20 September 2013FWBC alleges company took adverse action following complaint to union

Backgrounder

Director of Fair Work Building Industry Inspectorate v Luka Tippers and Excavation Pty Ltd & Nikola Maric

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

Background

  1. Luka Tippers & Excavation Pty Ltd (Luka Tippers) was engaged to perform earthmoving works on the $75m Essence Apartments project on Park Street in South Melbourne.
     
  2. On or about 22 May 2012, Luka Tippers advertised positions for a driver, diesel mechanic and excavator operator on employment website www.seek.com.au.
     
  3. An excavator operator telephoned Luka Tippers’ director, Nikola Maric, on 22 May 2012 regarding a job. On 27 May 2012, the excavator operator attended Luka Tippers’ office in Hoppers Crossing to discuss the job.
     
  4. At around 8am on 29 May 2012, Mr Maric telephoned the excavator operator and offered to employ him. The operator accepted the position.
     
  5. The excavator operator worked for Luka Tippers from 9am on 29 May 2012 until 2pm on 2 June 2012. He was not paid for this work until 28 August 2013, after FWBC pursued the underpayment with Mr Maric.
     
  6. The Luka Tippers & Excavation Pty Ltd and the CFMEU Civil Construction Industry Enterprise Agreement 2011-2015 applied to and covered the excavator operator’s employment.
     
  7. The excavator operator was employed and performed work as a full-time weekly hire mechanical plant operator PCW3 under the agreement. Alternatively, he was employed as an excavator operator CW4 under the Building and Construction General On-site Award 2010.
     
  8. At around 5pm on 1 June 2012, Mr Maric allegedly threatened to terminate the excavator operator’s employment because he had allegedly scratched a capping beam and told him that he would not pay him for the work he had undertaken unless he agreed that the cost of repairing the capping beam would be taken out of his pay, which the excavator operator agreed to.
     
  9. On or about 2 June 2012, the excavator operator complained to the CFMEU shop steward and sought representation from the CFMEU in relation to recovering his full pay for the work he had undertaken.
     
  10. The shop steward raised the matter with Mr Maric.
     
  11. On or about 3 June 2012, Mr Maric telephoned the excavator operator and allegedly said words to the effect of:
  • Who do you think you are running your mouth off to the union?”
     
  • “You’re not going to get your money at all now” and
     
  • “Let’s see if you and the unions can get your money out of me”.
     
  1. Mr Maric did not offer the excavator operator any further work.
     
  2. FWBC calculated that Luka Tippers owed the excavator operator $2433.40 in unpaid wages and entitlements. Luka Tippers paid him on 28 August 2013.

Contraventions

  1. FWBC alleges that Luka Tippers and Excavation Pty Ltd and Nikola Maric contravened s340 and s346 of the Fair Work Act 2009 (FW Act) by taking adverse action against the excavator operator because he exercised his workplace right to complain to the union.
     
  2. FWBC alleges that Luka Tippers and Mr Maric contravened s44 of the FW Act by failing to give the excavator operator a copy of the Fair Work Information Statement when he commenced working for them, as required under the National Employment Standards.
     
  3. FWBC alleges that Luka Tippers and Mr Maric contravened s50 of the FW Act by breaching the terms of the enterprise agreement.
     
  4. In the alternative to breaching the enterprise agreement, FWBC alleges that Luka Tippers and Mr Maric contravened s45 of the FW Act by contravening the terms of the modern award.

Civil Litigation Proceedings

  1. FWBC filed proceedings in the Federal Circuit Court at Melbourne on 16 September 2013.
     
  2. A directions hearing is scheduled for 24 October 2013.

 

Maximum penalties

  1. The maximum applicable penalty for a contravention of the FW Act in this matter is $6,600 for an individual and $33,000 for a body corporate.
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