20 October 2015CFMEU safety rep refuses site access to company without the ‘right’ union agreement

Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union & Anor

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

Background

  • On or about 11 November 2013 a rope access sealing subcontractor entered into a contract with a structural work subcontractor to provide sealing services on a residential apartment building project in Melbourne CBD, Victoria.
  • The rope access sealing subcontractor had previously been engaged to carry out similar work by the structural work subcontractor.
  • Rope access sealing by abseiling can offer a significantly cheaper alternative to using scaffolding and cranes, because it requires less labor and equipment. It is well suited to hard to access areas such as lift wells.

Enterprise Agreement

  • Since 2011, the employees of the rope access sealing subcontracting company had been covered by an enterprise agreement to which the CFMEU was a party. The agreement had a nominal expiry date of 2015.
  • FWBC alleges that from at least March 2012, the CFMEU prepared a standard-form specialised rope access enterprise agreement (CFMEU Specialised Rope Access Agreement) and entered into the agreement with a limited number of subcontractors.
  • FWBC alleges that CFMEU C&G Victoria branch President Ralph Edwards exercised discretion as to which subcontractors were permitted to enter into the CFMEU specialised rope access agreement.
  • As at mid-October 2013 there were only five subcontractors covered by the CFMEU specialised rope access agreement.
  • FWBC alleges that on or around October 2013 the owner of the rope access sealing subcontracting company made numerous attempts to contact Mr. Edwards to discuss entering into the CFMEU specialised rope access agreement.
  • FWBC alleges that these attempts included attending the CFMEU’s Carlton offices and waiting there most of the day seeking a meeting with Mr. Edwards.
  • FWBC alleges that Mr. Edwards refused to speak with the owner of the rope access sealing subcontracting company.

28 October 2013

  • FWBC alleges that on or about 28th October two employees of the rope access sealing subcontractor decided to stop paying their CFMEU membership fees. The fees were due and payable by 1 October 2013.

20 November 2013

  • FWBC alleges that two employees of the rope access sealing company attended the site and were request to provide their union membership cards by the site’s acting OHS representative and CFMEU delegate Nick Karamitos.
  • FWBC alleges that the employees were then told by Mr Karamitos “your CFMEU dues are out of date by one month and you won’t be starting on site until you pay up”.
  • FWBC alleges that the employee said words to the following effect “I disagree with the policies of the union in regards to the EBA Agreements and we aren’t paying our membership fees until Ralph Edwards or someone from the CFMEU speaks to us”.
  • FWBC alleges that following the exchange Mr Karamitos contacted the CFMEU’s Carlton office and had a number of conversations with Vice President of the CFMEU C&G Vic Branch Derek Christopher.
  • FWBC alleges Mr. Karamitos said words to the following effect “you can’t do work here. You need to have the EBA, which we’re not going to give you”.
  • FWBC that as the employees were preparing to leave the site Mr. Karamitos said words to the following effect “I’m following orders from the CFMEU, they’re telling me what to do here and they’re telling me not to let you on the job.”
  • FWBC alleges that it was the CFMEU’s position that the rope access sealing subcontractor and its employees would not be allowed access to site because it did not have a CFMEU specialised rope access agreement.
  • The rope access sealing subcontractor did not perform any work on the site or receive any payment pursuant to the contract entered into on or about 11 November 2013.

Contraventions

  • FWBC alleges that Mr. Karamitos, as an official of the CFMEU, contravened section 347 of the Fair Work Act 2009 by:
    • taking adverse action by preventing the two employees from working because they did not comply with the requirement to pay arrears in membership fees;
    • taking adverse action by preventing the rope access sealing subcontracting company from performing building work because it was proposing to exercise its workplace right to direct the employees to performance rope access sealing work at the site; and
    • taking adverse action by preventing the rope access sealing subcontracting company from exercising its workplace right to direct its employees to performance rope access sealing work at the site
  • FWBC alleges that Mr. Karamitos contravened section 347 of the Fair Work Act 2009 by taking adverse action by preventing the rope access sealing subcontracting company because they did not comply with the requirement to have a specialised rope access enterprise agreement.
  • FWBC alleges that Mr. Karamitos twice contravened section 354(1)(a)(ii) by discriminating against the rope access sealing subcontracting company by preventing them from performing building work because their employees were not covered by a CFMEU rope access enterprise agreement, and because their employees were not covered by the CFMEU specialised rope access enterprise agreement.
Maximum penalties
  • The maximum penalties available to the Court in this matter are $10,200 for an individual and $51,000 for a corporation, including a union.
PDF icon Media Backgrounder - CFMEU refuses to negotiate enterprise agreement then refuses site entry.pdf