Entry to sites - Acting in an ‘improper manner’ can be unlawful
The ABCC currently has eight matters before the courts that involve allegations of those seeking to exercise rights as a permit holder ‘acting in an improper manner’. In each of these cases, the nature of the alleged ‘improper conduct’ varies. Building industry participants should be aware of what ‘acting in an improper manner’ means and what their rights and responsibilities are.
The Fair Work Act 2009 (FW Act) establishes a framework that industry participants must follow when it comes to legally exercising right of entry.
Site occupiers can face court if they intentionally hinder or obstruct a union official who is legally exercising right of entry under the FW Act on their site. The Act is very clear. Section 501 prohibits refusing or unduly delaying entry to a permit holder entitled to enter a site. Section 502 prohibits a person deliberately hindering or obstructing a permit holder exercising rights.
Equally, union officials can face legal action if they deliberately hinder, obstruct or otherwise act in an improper manner while exercising right of entry. Section 500 prohibits a permit holder from hindering and obstructing or otherwise acting in an improper manner. There is a distinction between intentionally hindering and obstructing and acting in an improper manner.
For the purposes of ‘acting in an improper manner’, an offence occurs when a person with knowledge of the duties, powers and authority of their position breaches the standards of conduct expected of them.
Examples of conduct that may be considered improper include:
- making threats to others about their personal safety;
- directing abuse or profanities at others on a site;
- physically assaulting others on a site;
- failure to comply with right of entry requirements, such as providing 24-hours notice of the intention to enter; or
- showing intentional or reckless disregard for reasonable requests of occupier of the site.
This list is not exhaustive. The courts determine what constitutes improper conduct under the FW Act.
Remedies for engaging in prohibited conduct include court-imposed civil penalties or Fair Work Australia’s suspension or revocation of a right of entry permit.
For advice about right of entry matters contact that ABCC hotline on 1800 003 338.
Further information: Section 500 – Fair Work Act 2009
Fact sheets:
What to do when a union official comes on to your site
Federal Union Officials: What to do when visiting a site
ABCC’s new ROE pocket guide now available
The ABCC has just released an updated version of the popular ‘3-Step Guide to Right of Entry’.
The right of entry card has been re-written and restructured in line with changes arising from the Fair Work Act 2009. Right of entry requirements are now more elaborate and as a result the card is larger. The ROE card now summarises the different reasons and requirements for entry.
The card takes a new fold-out format. This allows for the presentation of a flow-panel that matches the different reasons for entry with the requirements to gain entry. When folded, the 3-step guide is still business card size.
Industrial disputation rises in construction but falls overall
Australian Bureau of Statistics (ABS) industrial disputation data for the March 2010 quarter reveals the number of days lost to industrial disputation in the construction industry has risen to a level not seen since 2005.
For every 1000 employees in the industry 17.2 days were lost to industrial disputation, a sharp increase on the 10.4 days per 1000 employees lost in the December 2009 quarter.
While the figure is the highest since the December 2005 quarter, it is still markedly lower than the level of disputation that the industry experienced before the Building and Construction Industry Improvement Act 2005 (BCII Act) was enacted.
Large-scale industrial action at the Pluto LNG project—involving a prolonged strike attended by more than a thousand workers—has had a significant bearing on the figures.
The rise is in sharp contrast to a general decline in disputation across all industries, which saw 3 days lost per 1000 employees, down from 4.7 days in the December 2009 quarter.
The construction industry accounted for 43 per cent of days lost across all industries, contributing 12,300 days to the national total of 28,800 days lost to industrial disputation.
The Fair Work Act – one year on
The beginning of July 2010 marks one year since the Fair Work Act 2009 (FW Act) took effect, replacing the Workplace Relations Act 1996. Changes introduced by the FW Act impact on many building and construction industry participants.
Legislative changes
Several changes that affect the building industry were introduced by the FW Act including changes to right of entry, industrial action, strike pay and freedom of association laws. The agreement making system experienced the most significant change, including the introduction of new safety-net arrangements.
A summary of the changes that affect the building and construction industry was covered in the June 2009 Industry Update.
The commencement of two key elements of the FW Act was delayed to 1 January 2010:
- The National Employment Standards, which comprise 10 minimum standards of employment for employees in the national workplace system; and
- Modern awards that establish a national minimum set of conditions for employees who work in the same industries or occupations.
A number of modern awards apply in the building and construction industry. For more information on modern awards and wage rates contact the Fair Work Info line on 13 13 94.
The FW Act and the ABCC
The majority of ABCC cases before the courts involve alleged breaches of the Building and Construction Industry Improvement Act 2005 (BCII Act), however the ABCC has commenced three legal cases that involve alleged breaches of the FW Act. The alleged contraventions include hinder and obstruct (s.500), misrepresentation (s.503), coercion (s.348), breaches relating to strike pay (ss.474(1) and 475(2)) and taking action against a permit holder (s.507)
The ABCC plies its trade
Following successful appearances at regional NSW agricultural shows, ABCC staff have taken the opportunity to talk to members of Victoria’s building industry at the National Tradesman’s Expo, which was held at the Melbourne Showgrounds from 4-6 June 2010.
ABCC Inspectors and National Code officers were on hand for the three-day event to provide information packs, advice and assistance to many of the show’s 7,300 attendees. The ABCC’s participation in the event enabled our staff to speak directly to people in the industry about the role of the agency and how it can assist building industry participants, workplace laws in the building industry and compliance with the National Code and Guidelines.
The ABCC is planning to attend a number of upcoming trade shows in Victoria and other states to meet with building industry participants and provide them with information about their rights and responsibilities under workplace laws.
ABCC advisers are also available to give on-site presentations on a range of topics. Call the ABCC hotline on 1800 003 338 to enquire about having ABCC staff attend your workplace.
July court round up
Legal proceedings
Coercion and strike pay contraventions alleged at Southbank One project
The ABCC has taken action against construction company Brookfield Multiplex, the CFMEU and a CFMEU shop steward over alleged contraventions involving coercion and strike pay.
In proceedings filed in the Federal Court at Melbourne on 16 June 2010 the ABCC alleged CFMEU shop steward Robert Mates:
- attempted to coerce the general manager of a subcontractor to employ and re-employ certain people and to pay entitlements to those people
- convened an unauthorised stop-work meeting to further these demands
- threatened to disrupt or stop the subcontractor’s work unless the demands for entitlements were met.
The ABCC also alleged Mr Mates demanded the subcontractor’s workers be paid strike pay for the stop-work meeting, attempted to coerce the subcontractor to pay strike pay and was involved in the payment of strike pay. The ABCC alleges the CFMEU is liable for the conduct of Mr Mates.
The ABCC alleges Brookfield Multiplex is liable for Mr Mates’ conduct, excluding the strike pay demand.
The site involved was an apartment construction project known as Southbank One at 174-184 City Road, Southbank, Victoria. The alleged unlawful behaviour occurred between July and August 2009.
A first directions hearing is scheduled for 23 July 2010.
ABCC media backgrounder: Helal v Brookfield Multiplex Constructions Pty Ltd, CFMEU & Mates
Workers strike after bushfires stall construction of Gippsland water treatment plant
A two-day break in the construction of a water treatment plant at Gippsland’s Tarago Reservoir at the time of Victoria’s 2009 bushfires resulted in workers allegedly taking unlawful industrial action in breach of their workplace agreement.
The head contractor closed the site as a safety precaution on 9 and 10 February 2009 because of bushfires in the area. When they returned to work on 11 February, the director of Bell Wiggins Pty Ltd told his employees he did not think they would be paid for the days the site was closed and they should take these days as rostered days off.
On Friday 13 February 2009, CEPU organiser Peter Mooney allegedly convened a meeting of the employees. Immediately following the meeting sixteen employees of two subcontractors on the site allegedly went on strike for the remainder of that day.
The ABCC filed legal proceedings in the Federal Magistrates Court against the CEPU and Mr Mooney for being involved in industrial action and being involved in industrial action before the nominal expiry date of a collective agreement.
ABCC media backgrounder: Cozadinos v CEPU and Mooney BLF organiser disrupts concrete pour at River Point Apartments site in Queensland
The ABCC has alleged BLF organiser Kane Pearson blocked a large scale concrete pour with his vehicle at the River Point Apartments site in West End, Queensland.
On 5 June 2009 BLF organiser Mr Pearson allegedly parked his car behind the first concrete truck accessing the pump, preventing the waiting line of concrete trucks from accessing it.
Police were called to remove Mr Pearson but by the time he moved his vehicle the concrete pour had to be cancelled as it was too late to resume.
The ABCC alleges that the BLF and Mr Pearson breached s.767 (1) of the Workplace Relations Act 1996 by intentionally hindering or obstructing people working on the site, or otherwise acting improperly while exercising rights as a permit holder.
ABCC media backgrounder:Lovewell v BLF and Pearson
Right to enter Woolworths project misrepresented
The ABCC has a new matter in the Federal Magistrates Court alleging CFMEU official Fergal Doyle contravened the Workplace Relations Act 1996. Mr Doyle allegedly misrepresented his right to enter the Woolworths supermarket complex site in Beaconsfield on 22 May 2009.
CFMEU official Fergal Doyle allegedly attended the Becon Constructions site to inspect alleged contraventions of the Occupational Health and Safety Act 2004 (Vic) (OHS Act). Mr Doyle did not hold a permit required for OHS entry.
Mr Doyle told the site supervisor he did not have to show his permit and that Becon’s right of entry protocols were wrong. The ABCC alleges Mr Doyle and the CFMEU contravened the WR Act twice by his actions at the project.
ABCC Media Backgrounder: Lukies v Doyle and CFMEU