Coercion within building and construction industry workplaces can be a contravention of the BCII Act.
When one party wants a particular outcome and acts to removes the choice or ability to negotiate from the other party, their behaviour could be unlawfully coercive. Coercive behaviour generally involves applying undue pressure to influence a person to make a decision which they would not otherwise have made. Though coercion could take many different forms, an example of how undue pressure could be improperly applied is the taking of industrial action or threatening to take industrial action.
The types of coercion within the building industry that are made unlawful
by the BCII Act are those that relate to:
1. a decision whether to engage an employee or contractor.
2. a decision on the allocation of duties or responsibilities to an employee or a contractor.
3. a decision to make, vary, terminate or extend a workplace agreement or to approve any of these things.
4. a decision to choose a particular superannuation fund or scheme for superannuation contributions.
The WR Act also outlaws coercion relating to the following matters:
1. a decision whether to become a member or officer of a union or whether to remain an officer or member of a union.
2. a decision by an employee whether to seek union representation during discussions for a proposed workplace agreement.
3. a decision whether to enter into a reform opt-in agreement under the IC Act.
These prohibitions also apply to building industry participants.
In a recent ABCC court proceeding, Stuart v CFMEU, Parker & Corbett, penalties totalling $63,000 were imposed on the CFMEU and its official, Mr John Parker, after Mr Parker was found to have coerced a building contractor to employ a particular person. Mr Parker also imposed an overtime ban at the Morwell site just before a person. Mr Parker also imposed an overtime ban at the Morwell site just before a significant concrete pour. In his judgement Justice Tracey stated that the overtime ban was a deliberate breach of the BCII Act and was "serious and designed to coerce Hooker Cockram (the employer) to meet the employment requirement."
If you encounter coercion in relation to your workplace agreement, your union membership status, your decision to engage employees or subcontractors or your choice of superannuation scheme, you should contact the ABCC on 1800 003 338 to receive confidential advice, or submit an online enquiry.
Related Documents: ABCC Fact Sheet - Unlawful Coercion
ABCC Website: Stuart v CFMEU & Ors
The model tender and contract clauses booklet to assist companies in complying with the National Code of Practice for the Construction Industry (the Code) has been updated.
The new booklet now combines the information applicable to contractors and government agencies. The layout makes it easier to follow and more convenient to copy and paste the relevant sections for updating contractual documents.
If you tender for Federal Government work or you contract on a federally funded project, you need to comply with the Code. The Implementation Guidelines for the National Code of Practice for the Construction Industry (the Guidelines) assist you in complying with the Code.
The model contract clauses require contractors to:
- undertake to comply with the Code and Guidelines and ensure all related entities engaged in Australian construction activity comply with the Code and Guidelines
- ensure that subcontractors’, consultants’ and material suppliers’ workplace arrangements comply with the Code and Guidelines before engaging them on the project
- continue to ensure that all contracts on the project include the requirement to comply with the Code and Guidelines
- agree to allow the ABCC to monitor Code compliance on the site and to investigate any breaches of the Code and Guidelines
- acknowledge that the Commonwealth may impose a sanction should contractors not comply with the Code and Guidelines
- agree to comply with the Code and Guidelines on new privately funded construction projects.
The 
Model Tender and Contract Documentation - 225KB document can be found on the National Code page of the ABCC website. They are also available through the workplace.gov.au website.
It is also possible to have your draft documentation reviewed by the DEEWR Agency Compliance Team. They can be contacted on (02) 6240 2471, or via email at building@deewr.gov.au
At the completion of the first quarter of the 2008-09 financial year the ABCC is on target to meet its yearly key performance indicators. The three key performance indicators measure how well the ABCC performs its functions of ensuring workplace relations laws are enforced in the building and construction industry and educating people about their rights and responsibilities.
The key performance indicators of the ABCC are:
- quality and timeliness of advice and assistance provided
by the ABCC
Target - 75% of surveyed clients satisfied or highly satisfied
- timeliness in bringing actions against contraventions of
BCII Act, WR Act, ICA, agreements, awards and orders
Target - 75% of cases commenced within eighteen months
of receipt of complaint
- level of satisfaction of a range of industry participants with
contact aimed at promoting appropriate standards of conduct
Target - 75% of surveyed industry participants are satisfied
or highly satisfied
For the period 1 July 2008 – 30 September 2008:
- Overall client satisfaction with the service provided by the ABCC was high with an average score of 93%. This was measured through client satisfaction surveys completed during the period, and is an 11% improvement from the 2007 results.
- 2 out of the 3 cases issued commenced within 18 months of complaint. Since 1 October 2005 the ABCC has commenced a total of 40 cases, 80% of these were issued within 18 months of complaint.
- 75% of respondents were satisfied with the presentations performed by the ABCC. This data was collected through feedback forms provided at the completion of presentations by ABCC staff to building industry participants.
The results show that the ABCC is committed to performing its functions and providing a quality service to the building and construction industry
On Thursday, 9 October 2008, the Hon Murray Wilcox released a Discussion Paper relating to the creation of the Specialist Division for the building and construction industry within the inspectorate of Fair Work Australia.
The Discussion Paper is available on the Wilcox Review page of the workplace.gov.au website.
Interested parties are encouraged to make submissions in response to the Discussion Paper, which should be sent to:
Wilcox Consultations Secretariat
Department of Education, Employment and Workplace Relations
Location code 10M32
GPO Box 9879
Canberra ACT 2601
Email: fwa_building@deewr.gov.au
The closing date for submissions is Friday, 5 December 2008.
All submissions will be subject to the Freedom of Information Act 1982. Submissions will also be made public on the consultations web site unless marked confidential.
The ABCC has appointed Mr Murray Gregor to the role of Regional Director Southern. Mr Gregor joins the ABCC with 23 years of law enforcement experience.
The Regional Director Southern supports the Assistant Commissioner Operations through planning and managing the work of investigative teams in Victoria and Tasmania. In addition, the position provides high quality advice on operational principles, policy and practice to the executive of the ABCC.
Mr Gregor will play a significant role in working with employer and employee representatives, other government agencies, professional associations and individuals to assist them to understand designated building industry laws and their rights and responsibilities in the industry.
Mr Gregor said he was excited about the opportunity to help the ABCC build on what it had already achieved.
“The ABCC is a vibrant and successful organisation that has achieved a lot in its relatively short life. It is with enthusiasm that I commence my role as Director Operations Southern and look forward to making a positive contribution to the excellent work that is being conducted by the ABCC in this challenging environment,” he said.
Mr Gregor comes to the ABCC from the Victoria Police, and has extensive experience in the management of multidisciplinary investigation teams.
Penalties imposed on CFMEU and Shop Steward
The CFMEU was ordered to pay penalties totalling $49,550 and CFMEU shop steward Mr Jason Deans to pay $12,000 ($6,000 suspended) for offences arising out of inductions of two labour hire workers at the CSL Morgan Facility Project at Parkville in Victoria.
Federal Magistrate Burchardt found that during inductions on 12 September 2006 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, and delayed a carpenter in commencing work at the site by requiring him to settle outstanding membership fees.
Related Documents:
ABCC Media Backgrounder Stuart-Mahoney v CFMEU and Deans
ABCC Media Statement:
Penalties against CFMEU and shop steward reinforce workers' rights to choose
Industrial Action at Pulp Mill
The ABCC recently filed proceedings against three unions and three union organisers over alleged unlawful industrial action at the Maryvale Paper Mill in Morwell, Victoria.
On the morning of 25 October 2007, employees of five contractors working on the Pulp Mill Project at Maryvale Paper Mill allegedly left the site without the authorisation of their respective employers and did not return to work that day.
The ABCC alleges that the AWU, CEPU and the AMWU through the conduct of their organisers breached the BCII Act and the WR Act. Alleged breaches include abetting counselling or procuring unlawful industrial action and being knowingly concerned in unlawful industrial action.
Related Document:
ABCC Media Backgrounder Stuart v AWU, Lee, CEPU,Mooney, AMWU & Dodd
Crane installation interrupted
The installation of a crane at a Bovis Lend Lease site at Southbank was interrupted after a union official allegedly engaged in unlawful industrial action.
Proceedings have been filed in the Federal Court at Melbourne against the CFMEU and Noel Washington. Mr Washington allegedly engaged in unlawful industrial action and aided and abetted others to take unlawful industrial action.
In October 2006 Mr Washington allegedly entered the site without prior notification and held a stop-work meeting with four employees engaged to install the crane. Mr Washington allegedly directed the employees not to perform any work that concerned the crane installation for part of that afternoon.
The ABCC alleges that Mr Washington and the CFMEU by the conduct of Mr Washington, contravened s.38, s.44(1) and s.45 of the BCII Act.
Related Document:
ABCC Media Backgrounder Cruse v CFMEU & Washington
AWU and delegate engaged in unlawful industrial action
The Federal Court at Sydney found that the Australian Workers Union (AWU), AWU (NSW) and delegate Joseph O’Connor took unlawful industrial action at the Lake Cowal gold mine site, near West Wyalong in NSW in October and November 2005.
Her Honour Justice Jagot found that the two incidents of industrial action contravened s.38 of the BCII Act, s.170MN of the WR Act and the relevant Certified Agreement.
A directions hearing has been scheduled for 28 October 2008 in relation to penalties.
Related documents:
ABCC Media Backgrounder Alfred v Wakelin & Ors
ABCC Media Statement:
Federal Court finds unlawful industrial action by AWU at Lake Cowal in NSW
ABCC Media Statement:
Penalties imposed for industrial action at Lake Cowal
ABCC Media Statement:
Alleged unlawful industrial action at NSW gold mine site
ABCC Appeal Upheld: Coercion to Pay Strike Pay Penalised
An appeal by the ABCC has been upheld by the Full Court of the Federal Court [FCAFC 179]. The Full Court found that the CFMEU contravened the pre-reform WR Act by making a claim for strike pay and organising and taking industrial action with the intent to coerce Multiplex to make the strike payments.
This proceeding was initiated by the Building Industry Taskforce and continued by the ABCC.
On 1 August 2003, a fatality occurred on a farm in Shepparton, nearly 200 kilometres from the Melbourne CBD. Several days later, there was a spate of industrial action across building sites in Melbourne CBD.
The union policy at the time was to stop work while the safety committee conducted safety audits on all building sites after a serious accident. This conduct is no longer union policy.
On 5 and 6 August 2003, a CFMEU shop steward, Grant Thorson organised unlawful industrial action on the Concept Blue site. Mr Thorson organised the industrial action with the intent to coerce Multiplex Limited to pay its employees strike pay for industrial action on those days.
Related documents:
ABCC Media Statement: ABCC Appeal Upheld: Coercion to Pay Strike Pay Penalised
Penalty handed down for coercion
On 5 November 2008, in the Federal Court in Melbourne imposed a penalty of $4,000 on the CFMEU.
The penalty was imposed for a contravention of s.170NC of the pre-Workchoices WR Act. This prohibited taking or threatening action to coerce another person to make a certified agreement.
Marshall J. declared that CFMEU delegate Mr Fry had breached sections 170NC and 298SC of the WR Act.
His Honour also made a declaration that the CFMEU had breached s.298SC(c) of the pre-reform WR Act.
Section 298SC(c) of the pre-reform WR Act prohibited making false or misleading statements about another person’s obligation to join the CFMEU.
A hearing for costs has been adjourned until 30 November 2008.
Related Documents:
ABCC Media Backgrounder: Cruse v CFMEU, Bannister, Hoffman and Fry