03 February 2014FWBC alleges CFMEU and CFMEUW engaged in coercion

 

Backgrounder

Director of the Fair Work Building industry Inspectorate v Construction, Forestry, Mining and Energy Union (CFMEU) and Ors

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

Background

  1. John Holland Pty Ltd (John Holland) is the head contractor responsible for the construction of the New Children’s Hospital, located in Nedlands, Western Australia (the site).
     
  2. Crown Construction Services Pty Ltd (Crown), Stuttgart Assets Pty Ltd trading as Westcoast Formwork (Westcoast), Total Reo Pty Ltd (Total Reo) and National Reinforcing Group Pty Ltd (NRG) were engaged as subcontractors to perform building works on the project and had provided work for pay to respective project employees.
     
  3. The Construction, Forestry, Mining and Energy Union (CFMEU) and Construction, Forestry, Mining and Energy Union of Workers (CFMEUW) are industrial associations whose eligibility rules allow member ship by a person whose employment consists of or includes building work.
     
  4. Joe McDonald (McDonald), Mick Buchan (Buchan), Steve McCann (McCann), Brad Upton (Upton), Patrick Heathcote (Heathcote) and Tawa Harris (Harris) each acted for and on behalf of the CFMEU and CFMEUW.

25 January 2013 – 5.30 am to 6.20 am

  1. From approximately 5.30 am on 25 January 2013, McDonald, Buchan, McCann, Upton, Heathcote and Harris attended the Hospital Avenue entrance to the site.
     
  2. Between 5.30 am and 6.20 am, McDonald, Upton and Harris stood together at the Hospital Avenue entrance to the site with a posture and demeanour, and in attire, calculated to deter project employees from entering.
     
  3. McDonald, Upton and Harris stood in a way that one or more of them was blocking the entrance to the site so that, unless one or more of them stood aside, no project employee could enter without making physical contact.
     
  4. It is alleged that McDonald said to some project employees, or within hearing of some employees, words to the effect: “Nobody is going into site. There is a safety meeting across the road,” and to others, “Site is shut.”

25 Janury 2013 – 6.20 am to 11.00 am

  1. At approximately 6.20 am on 25 January 2013, a meeting was conducted near the site which was attended by McDonald, Buchan, McCann, Heathcote and a number of project employees.
     
  2. At approximately 6.55 am Buchan, McCann and Heathcote left the meeting and requested a meeting with John Holland representatives.
     
  3. The Construction Director responded with words to the effect: “In order for the meeting to be effective, we need to have the right people in attendance. We should agree upon a time to have the meeting.”
     
  4. At approximately 7.00 am, Buchan raised the Construction Director’s response to the request with those at the union meeting.
     
  5. At approximately 7.05 am, McDonald addressed the project employees at the union meeting with words to the effect: “What about it boys, we don’t come back until next Wednesday? All those in favour, raise your hands.”
     
  6. A majority of the project employees attending the union meeting voted in favour of McDonald’s motion.
     
  7. From approximately 7.10 am to 8.15 am, McDonald, Harris and Heathcote stood at the Hospital Avenue Entrance to the site with a posture and demeanour, and in attire, calculated to deter project employees from entering.
     
  8. Harris stood blocking the entrance to the site so that, unless he stood aside, no project employee could enter without making physical contact.
     
  9. It is alleged that McDonald said to some project employees who approached the site, or within hearing of some employees, words to the effect: “The site is closed today.”

30 January 2013

  1. At approximately 4.15 am on 30 January 2013 McDonald, McCann, Buchan and Harris attended the Hospital Avenue entrance to the site.
     
  2. From approximately 6.00 am to 6.20 am, McDonald, McCann, Buchan and Harris stood at the Hospital Avenue Entrance to the site with a posture and demeanour, and in attire, calculated to deter project employees from entering.
     
  3. They stood blocking the entrance to the site so that, unless one or more of them stood aside, no project employee could enter without making physical contact.
     
  4. Harris attempted to physically prevent a project employee from entering the site to commence work.

Contraventions

  1. FWBC alleges that Upton and Harris breached s 343 of the Fair Work Act 2009 (FW Act) on 25 January 2013. Upton and Harris stood in front of the entrance to the site with a posture and demeanour, and in attire, calculated to deter project employees from entering for work. FWBC alleges that Upton and Harris intended to coerce employees not to exercise their workplace right to enter the site to work for pay.
     
  2. FWBC alleges that Upton and Harris breached s 340 of the FW Act on 25 January 2013. Upton and Harris stood in front of the entrance to the site with a posture and demeanour, and in attire, calculated to deter project employees from entering for work. FWBC alleges that Upton and Harris took adverse action to prevent employers from exercising their workplace rights to allow access to the site and provide work for pay to their respective project employees and to participate in the relevant safety dispute settlement procedure.
     
  3. FWBC alleges that McDonald breached s 343 of the FW Act on 25 January 2013. McDonald stood in front of the entrance to the site with a posture and demeanour, and in attire, calculated to deter project employees from entering for work and said words to the effect: “Nobody is going into site. There is a safety meeting across the road,” and, “Site is shut.” FWBC alleges that McDonald intended to coerce employees not to exercise their workplace right to enter the site to work for pay.
     
  4. FWBC alleges that McDonald breached s 340 of the FW Act on 25 January 2013. McDonald stood in front of the entrance to the site with a posture and demeanour, and in attire, calculated to deter project employees from entering for work and said words to the effect: “Nobody is going into site. There is a safety meeting across the road,” and, “Site is shut.” FWBC alleges that McDonald took adverse action to prevent employers from exercising their workplace rights to allow access to the site and provide work for pay to their respective project employees and to participate in the relevant safety dispute settlement procedure.
     
  5. FWBC alleges that Harris and Heathcote breached s 343 of the FW Act when they returned to the Hospital Avenue site entrance following the union meeting on 25 January 2013. Harris and Heathcote stood in front of the entrance to the site with a posture and demeanour, and in attire, calculated to deter project employees from entering for work. FWBC alleges that Harris and Heathcote intended to coerce employees not to exercise their workplace right to enter the site to work for pay.
     
  6. FWBC alleges that Harris and Heathcote breached s 340 of the FW Act when they returned to the Hospital Avenue site entrance following the union meeting on 25 January 2013. Harris and Heathcote stood in front of the entrance to the site with a posture and demeanour, and in attire, calculated to deter project employees from entering for work. FWBC alleges that Harris and Heathcote took adverse action to prevent employers from exercising their workplace right to allow access to the site and provide work for pay to their respective project employees.
     
  7. FWBC alleges that Harris and Heathcote breached s 348 of the FW Act when they returned to the Hospital Avenue site entrance following the union meeting on 25 January 2013. Harris and Heathcote stood in front of the entrance to the site with a posture and demeanour, and in attire, calculated to deter project employees from entering for work. FWBC alleges that Harris and Heathcote took action against John Holland, intending to coerce project employees to engage in industrial activity and not attend work.
     
  8. FWBC alleges that McDonald further breached s 343 of the FW Act when he returned to the Hospital Avenue site entrance following the union meeting on 25 January 2013. McDonald stood in front of the entrance to the site with a posture and demeanour, and in attire, calculated to deter project employees from entering for work and said words to the effect: “The site is closed today.” FWBC alleges that McDonald intended to coerce employees not to exercise their workplace right to enter the site to work for pay.
     
  9. FWBC alleges that McDonald further breached s 340 of the FW Act when he returned to the Hospital Avenue site entrance following the union meeting on 25 January 2013. McDonald stood in front of the entrance to the site with a posture and demeanour, and in attire, calculated to deter project employees from entering for work and said words to the effect: “The site is closed today.” FWBC alleges that McDonald took adverse action to prevent employers from exercising their workplace right to allow access to the site and provide work for pay to their respective project employees.
     
  10. FWBC alleges that McDonald breached s 348 of the FW Act when he returned to the Hospital Avenue site entrance following the union meeting on 25 January 2013. McDonald stood in front of the entrance to the site with a posture and demeanour, and in attire, calculated to deter project employees from entering for work and said words to the effect: “The site is closed today.” FWBC alleges that McDonald took action against John Holland with the intent to coerce it to comply with the union meeting request. Alternatively, McDonald took action with the intent to coerce project employees to engage in industrial activity and not attend for work.
     
  11. FWBC alleges that Harris breached s 343 of the FW Act on 30 January 2013. Harris stood in front of the entrance to the site with a posture and demeanour, and in attire, calculated to deter project employees from entering for work. FWBC alleges that Harris intended to coerce employees not to exercise their workplace right to enter the site to work for pay.
     
  12. FWBC alleges that Harris breached s 340 of the FW Act on 30 January 2013. Harris stood in front of the entrance to the site with a posture and demeanour, and in attire, calculated to deter project employees from entering for work. FWBC alleges that Harris took adverse action to prevent employers from exercising their workplace right to allow access to the site and provide work for pay to their respective project employees.
     
  13. FWBC alleges that Harris breached s 348 of the FW Act on 30 January 2013. Harris stood in front of the entrance to the site with a posture and demeanour, and in attire, calculated to deter project employees from entering for work. FWBC alleges that Harris took action against John Holland, intending to coerce project employees to engage in industrial activity and not attend work.
     
  14. FWBC alleges that Harris further breached s 343 of the FW Act on 30 January 2013. Harris attempted to physically prevent a project employee from entering the site. FWBC alleges that Harris intended to coerce the employee not to exercise their workplace right to enter the site to work for pay.
     
  15. FWBC alleges that the CFMEU and CFMEUW are liable for the actions of their officials.

Civil Litigation Proceedings

  1. FWBC filed proceedings in the Federal Court of Australia, Perth on 29 January 2014.
     
  2. A directions hearing is scheduled for 20 February 2014.

Maximum penalties

  1. The maximum applicable penalty for each contravention of the FW Act in this matter is $10,200 for an individual and $51,000 for a body corporate.

 

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