29 May 2014CFMEU’s National Secretary Dave Noonan facing court after children’s hospital blockade

Fair Work Building and Construction v Construction, Forestry, Mining and Energy Union and others

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

  1. Fair Work Building & Construction has launched proceedings in the Federal Court of Australia against the CFMEU, the CFMEUW, David Noonan, Joseph McDonald, Mick Buchan and Tawa Harris.
     
  2. At the time of the allegations, David Noonan was the National Secretary of the CFMEU, Construction and General Division. Joseph McDonald was the Assistant State Secretary of the CFMEU and CFMEUW. Mick Buchan was the State Secretary of the CFMEU and CFMEUW. Tawa Harris was an organiser employed by the CFMEU and CFMEUW.
     
  3. FWBC alleges the Respondents organised and incited a blockade at the New Children’s Hospital site in Perth with the intention of coercing head contractor John Holland to meet their  demands.

Background

  1. Since about May 2013, the CFMEU and CFMEUW had maintained a demand that John Holland make an enterprise agreement with  the CFMEU which applied common terms and conditions to all workers on the site (including non-John Holland workers).
     
  2. On 2 May 2013 the CFMEU published a media release outlining its demands for a “whole of site” Enterprise Agreement.
     
  3. On 17 July 2013, a notice appeared on a CFMEU Facebook page stating that a meeting would be held at the New Children’s Hospital site on 18 July 2013 and that Noonan and Buchan would address the attendees.
     
  4. On 17 July 2013, the CFMEU produced and distributed a flyer advertising a meeting to be held at the New Children’s Hospital site on 18 July 2013, which Noonan and Buchan would address.
     
  5. John Holland had scheduled a large concrete pour for 18 July 2013 at the site.
     
  6. The concrete pour was a critical path activity for the project and any delays or disruption to the concrete pour would affect project completion and contractual milestones and expose John Holland to significant financial detriment.
     
  7. Noonan, McDonald, Buchan and Harris knew the significance of the concrete pour.
     

18 July 2013

  1. CFMEU and CFMEUW officials started arriving in the vicinity of the site’s main gate from 4.30am.
     
  2. Sometime between 4.45am and 5am, Harris delivered two bundles of blue flags, each bearing the CFMEU’s logo and insignia to the main site entrance. Other people took the flags and displayed them prominently at various locations in the site’s vicinity.
     
  3. At about 4.48am, McDonald spoke to a person driving a white utility. The driver then parked the vehicle in the slip lane, blocking other vehicles from accessing the site at gate 1.
     
  4. Noonan and Buchan arrived at the site at about 5.20am.
     
  5. By about 5.45am:
    1. Approximately 200 people, including Noonan, McDonald, Buchan and Harris were gathered in the main site entrance’s vicinity.
    2. Concrete trucks had arrived in preparation for the concrete pour
    3. Groups of about 50 people each and at least one vehicle were blocking the two slip lane entrances on Winthrop Avenue.
       
  6. By 6.45am:
    1. A crowd of approximately 400 people had assembled at the main site entrance, including project employees.
    2. Noonan, McDonald, Buchan and Harris were in or in close proximity to the crowd, and were mingling with or co-ordinating the conduct of the crowd.
    3. The crowd had completely blocked access to the site. People and vehicles were unable to enter the site.
    4. Police were in attendance but unable to disperse the crowd to facilitate site access.
       
  7. The concrete trucks could not access the site and workers were not able to enter the site. The concrete pour could not happen.
     
  8. By 8.30am the crowd at the main site entrance gate had increased to approximately 600 persons. The crowd included Noonan, McDonald, Buchan and Harris, numerous other CFMEU and CFMEUW officials and members, project employees and other unknown people. Many people in the crowd were wearing CFMEU-branded clothing or carrying CFMEU flags.
     
  9. At roughly 9.30am, McDonald addressed the crowd gathered at the site entrance. The crowd then moved away from the site and followed McDonald to an entrance to a park on the west side of Hospital Avenue.
     
  10. McDonald, Noonan and Buchan addressed the crowd, which was now in the vicinity of the park, from the back of a utility, using a microphone and speaker.
     
  11. In addressing the crowd, Buchan pointed towards the project site and said words to effect “these pricks in here”. Buchan also said words to the effect: “the one important thing that has happened here today is we send a clear message to everyone around here that’s here today that we can pull the numbers whenever we f***ing need them and we’ll do whatever we need to do”.
     
  12. Noonan said words to the effect: “We made a decision about when we were going to go there, when we were going to stop and when we were going to call this meeting and we did not walk away from the gate one minute before we were ready.” Noonan also allegedly said words to the effect: “This is not over, we are not finished with John Holland."
     
  13. McDonald allegedly said words to the effect: “We don’t go back to work today”, “We will be back at the gate”, “We will come back, and we will come back and we will come back” and “We are the union and we called the shots today”.
     
  14. FWBC alleges that McDonald, Noonan and Buchan directed, encouraged, persuaded or procured workers not to perform any work at the site on 18 July 2013.
     
  15. FWBC alleges that Noonan, McDonald, Buchan and Harris organised, coordinated, incited, participated in and controlled the blockade and protest to disrupt the concrete pour with the intent to coerce John Holland to meet the CFMEU’s enterprise agreement demands.
     
  16. FWBC alleges that Noonan, McDonald, Buchan and Harris took adverse action against John Holland because it did not comply with the CFMEU’s enterprise agreement demands.
     
  17. The matter is listed for a directions hearing on 24 June 2014.
     
  18. The maximum penalties available to the court in this matter are $10,200 per breach of the Fair Work Act 2009 for an individual and $51,000 per breach for a corporation (which includes unions).
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