14 September 2012FWBC alleges strikes and blockades on five major Victorian projects

Director of the Fair Work Building Industry Inspectorate v CFMEU, Berardi, Beattie, Theodorou, Pitt, Bell & Patching

Background

Allegations as outlined in Fair Work Building & Construction’s (FWBC) statement of claim filed in the Federal Court, Victoria, on 30 July 2012. The allegations may change during the course of the proceeding.

The St Hilliers sites

1. Construction contractor St Hilliers was party to a joint venture with Australand to undertake Stage Two of the construction of apartments and social housing apartments at 473 Keppel St in Carlton, Victoria (the Carlton site). The project was valued at $38.8m.

2. St Hilliers was the head contractor on the Ashwood Chadstone Gateway Project which involved the building of 239 apartments across four residential towers at the corner of Power Avenue and Elliot St in Ashwood, Victoria (the Ashwood site). The project was valued at $58m.

3. St Hilliers was the head contractor on the Canterbury Project at 2-4 Gasgoyne St,
Canterbury, Victoria. The project involved the construction of six buildings, 22 townhouses, six maisonettes and an apartment block. The project was valued at $33m.

4. St Hilliers was the head contractor on the Simpsons Barracks – Watsonia Enhanced Land Force Stage Two at the Watsonia Military Camp. The project involved the construction of a two storey technical wing and the refurbishment of an existing covered training area and supporting infrastructure (the Watsonia site). The project was valued at $32m.

5. St Hilliers Ararat was party to a joint venture with Hawkins Ararat Pty Ltd to redevelop and extend the Ararat prison, with a project value of $204m (the Ararat site).

The Whitney sacking

6. St Hilliers had employed Warren Whitney in NSW since 1993. He had been the Chairman of the St Hilliers Consultative Committee and Safety Committee, a CFMEU delegate and Workplace Safety Representative for St Hilliers and a member of the Committee of Management of the CFMEU’s NSW branch.

7. On 25 August 2011, St Hilliers made five employees redundant, including Mr Whitney.

8. The CFMEU took various steps to have Mr Whitney reinstated including filing an unfair dismissal claim with Fair Work Australia on behalf of Mr Whitney on 2 September 2011.

9. On 2 September 2011, the CFMEU orchestrated a picket outside St Hilliers’ NSW sites to support its claim for Mr Whitney to be reinstated.

10. On 7 September 2011, the CFMEU’s NSW branch issued a website flyer titled ‘Union delegate sacked’ to encourage CFMEU members to participate in a campaign to have Mr Whitney reinstated.

11. The CFMEU’s NSW branch featured a website flyer dated 13 October 2011 and titled
‘Stand by our man’ in reference to Mr Whitney.

12. St Hilliers refused to reinstate Mr Whitney.

2 September blockade – Ashwood site

13. On 2 September 2011, a subcontractor that St Hilliers had engaged was scheduled to set up a mobile crane at the Ashwood site to dismantle a crane tower.

14. At 11am CFMEU delegate and St Hilliers employee Adam Patching locked the site entry to prevent the mobile crane from accessing the site.

15. Mr Patching told St Hilliers’ site manager that the crane was not coming down on
instruction from the CFMEU. He said the issue related to the Whitney sacking and the site manager should speak to CFMEU organiser Danny Berardi.

16. About 30 minutes to an hour later, Mr Berardi and CFMEU organiser Bill Beattie arrived at the Ashwood site and parked two CFMEU vehicles across the entry gate.

17. About 20 people employed by a different head contractor on a nearby site also attended and stood outside the entry gate.

18. Mr Berardi told St Hilliers’ operations manager that St Hilliers was not taking its crane down. He handed his phone to the operations manager and asked him to speak with the CFMEU’s Victorian Assistant Secretary John Setka.

19. Mr Setka told the operations manager that the blockade was due to the Whitney sacking.The operations manager responded that there was no work in NSW and St Hilliers could not carry people forever.

20. A meeting then took place between St Hilliers staff and the CFMEU representatives at the site. Mr Berardi said the crane was not coming down and St Hilliers knew how to resolve the issue.

2 September blockade – Ararat site

21. On 2 September 2011, a subcontractor that St Hilliers had engaged was scheduled to operate a 200 tonne crane at the Ararat site to lift condensers for the air conditioning units.

22. CFMEU organiser Brendan Pitt directed the crew not to operate the crane. Mr Pitt told St Hilliers’ construction manager that he gave the direction because of the Whitney sacking, and that using the crane would be able to occur when St Hilliers came to the negotiating table (referring to St Hilliers being prepared to negotiate on the Whitney sacking).

13 September negotiations

23. On 13 September 2011, St Hilliers’ operations manager telephoned the CFMEU’s Victorian Vice President Shaun Reardon and Mr Reardon handed his phone to another Vice President, Elias Spernovasilis. Mr Spernovasilis referred to the Whitney sacking. Mr
Spernovasilis said St Hilliers knew what it had to do to resolve the issue.

24. On 13 September 2011, St Hilliers’ operations manager telephoned the CFMEU’s National Assistant Secretary Frank O’Grady and asked when the bans would be lifted. Mr O’Grady replied the bans would not be lifted until St Hilliers “put this guy on”, in reference to Mr Whitney, and “take them all back”, in reference to the five workers who were made redundant. Mr O’Grady also referenced the fact that St Hilliers was not sitting down with the CFMEU.

14 September strike – Canterbury site

25. At 8.15am on 14 September 2011, a St Hilliers employee who was also a CFMEU delegate directed the employees and subcontractors to attend a meeting outside the front gates of the Canterbury site.

26. At 8.50am Mr Berardi arrived and conducted a meeting with the employees and
subcontractors, during which Mr Berardi said that work was to stop and everyone was to go home in protest of what had happened in Sydney (referring to the Whitney sacking).

27. Mr Berardi told the site manager that he had ordered the strike as a result of the Whitney dispute and the action could go on for days, months, or years, or end up in court.

14 September strike – Watsonia site

28. At 9.10am on 14 September 2011, Mr Beattie attended the Watsonia site and convened a meeting of employees and subcontractors in the lunch room shortly afterwards.

29. During the meeting Mr Beattie said the issue started in Sydney (referring to the Whitney sacking) and that St Hilliers was having industrial problems on other sites. Mr Beattie said the workers would withdraw their labour and he would be back the next day if the issue was not resolved.

30. Shortly after the meeting, Mr Beattie spoke to the site manager and project manager,
indicating among other things that CFMEU members had voted to go home for the day, the reason was because of problems in NSW (referring to the Whitney sacking), and the site manager need to tell management that unless the NSW problem was solved, there might be prolonged closures.

14 September strike – Ararat site

31. At 9.45am on 14 September 2011, CFMEU organiser Jason Bell conducted a meeting of employees and subcontractors in the car park of the Ararat site where Mr Bell said that St Hilliers had sacked a delegate (referring to Whitney) as part of the sackings in Sydney. Mr Bell said he was there to get support. He asked the site to do the same as other St Hilliers sites, and the workers should go home and return tomorrow for a meeting at 6.45 am.

14 September strike – Carlton site

32. CFMEU organiser Theo Theodorou entered the Carlton site at 8am on 14 September 2011 and told the senior project manager that he had been directed to send everyone home.

33. Shortly after 8am, Mr Theodorou convened a meeting of employees and subcontractors in lunch room during which the Whitney dispute was discussed and Mr Theodorou directed those present to go on strike for the rest of the day.

14 September strike – Ashwood strike

34. At 8.30am on 14 September 2011, Mr Patching convened a meeting of employees and subcontractors outside building two of the Ashwood site.

35. During the meeting Mr Patching conveyed to attendees that St Hilliers was not reinstating one of the CFMEU’s members in Sydney (referring to Whitney) and Mr Patching directed those present to go on strike for the remainder of the day.

Mr Whitney’s reinstatement

36. On the evening of 14 September 2011, St Hillier’s reinstated Mr Whitney.

Alleged Contraventions

37. FWBC alleges that Mr Patching, Mr Berardi, Mr Beattie and the CFMEU contravened s38 of Building and Construction Industry Improvement Act 2005 (BCII Act) by blockading the Ashwood site on 2 September 2011.

38. FWBC alleges that on 2 September 2011, Mr Patching, Mr Berardi, Mr Beattie and the
CFMEU contravened s43 of the BCII Act by attempting to coerce St Hilliers to reinstate Mr
Whitney.

Alleged contraventions

39. FWBC alleges that Mr Pitt and the CFMEU contravened s38 of the BCII Act by issuing a work ban on the Ararat site on 2 September 2011.

40. FWBC alleges that on 14 September 2011, Mr Berardi and the CFMEU contravened s38 of the BCII Act by directing workers at the Canterbury site to go on strike.

41. FWBC alleges that on 14 September 2011 Mr Beattie and the CFMEU contravened s38 of the BCII Act by directing workers at the Watsonia site to go on strike.

42. FWBC alleges that on 14 September 2011 Mr Bell and the CFMEU contravened s38 of the BCII Act by directing workers at the Ararat site to go on strike.

43. FWBC alleges that on 14 September 2011 Mr Theodorou and the CFMEU contravened s38 of the BCII Act by directing workers at the Carlton site to go on strike.

44. FWBC alleges that on 14 September 2011 Mr Patching and the CFMEU contravened s38 of the BCII Act by directing workers at the Ashwood site to go on strike.

45. FWBC alleges that on 14 September 2011 Mr Berardi, Mr Beattie, Mr Bell, Mr Theodorou and Mr Patching contravened s43 of the BCII Act by attempting to coerce St Hilliers to reinstate Mr Whitney.

46. FWBC alleges that the CFMEU was complicit in each of these alleged contraventions.

FWBC Prosecution

47. FWBC filed a statement of claim in the Federal Court at Melbourne on 4 September 2012.

48. A directions hearing is scheduled for 26 September 2012 at 10.15am.

Penalties

49. The maximum penalties for a contravention of the BCII Act are $22,000 for an individual and $110,000 for an organisation.