06 August 2015CFMEU’s Joe McDonald allegedly leads strike action after head contractor obeys the law

Director of Fair Work Building Industry Inspectorate v CFMEU & Joseph McDonald & Ors

Allegations as outlined in Fair Work Building & Construction’s (FWBC) statement of claim, these may vary over the course of the proceeding.

Background

Site

1.     The Lakeside Joondalup Redevelopment Project, involving a brand new full line Myer Department Store and approximately 70 new specialty stores 420 Joondalup Drive, Joondalup, Western Australia.

Respondents

2.     The CFMEU, CFMEU Assistant Secretary (WA) Joseph McDonald and 49 workers employed on the Lakeside Joondalup Redevelopment Project.

30 May 2014

3.     FWBC alleges that at approximately 6.45am, 50-100 workers from the project were gathered outside one of the entrance gates to the site.

4.     FWBC alleges that CFMEU assistant state secretary (WA) Joseph McDonald and CFMEU officials Tawa Harris and Mick Hogan were standing with the workers and that Mr McDonald stood in the middle of the gathering and addressed the crowd.

5.     FWBC alleges that the meeting ended at approximately 7.07am and the workers who had attended the meeting then attended for duty to perform work on the project.

6.     FWBC alleges that at approximately 7.30am, Mr McDonald, Mr Harris and Mr Hogan attended the site office and met with the senior construction manager.

7.     Mr McDonald allegedly said “I held a pre-work meeting with the workers and the workers have advised they do not wish to work on the rostered day off (RDO) of Tuesday 3 June 2014,” to which the senior construction manager responded “We are requesting workers to work the RDO due to programming pressures, but we’re not going to force anyone to work if they do not want to”.

8.     FWBC alleges that Mr McDonald responded “Don’t pressure the workers to work on the RDO,” to which the senior construction manager replied “the site will be open and we are only requesting workers to work.” Mr McDonald responded “I don’t think many workers will turn up”.

9.     FWBC alleges that Mr McDonald organised the May 30 industrial action.

3 June 2014

10.   FWBC alleges that at approximately 10am, Mr McDonald met with the site manager at a site office.

11.   FWBC alleges that Mr McDonald said “There will be another meeting tomorrow because you deducted hours for some of the [company name] workers,” to which the site manager responded “the workers had to be penalised four hours because the meeting went into work time”.

12.   FWBC alleges that at about 2.50pm Mr McDonald called the senior construction manager and asked “Why are four [company name] workers being docked four hours pay for attending the pre-work meeting organised by the CFMEU on Friday 30 May 2014?” to which the senior construction manager responded “The Fair Work Act dictates that any worker attending the industrial action during working hours is to be penalised a minimum of four hours pay.”

13.   Mr McDonald allegedly said “I agree the workers attended a meeting which ran approximately 7 or 8 minutes into working time but they should not be penalised for this. Can there be some flexibility?” The senior construction manager said “The workers will not receive the four hours pay.”

14.   Mr McDonald allegedly responded “There will be another meeting tomorrow morning with the workforce to discuss.”

4 June 2014

15.   FWBC alleges that at around 6.50am, approximately 60 workers were gathered outside one of the entrance gates to the site. Mr McDonald, Mr Harris and Mr Hogan were present.

16.   FWBC alleges that at approximately 7am, Mr McDonald addressed the meeting and said that the workers had been docked four hours’ pay for attending the 30 May meeting, that they worked for about three hours without being paid and that had the head contractor had told them immediately following the 30 May meeting that their pay would be docked, they would have sat in the shed until the 4 hours were up.

17.   FWBC alleges that at approximately 7.20am, Mr McDonald and Mr Hogan met with the senior construction manager.

18.   During this meeting Mr McDonald said to the senior construction manager “I’ve just met with the workers again. I’m concerned about the workers being docked pay in relation to the meeting on Friday 30 May. It’s unreasonable and should be reconsidered.”

19.   The senior manager said “[head contractor] will comply with the Fair Work Act and its requirements concerning payment for unprotected industrial action. This means the employees will have four hours deducted as per the Fair Work Act”.

20.   Mr McDonald then allegedly asked “Will the workers be docked today?” to which the senior construction manager responded “Yes, the meeting is about 20 minutes into normal working hours”.

21.   FWBC alleges that immediately following this conversation, Mr McDonald returned to the group of workers and told them that [head contractor] would be standing by the rule of docking the workers 4 hours’ pay and said “What do you want to do?”

22.   FWBC alleges that Mr Harris interjected with “We’ve had enough of this” and Mr McDonald said “We’ve had enough of this, lets put it to a vote”.

23.   A crowd member then allegedly said “Yes, we’ll second that”.

24.   Mr McDonald allegedly said “Everyone in favour of going home raise your hands.”

25.   FWBC alleges that about 70 per cent of the crowd raised their hands.

26.   Mr McDonald allegedly said “Everyone against going home raise your hands”.

27.   FWBC alleges approximately 10 workers raised their hands.

28.   Mr McDonald allegedly said “That’s it. Everyone go home. There’ll be no meeting tomorrow and just go back to work tomorrow as normal”.

29.   FWBC alleges that following this meeting, the crowd of workers who were scheduled to perform work on the project on this day failed to attend for work.

30.   FWBC alleges that the 4 June industrial action was organised by Mr McDonald.

Contraventions

31.   FWBC alleges that 13 employees contravened s 417(1)(a) of the Fair Work Act by engaging in industrial action on 30 May 2014.

32.   FWBC alleges that 49 employees contravened s 417(1)(a) of the Fair Work Act by engaging in industrial action on 4 June 2014.

33.   FWBC alleges Mr McDonald and the CFMEU contravened s 417(1)(a) of the Fair Work Act by organising industrial action on 30 May 2014 and also 4 June 2014.

Maximum penalties

34.   The maximum penalties available to the court in this case are $10,200 for an individual and $51,000 for a corporation, uncluding a union.

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