and threatening to organise work stoppages.
ABC Commissioner John Lloyd said the severity of the penalties recognises the seriousness of unlawful coercion and the need to deter industry participants from engaging in such conduct.
These penalties are currently the subject of an appeal by the respondents.
Related Documents:
ABCC Media Statement: CFMEU and union official penalised for coercion
ABCC Media Backgrounder: Williams v CFMEU and Mates