05 February 2014FWBC alleges CFMEU threatened action to coerce payment for membership
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.
- Reday Pty Ltd (Reday) was the builder and developer on the Central Apartments project site in Darwin, Northern Territory.
- Reday employed workers to perform construction work on the site.
- The Construction, Forestry, Mining and Energy Union (CFMEU) is an industrial association whose eligibility rules allow membership by a person whose employment consists of or includes building work.
- Kane Pearson (Pearson) and Adam Olsen (Olsen) each acted for and on behalf of the CFMEU.
First right of entry notice
- On 15 June 2013, the CFMEU sent an email to Reday, which included 19 right of entry notices for 19 CFMEU officials, seeking entry during the week commencing 17 June 2013 for discussions with employees.
CFMEU walk through
- On 17 June 2013, five CFMEU officials, including Pearson, attended the site.
- The Site Manager requested the union officials return at a later time with words to the effect: “Look guys, this is not really a good time, can you come back later on, just let me finish what I’m doing now.”
- In response to this request, Pearson spoke to the Project Manager and allegedly said words to the effect: “We don’t really have to tell you when we’re coming onto the site, you know we’re here now and we can just come onto the site if we want to.”
- Pearson then spoke to a Project Manager of Reday and allegedly said words to the effect: Reday is in breach of “Health and safety,” and “You’re going to walk with me through the site or I’m going to walk through on my own.”
- During the walk through, Pearson and other CFMEU officials allegedly told workers they saw to stop work.
- Pearson allegedly told the Project Manager words to the effect: “This is dangerous,” and “as you don’t have a designated plan for a crane driver to know where to unload the cage, it’s unsafe, and I must stop the concrete pour,” and “You’re not pouring this, this is dangerous.”
- Pearson also allegedly said words to the effect: “there is to be no work on the site as it’s unsafe”.
- The Project Manager told Pearson that Reday would work on an evacuation plan overnight and that Pearson could return the next day to have a look at it.
- Pearson allegedly told the Site Manager that he would return at 7.00 am the next day and that no one was allowed on site until an evacuation drill was completed.
- Pearson and the other CFMEU officials left the site.
The evacuation drill
- On 18 June 2013, three CFMEU officials attended the site without Pearson.
- At 8.15 am, Reday conducted an evacuation drill at the site in the presence of three CFMEU officials.
- The officials did not make any comments to the Project Manager or Site Manager about the evacuation drill and they did not ask about any details of the evacuation drill.
- After the evacuation drill, the three CFMEU officials conducted a meeting at the entrance to the site with the Reday employees. In this meeting, union officials attempted to persuade the Reday employees to become members of the CFMEU. No employees joined at the meeting.
- Pearson entered the site after this meeting had taken place.
- Pearson spoke with the Project Manager about talking to workers about joining the union allegedly saying words to the effect: “Why don’t you talk to the workers about joining the union?” Pearson allegedly spoke to the Project Manager about Reday paying union fees for workers and then get the money back over time.
- The Project Manager responded with words to the effect: “The union’s conduct does not help in getting people to join the union and that while I’ll talk to the guys about joining the union, I can’t make any promises.”
- On 19 June 2013, Pearson attended the site and met with the Project Manager.
- Pearson allegedly asked about workers joining the union with words to the effect: “Why don’t you get these guys to become members of the union?”
- The Project Manager stated that he had spoken to workers but that there was no interest in joining the union.
- Pearson allegedly insisted that the Project Manager would need to get workers to join the union. Saying words to the effect: “I’m telling you, you’ve got to get these people to become members of the union if you want to have a good relationship with the union.”
- The Project Manager again stated that he would speak to workers but could make no guarantees.
- Pearson allegedly said words to the effect: “There’ll be more union officials coming into Darwin and I expect you to have a cheque payable to the CFMEU, not cash, for union fees for me on Friday morning.”
- The Project Manager replied: “This is extortion.”
- Pearson allegedly responded with words to the effect: “No it isn’t … If you want to have a good relationship with the union, I expect a cheque on Friday and you can take it off the workers’ pay as they earn.”
The phone call
- On 20 June 2013, Pearson telephoned the Project Manager to follow up on talking to workers about joining the union. The Project Manager advised that no workers were interested.
Second right of entry notices
- On 21 June and 22 June 2013, the CFMEU sent emails to Reday, which included four right of entry notices seeking to enter the site during the week commencing 24 June 2013. Olsen was one of the officials giving notice.
- On 26 June 2013, Olsen and two other CFMEU officials attended the site. The two other officials conducted a meeting with Reday employees in the lunchroom.
- Olsen stood outside the lunchroom with the Site Manager and Project Manager. After the meeting Olsen asked the other officials if anyone had signed up to the union. They indicated that there was no interest from workers.
- Olsen then allegedly insisted that the Project Manager should pay the fees with words to the effect: “Best thing for you guys is to pay for the guys’ fees because they can’t afford to pay.” and “You can deduct slowly over time.” and “If you pay and we know this is a union site, we’ll leave you alone.”
- Further, Olsen allegedly said words to the effect: “If you had six or eight or ten members on site that were part of the union, if you had that number of memberships, then the next time we come up, and we will be coming up more often, we will overlook, we will not just come here once we know it’s a union site, that’s when we will focus on other jobs around town.”
- Olsen allegedly told the Project Manager and Site Manager that the site would be targeted for further action (Olsen’s Threat) if it didn’t pay fees for workers to the union with words to the effect: “You know, don’t go down the path that Sunbuild are taking at the moment because we will be hammering them.” and “They’re in the target zone.”
- The Project Manager asserted that he didn’t believe that the CFMEU representatives including Olsen and Pearson had authority to conduct health and safety inspections in Darwin.
- Olsen allegedly said words to the effect: “Yes, that’s all going to change now, we’re all getting the proper relevant paperwork.”
- FWBC alleges that the CFMEU and Olsen breached s 348 of the FW Act. FWBC alleges that Olsen’s threat to target and disrupt the site if Reday did not pay union fees for its employees was intended to coerce Reday to pay those fees.
- FWBC also alleges that the Pearson and Olsen breached s 500 of the FW Act. Olsen and Pearson’s disruptive actions, including the exercise of health and safety inspection rights where he was not authorised and requesting Reday to pay membership fees to the CFMEU, amounted to acting in an improper manner whilst exercising right of entry to a site.
- FWBC alleges that the CFMEU is liable for the actions of its officials.
Civil Litigation Proceedings
- FWBC filed proceedings in the Federal Court of Australia, Northern Territory on 17 December 2013.
- A directions hearing is scheduled for 7 March 2014.
- 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.