29 June 2015FWBC alleges the CFMEU, the ACT secretary and 7 officials, broke the law 18 times

Director of Fair Work Building Industry Inspectorate v, Dean Hall & Ors

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

Background

The proposed Enterprise Agreement

Prior to 11 June 2014 negotiations for an enterprise agreement had been occurring for approximately 12 months between head contractor and CFMEU ACT Branch Secretary Dean Hall and CFMEU officials Jason O’Mara and Garry Hamilton.

On 5 June 2014, the general manager sent an email to Mr Hall, Mr O’Mara and Mr Hamilton raising concerns over whether the proposed enterprise agreement was compliant with the proposed Building Code 2014.

Site

The Kim Harvey School of Dance (KHSD project), 11 Rosevear Place, Dickson, ACT, involving the construction of a three storey single building, including an underground carpark. The main access gate to the site is from Hawdon Place, with a secondary gate located on Rosevear Place.

11 June 2014

1.    FWBC alleges that at approximately 6.15am, Mr Hall,  Mr O’Mara and CFMEU officials Halifihi Kivalu, Zachary Smith, Johnny Lomax and Anthony Vitler, along with other unidentified people wearing CFMEU branded clothing, were physically blocking access to the KHSD project through the Hawdon Place gate.

2.    FWBC alleges that four motor vehicles were also placed across the gate, so as to prevent access to the site.

3.    FWBC alleges that at approximately 6.15am, Mr Miller said to the site foreman that the project was closed and that no work would be performed today and that on several occasions between 6.30am and 7am, Mr Kivalu stated to site sub-contractors, both by phone and in person, that the site was closed and no work would be peformed today.

4.    FWBC alleges that some time between 7.15-7.30am, Mr Smith, said to the site foreman and the project engineer “This is an EBA issue.” “It’s been going on for over a year.”

5.    FWBC alleges that at approximately 7.30am, Mr Hall and Mr O’Mara met with the general manager and the senior project manager and that during the course of this meeting, Mr Hall made a number demands to the general manager.

6.    FWBC alleges that Mr Hall said “I have a solution for you,” “You can vary the NSW EBA agreement to include the ACT or sign the existing agreement,” “Vary the Victorian agreement,” “The site needs an attendant labourer with the appropriate skills to identify unsafe work,” “We have a guy that you can take for four weeks,” “He can sort out your safety issues on site”.

7.    FWBC alleges that at the conclusion of the meeting, Mr Hall, Mr O’Mara and the senior project manager returned to the site, where, at approximately 9.30am, the ACT police arrived. FWBC alleges that Mr Hall told the police officers that he was revoking entry to the KHSD project and that the land was CFMEU land.

8.    At approximately 10am, FWBC alleges that Mr Hall made a phone call to the general manager and said “Did you call the police?” “Don’t involve the f**king police,” “Do you want a war?” “I will f**k you over,” and “I know a lot of people in this town and you won’t be working in this town long”.

9.    FWBC alleges that at approximately 12.45pm Mr Miller asked the project engineer “Why is this crane onsite?” to which the project engineer responded that it was clearing access to the Rosevear Place gate. Mr Miller said “That’s bullsh*t, no one is allowed on site today,” and “It’s because the [head contractor] doesn’t have an EBA with the CFMEU. They shouldn’t be in there.”

10.  FWBC alleges that the blockade ended at approximately 4.15pm and a result of this, no scheduled works were carried out on the project on this day.

12 June 2014

11.  FWBC alleges that at approximately 6.30am, Mr Miller, Mr Kivalu, Mr Smith, Mr Lomax, and Mr Vitler, along with other unidentified people wearing CFMEU branded clothing logo, were physically blocking access to the project through the Rosevear Place gate.

12.  FWBC alleges that two motor vehicles were also placed across the gate, so as to prevent access to the project.

13.  At approximately 6.35am, the site foreman approached Mr Miller and asked whether the CFMEU intended to block the site that day. FWBC alleges that Mr Miller responded with “Yes! And why is [head contractor] using this access to site?” to which the site foreman replied that the CFMEU had locked access to the Hawdon Place Gate.

14.  Between 6.30 and 7am, sub-contractors began to arrive at the project and were allegedy told by various CFMEU officials that there “is no work today,” and that “the site is closed”.

15.  At approximately 7.20am, the Director of a nearby childcare centre, approached Mr Miller and Mr Kivalu and asked them to move their motor vehicles as they were on private land. FWBC alleges that Mr Miller responded “we are not moving our cars”.

16.  The director of the childcare centre again asked the two officials to move the cars, as children would soon be arriving at the childcare centre. Mr Kivalu allegedly responded “Yes, we will put the cars back in designated car parks,” to which the director stated “Move your cars off the premises”.

17.  FWBC alleges that none of the CFMEU officials moved the vehicles from in front of the Rosevear Place Gates, or off the premises at all.

18.  At approximately 7.30am, ACT police arrived at the Rosevear Place gate and instructed Mr Kivalu to move himself and the vehicles from the gate, to which Mr Kivalu allegedly responded “No, we are under instructions not to move,” “We’re not going anywhere,” “If you have to arrest me, so be it,” and “Arrest me, Sarge”.

19.  FWBC alleges that the blockade ended at approximately 3.30pm and as a result of this, no scheduled works were carried out on the project on this day.

 

 

13 June 2014

20.  FWBC alleges that at approximately 5.45am, Mr Miller, Mr Kivalu, Mr Smith, Mr Lomax and Mr Vitler, along with other unidentified people wearing CFMEU branded clothing were physically blocking access to the project through the Rosevear Place gate. Mr Hamilton arrived sometime prior to 7am.

21.  At approximately 7am, the site foreman, senior project manager, two FWBC inspectors and a representative of Master Builders Association ACT approached the gate and sought entry to the project, along with sub-contractors who were present for work.

22.  FWBC alleges that Mr Hamilton said “The site is closed,” and Mr Kivalu told the sub-contractors “everyone should go home, you will be paid for today, we will make sure you get paid”.

23.  While the two FWBC inspectors, Master Builders representative, site foreman and senior project manager were permitted to enter the site, FWBC alleges that the CFMEU officials present, physically blocked sub-contractors from accessing the project by standing shoulder to shoulder at the gate.

24.  At approximately 7.30am, FWBC alleges that Mr Miller said to the project engineer “you guys can sort this out pretty easily.” When asked by the project engineer how, Mr Miller responded “sign the EBA!”.

25.  At approximately 8am the senior project manager opened the Rosevear Place gate to which Mr Kivalu allegedly said “You and me are going to have a problem here. The gates stay shut,” and pulled the gate shut.

26.  At approximately 8.50am, FWBC alleges that Mr Hall addressed those people outside the Rosevear Place gate and stated that the head contractor did not want a good relationship with the CFMEU, that the head contractor needed a good relationship with the CFMEU, that it would have been fine if the head contractor had a good relationship with the CFMEU and that he could take out full page ads in the Canberra Times.

27.  FWBC alleges that the blockade ended at approximately 11am and that as a result of this, no scheduled works were carried out on this day.

Contraventions

Maximum penalties

1.    FWBC alleges that the CFMEU and 3 of its officials contravened s.340 of the Fair Work Act when they took adverse action because the head contractor did not sign the proposed enterprise agreement.

2.    FWBC alleges that the CFMEU and 3 of its officials contravened s.343 of the Fair Work Act when they organised or participated in the blockade with the intent to coerce the head contractor to sign the proposed enterprise agreement.

3.    FWBC alleges that the CFMEU and 2 of its officials contravened s.355 of the Fair Work Act when they organised or participated in the blockade with the intent to coerce the head contractor to employ a CFMEU official.

4.    FWBC alleges that CFMEU officials also contravened  s340, s343 and s355 of the Fair Work Act when they aided and abetted each of the above contraventions.

5.    FWBC alleges that theCFMEU by reason of s793 of the Fair Work Act is also taken to have contravened  s340, s343 and s355 of the Fair Work Act by reason of the contraventions of its officials.

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.

PDF icon FWBC alleges the CFMEU, the ACT secretary and 7 officials broke the law 18 times - media backgrounder.pdf