25 July 2012FWBC launches proceedings against Baulderstone for misrepresentation

Director of the Fair Work Building Industry Inspectorate v Baulderstone Pty Limited, Lemin, Razzlog and Kidman

Allegations as outlined in Fair Work Building and Construction’s statement of claim filed in the Federal Magistrates Court of Australia, Sydney, on 29 June 2012. The allegations may change during the course of the proceeding.

1. On or about 22 September 2008, an employee (The Employee) commenced employment with Baulderstone on the Edmund Barton Building project (EBB Project) in Canberra.

2. From 15 January 2009 to 1 February 2009 the Employee was covered by the Baulderstone Building Australian Capital Territory Enterprise Agreement 2009-2011.

3. Between September 2008 and February 2009, the Employee asked the EBB Project site manager if he could be employed by Baulderstone on an annual salary.

4. On 2 February 2009, Baulderstone approved the Employee’s request to transfer to a permanent salaried employment position from 2 February 2009 (the Contract).

5. Under the Contract, the Employee was provided with various entitlements more advantageous than the terms and conditions previously available to him under the 2009 Agreement—including:

  • a fixed annual income to be reviewed each year;
  • automatic life, sickness and accident insurance cover;
  • long service leave; and
  • one month’s notice of termination in writing or payment of one month’s salary in lieu of notice.

6. Between 2 February 2009 and 2 March 2009, the terms and conditions of the employment on the EBB Project were set out in the 2009 Agreement and the Contract.

7. On or about 3 March 2009, Baulderstone and the Employee agreed to vary the Contract to provide for the salary packaging of a motor vehicle.

8. Between 3 March 2009 to 25 March 2010, the terms and conditions of the Employee’s employment by Baulderstone were those set out in the 2009 Agreement and the Contract as varied by the variation.

9. In January 2010, the Employee transferred from the EBB Project to the SA3 Project and continued to be employed by Baulderstone. The Contract and 2009 Agreement continued to apply on the new project.

10. On or about 3 February 2010, a Construction Forestry Mining and Engineering Union (CFMEU) organiser demanded membership payment of $245 from the Employee at the SA3 site, even though the membership dues were already direct-debited from the Employees bank account.

11. On 16 February 2010, the Employee made a cash payment of $250 to the CFMEU organiser.

12. On or about 17 February 2010, the Employee resigned his membership from the CFMEU and, by doing so, engaged in industrial activity.

13. On 22 February 2010, the CFMEU site delegate represented to the Employee that, because he was a construction worker, he had to be a member of the CFMEU under the 2009 Agreement. The delegate also threatened to arrange for the Employee to be dismissed because he had resigned from the CFMEU and was employed on a salary.

14. On 22 February 2010, the Employee notified Baulderstone of the CFMEU delegate’s threat to terminate his employment.

15. On or about 22 February the SA3 Project Manager Mr Gregory Lemin, had a meeting with the EBB Project site manager and CFMEU site delegate regarding the Employee.

16. Mr Lemin advised the EBB Project Manager that the Employee should be a member of the CFMEU to smooth it over and not cause any waves.

17. The CFMEU site delegate queried why the Employee was on a salary.

18. On or about 26 February 2010, the Employee reported to Baulderstone that the CFMEU site delegate had threatened to have his employment terminated because he had resigned from the CFMEU.

19. On 1 March 2010, despite the Employees resignation from the union, the CFMEU organiser demanded a further $250 in union fees during a telephone call to the Employee.

20. On 3 March, the CFMEU organiser again demanded that the Employee pay a further $250 in union fees during a meeting at the SA3 Project site.

21. On or about 15 or 16 March, the CFMEU organiser again demanded that the Employee pay him $250 for union fees during a meeting.

22. On early to mid March 2010 the Employee met with Baulderstone’s NSW / ACT Employee Relations Manager, Mr Raz Razzlog, and NSW / ACT Human Resources Manager, Ms Nicole Kidman.

23. At the meeting, Mr Razzlog and Ms Kidman represented to the Employee that:

  1. He could not continue in his current position on the SA3 Project and be paid salary; and
  2. If he was put on wages he would receive more money.

24. At a time or times between 22 February 2010 and 25 March 2010, Mr Lemin contacted Mr Razzlog and Ms Kidman and conveyed to them his own, and the CFMEU’s, complaints regarding the employee resigning from the CFMEU.

25. At a time between 22 February 2010 and 24 March 2010, Mr Lemin, Mr Razzlog and/or Ms Kidman decided to terminate, or organise to terminate, the Employee’s Contract and re-engage the Employee as a wage earner under the 2009 Agreement on less advantageous terms and conditions.

26. On about 24 March 2010, but prior to the meeting on 25 March 2010, Ms Kidman created a termination record, re-engagement record and resignation letter relating to the Employee’s employment with Baulderstone.

27. On 25 March 2010 Mr Lemin, Mr Razzlog and Ms Kidman met with the Employee at the SA3 Project site. During the meeting they made the following representations to the Employee:

  1. The Employee had to cease employment under the Contract and be re-engaged in the same role on hourly wages under the 2009 Agreement;
  2. He would receive more money when re-engaged solely on wages under the 2009 Agreement; and
  3. That he had to resign his employment under the Contract by signing the resignation letter prepared for him, the termination record and the re-engagement record.

28. In reliance on the representations, the Employee signed the resignation letter, termination record and the re-engagement record. Mr Lemin and Mr Razzlog also signed the termination record and the re-engagement record. The termination record was never approved by the relevant Baulderstone authorising director.

29. As a consequence of the termination of the Contract, and re-engagement of the Employee on wages under the 2009 Agreement:

  1. The Employee did not receive one month’s notice or payment of salary in lieu upon termination of the Contract by Baulderstone;
  2. The Employee was deprived of the additional entitlements which he had received through the Contract;
  3. The Employee was required to work seven days a week and longer hours each week;
  4. The Employee had to work overtime on a regular basis, including excessive hours, in order to attempt to maintain an income similar to that earned by him under the Contract.
  5. The Employee was required to perform more menial tasks and was no longer in a position with as much responsibility;
  6. The Employee was directed not to operate any machinery on the SA4 site, and was given only cleaning duties, and lifting and manual handling duties; and
  7. While on the SA4 site, the Employee was eventually directed not to work any overtime, which reduced his income.
 

Alleged Contraventions

30. FWBC alleges that Baulderstone, Mr Lemin, Mr Razzlog and Ms Kidman contravened section 345 of the Fair Work Act 2009 (FW Act) by making false or misleading representations to the Employee about his workplace right.

31. FWBC alleges that Baulderstone, Mr Lemin, Mr Razzlog and Ms Kidman contravened section 346 of the FW Act by dismissing the Employee, injuring his employment and/or altering his position to his prejudice.

32. Further, or in the alternative, Mr Lemin, Mr Razzlog and Ms Kidman were involved in the contraventions of section 345 and 346 of the FW Act by the other Respondents through their involvement in the contraventions.

FWBC Prosecution

33. FWBC filed a statement of claim in the Federal Magistrates Court of Australia, Sydney, on 29 June 2012.

34. A directions hearing is scheduled for 24 July 2012.

Penalties

35. The maximum penalties for a contravention of the FW Act are $6600 for an individual and $33,000 for an organisation.