2008 Court Update – the year in review
Reforming the industry by enforcing workplace laws
This issue of Industry Update looks at ‘the year that was’ in 2008. The ABCC plays an important role in educating building and construction industry participants about workplace laws. The ABCC is also charged with the responsibility of prosecuting contraventions of these laws.
Summaries of last year’s significant court judgements highlight many of the laws of which building industry participants must be aware.
ABC Commissioner John Lloyd says “successful court outcomes serve as a deterrent to those who may contemplate contravening the law. They should realise there is a good chance they will be held accountable for unlawful conduct.
In 2003 it was found that respect for the law was markedly less in the building and construction industry compared to other industries. Today, this difference in respect for the law has narrowed.
The ABCC will continue to be vigilant during 2009. We will continue to institute proceedings when necessary.”
Information about workplace laws in the building and construction industry can be obtained by calling the ABCC hotline on 1800 003 338 or sending an online enquiry via the ABCC website.
Twenty-six percent of cases involve unlawful industrial action
Twenty-six percent of the ABCC’s prosecutions in 2008 involved unlawful industrial action. Penalties totalling $107,000 were ordered by the courts in 2008 as a result of the ABCC prosecuting unlawful industrial action.
Unlawful industrial action occurs when work stoppages or restriction are ‘industrially-motivated’, ‘constitutionally-connected’ and not ‘excluded actions’. It is
important to know your rights and responsibilities when it comes to industrial action.
The importance of following lawful dispute resolution procedures is illustrated by the heavy penalties awarded in the two significant cases detailed below.
Further information:
Fact Sheet: Unlawful Industrial Action
Stuart v CFMEU, Parker & Corbett
In September 2008, the Federal Court at Melbourne penalised the CFMEU and organiser John Parker a total of $63,000 for unlawful industrial action and coercion.
During October 2005 Mr Parker and CFMEU organiser Charles Corbett were working on a Hooker Cockram Projects Ltd site in Morwell, Victoria.
Mr Parker and Mr Corbett recommended that workers at the site impose an overtime ban until the company agreed to employ an apprentice.
Mr Corbett told Hooker Cockram that the site would be picketed and closed for a week if any worker was engaged after 3.30pm, the normal closing time. As a result of the ban and threats, Hooker Cockram was forced to reschedule works and cancel a concrete pour. The overtime ban was lifted on 12 October 2005 after Hooker Cockram and the State of Victoria promised to resolve the issue.
The CFMEU and Mr Parker admitted to engaging in unlawful industrial action, and taking industrial action with intent to coerce Hooker Cockram to employ an apprentice. The CFMEU was ordered to pay penalties of $55,000 for the breaches and Mr Parker was ordered to pay $8,000 (fully suspended).
Justice Tracey ordered the substantial penalties due to the deliberate timing of the overtime ban aimed at causing disruption to work on the project. He further concluded:
“No apology has been given to Hooker Cockram…There is no evidence of any regret, contrition or remorse on the part of the CFMEU or Parker.”
Temple v Powell CFMEU (WA) McDonald & CFMEU
In May 2008, the Federal Court at Perth imposed penalties totalling $35,000 on the CFMEU, CFMEU (WA) and their representatives, Joseph McDonald and Michael Powell, for unlawful industrial action.
In August 2005, workers at a nickel mine construction site in Ravensthorpe, Western Australia, took strike action on two occasions immediately following meetings conducted by union officials.
The first strike took place on 17 August 2005 when 400 workers went on strike for 48 hours after a meeting with CFMEU Assistant Secretary, Mr McDonald, and organiser, Mr Powell. They sought a number of claims relating to the Ravensthorpe site, including the reinstatement of two dismissed workers.
A second strike followed on 24 August 2005 when 20 employees went on strike for 24 hours following a meeting with Michael Powell. The strike was in support of a claim to have the two dismissed workers reinstated.
The CFMEU, CFMEU (WA), Mr McDonald and Mr Powell admitted to engaging in unlawful industrial action.
In his 2008 decision, Justice Dowsett said:
“Where the parties have agreed upon dispute resolution procedures there is nothing oppressive about insisting upon their complying with the terms of such agreement. The strike action was quite arbitrary. The absence of any prior negotiations concerning the claims suggests that they may not have been the real, or sole, reason for the strike.”
Use your assertion when it comes to ‘coercion’
Coercion continues to be an issue on building sites. Twenty-three percent of prosecutions during 2008 involved coercion.
Two of the most common types of coercion encountered on building sites are coercion to employ or not employ someone, and coercion to enter into an agreement. Coercion generally involves the application of pressure resulting in a lack of choice, and often goes hand-in-hand with threatened industrial action.
It is unlawful for a building industry participant to behave coercively in relation to agreements, union membership, superannuation schemes, independent contracting arrangements or other workplace matters.
The case featuring industrial action above, Stuart v CFMEU, Parker and Corbett, also included unlawful coercion contraventions. The CFMEU and Mr Corbett were found to have unlawfully coerced a builder in relation to the engagement of another building employee.
Further information:
Fact Sheet: Unlawful Coercion
A & L Silvestri Pty Ltd and Hadgkiss v CFMEU, CFMEU(NSW), Primmer, Lane and Kelly
In April 2008, the Federal Court at Sydney ordered the CFMEU to pay $23,000 in damages plus interest to the subcontractor and $5,500 in penalties for behaving coercively. CFMEU organiser Michael Lane was ordered to pay a $1,800 penalty.
In October 2003 the CFMEU, CFMEU (NSW), and organisers, Mr Lane, Peter Primmer and David Kelly threatened a head contractor and an earthmoving subcontractor with industrial disruption. The intent of the threat was to coerce the head contractor into making a certified agreement with the CFMEU.
To be or not to be: Freedom of Association
In 2008 almost one third of the ABCC’s prosecutions involved Freedom of Association. Freedom of Association enshrines the right of employees and contractors to choose to join or not to join an industrial association.
Freedom of Association is protected by the Workplace Relations Act 1996 (WR Act), which applies to all employers and employees. The Building and Construction Industry Improvement Act (BCII Act) also has special provisions to reinforce the principle in this industry.
The WR Act and BCII Act prohibit several types of conduct that infringe freedom of association rights. Additionally, it is often illegal to simply threaten to engage in prohibited conduct. Likewise, it is illegal to encourage or incite another person to engage in prohibited conduct.
Further information:
Fact Sheet: Freedom of Association
Stuart Mahoney v CFMEU & Deans
In October 2008, the Federal Magstrates Court at Melbourne ordered the CFMEU to pay penalties totalling $49,550 and CFMEU shop steward Mr Jason Deans to pay $12,000 ($6,000 suspended) for contraventions of the WR Act including freedom of association provisions.
In September 2006 Jason Deans, a CFMEU shop steward inducted two labour hire workers to the CSL Morgan Facility Project construction site at Parkville in Victoria.
Mr Deans told a carpenter, a labourer and an excavator operator on the construction site that they were obligated to be financial members of the CFMEU before they could begin work.
Federal Magistrate Burchardt found that Mr Deans:
- intended to coerce an excavator operator to become a member of the CFMEU
- made a false or misleading representation to the excavator operator that he had to be a member of the CFMEU before he would be permitted to work at the site
- delayed the labour hire carpenter in commencing work at the site by requiring him to settle outstanding membership fees.
FM Burchardt also ordered the CFMEU to pay a labour hire carpenter at the site $190.74 in compensation for wages lost while becoming a financial member of the union.
FM Burchardt said:
“[I]t is difficult to imagine a commission of contravention of the freedom of association provisions by an individual delegate that could be more blatant or significant than those that occurred here. In a most naked way, Mr Deans sought to impose a no ticket, no start policy on Mr Gauci [the excavator operator]; and in the case of Mr Galea [the carpenter] a no financial status, no start policy.”
This judgment and orders made in this proceeding are currently under appeal.
Right of Entry – it’s elementary
The ABCC continues to regularly investigate right of entry matters, and many of the ABCC’s prosecutions deal directly with right of entry. Eighteen percent of 2008’s proceedings involved right of entry contraventions.
The term ‘right of entry’ refers to the right of union representatives to visit worksites for legitimate purposes, as well as the right of employers to conduct their business without undue interference.
In order to enter a site a union representative must hold a valid federal permit, provide at least 24 hours written notice and comply with all other right of entry provisions in the WR Act.
A union representative must have one of the following reasons to enter a site:
- investigate, on reasonable grounds, a suspected breach of the WR Act, a collective agreement, an award, an AWA or an order of the AIRC
- hold discussions with members or workers eligible to be members of the union, or
- perform inspections and functions under an OHS law.
The AIRC’s important decision detailed below highlights the consequences of failing to observe right of entry laws.
Further information:
Fact Sheet: Right of Entry
Radisich v Buchan, Heath, Molina and the CFMEU
In November 2008 the AIRC issued an order preventing a CFMEU official from obtaining a right of entry permit for two years, and suspended the permit of two others.
During three site visits in early 2007 CFMEU (WA) Assistant Secretary Joseph McDonald:
- purported to exercise right of entry under the WR Act when he had no such rights,
- deliberately sought to mislead site owners and the police about his right to enter a building site
- remained on site after repeatedly being asked to leave
- refused to comply with site OHS requirements
- threatened to disrupt a site
- repeatedly made offensive remarks to individuals on the sites.
Mr Molina collaborated with Mr McDonald’s false claim to exercise right of entry when visiting an Armidale Shopping Centre construction site and failed to produce his right entry permit for inspection.
The AIRC in Perth made orders against Mr Molina, suspending his entry permit for two months with a further one month suspension if any further right of entry breaches are committed within 12 months.
It was alleged that Mr Buchan also acted in concert with Mr McDonald when visiting a construction site at Parliament Place without a right of entry permit and deliberately sought to mislead the site owner about his own right to enter.
During two later visits to a Perth Q-Con site Mr Buchan and Mr Heath were alleged to have acted together with Mr McDonald as he falsely claimed to exercise right of entry, as well as refusing repeated directions to leave the site. Mr Buchan and Mr Heath were also alleged to have refused to comply with site OHS requirements, and incorrectly claimed to enter the site to exercise OHS rights.
The AIRC issued an order suspending Mr Buchan’s right of entry permit for three months with a further two months suspension if further right of entry breaches are committed within twelve months. The order also provided that Mr Heath may not make an application for the issue of a right of entry permit for a period of two months.
The AIRC order prevents Mr McDonald from obtaining a right of entry permit for two years. Most importantly the same order prevents other union representatives from assisting him to gain unlawful access to construction sites.
Hinder and obstruction – causes disruption
A person exercising powers under right of entry provisions must not intentionally hinder or obstruct any employer or employee. Equally, an employer must not hinder or obstruct a permit holder who is exercising their rights.
Laws in relation to hindering and obstructing are provided by the WR Act.
Hindering or obstructing must be intentional. This means the action undertaken must be premeditated, or at least it must be reasonably foreseen that it would be likely to hinder or obstruct.
Standen v Feehan
On 23 October 2008 Justin Feehan, a CFMEU official was ordered to pay a total of $1,300 in penalties for hindering and obstructing both employers and employees at an apartment complex site in Adelaide.
In May 2004 Mr Feehan parked his vehicle in such a way that prevented the delivery of concrete to the site and refused to move his vehicle when asked by site management. When Mr Feehan did move his vehicle, he moved it to a position that continued to impede access to the site. Mr Feehan also stood in a position to prevent trucks from entering the site.
Submissions to Wilcox Consultation available online
Submissions to the consultation being conducted by the Honourable Murray Wilcox QC closed on 5 December 2008. The submissions to the Wilcox Consultations Secretariat can be viewed online at Wilcox Consultation Submissions.
The consultation will inform His Honour’s report on establishing a Specialist Division for the building and construction industry within Fair Work Australia.
For further information about the Wilcox Consultation process see:
www.workplace.gov.au.
December 2008 & January 2009 Court Update
Union official abused right of entry
The AIRC in Sydney found that CFMEU organiser Andrew Quirk abused his rights under Part 15 of the WR Act, whilst visiting a Hansen Yuncken building site in Sydney on 4 October 2007.
On 16 December 2008, Senior Deputy President Lacy ordered that Mr Quirk’s entry permit be suspended for one month. The suspension does not take effect unless Mr Quirk is found to have again abused his rights in the next three months. Mr Quirk must lodge with the ABCC a certificate signed by a legal practitioner that he has had explained to him his rights and responsibilities under Part 15.
Related Documents:
ABCC Media Backgrounder: Alfred v Quirk
Industrial action on Bovis Lend Lease sites results in legal proceedings
The ABCC has commenced proceedings against the CFMEU, CEPU and five of their representatives for contravening the BCII Act by engaging in, and aiding and abetting unlawful industrial action.
In May and August 2008 Bovis Lend Lease construction sites in Melbourne were affected by industrial action as workers protested the introduction of a security swipe-card system called “Blue Glue”.
The proceeding is before the Federal Court at Melbourne.
ABCC Media Backgrounder: Wotherspoon v CFMEU, CEPU, Spernovasilis, Gray, Christopher, McLoughlin & Hudson
Industrial action near Geelong found unlawful
On 10 December 2008 the Federal Magistrates’ Court at Melbourne found that the CFMEU and its delegate Craig Johnston engaged in unlawful industrial action.
Mr Johnston contravened s.38 of the BCII Act and s.494 of the WR Act by preventing a delivery of building materials from being unloaded at a Waurn Ponds construction site in March 2007. Federal Magistrate Burchardt has instructed the parties to prepare declarations on further orders.
Related Documents:
ABCC Media Backgrounder: Cozadinos v CFMEU & Johnston
ABCC Interventions – December 2008 and January 2009
The ABCC intervened in four matters during December and January 2008. Two of these proceedings were heard at the AIRC in Melbourne and two at the AIRC in Perth. All of these proceedings related to industrial action.
Further information can be viewed on the ABCC website interventions page
- Caelli Constructions (Vic) Pty Ltd v CMFEU
- Worsley Parsons Services Pty Ltd and others v AWU, AMWU & CEPU
- Monadelphous Engineering Associates Pty Ltd and United Group Resources Pty Ltd v AMWU and CEPU
- United Group Resources Pty Ltd & Others v CFMEU & Others