09 January 2013FWBC launches proceedings against CFMEU and Division Secretary

Backgrounder

Fair Work Building and Construction (FWBC) has commenced proceedings against the CFMEU alleging that its Secretary, Mr Mick Buchan, threatened a company because it had arranged for FWBC to deliver a presentation on workplace rights.

This backgrounder details allegations contained in the Statement of Claim filed in the matter, The Director of the Fair Work Building Industry Inspectorate v CFMEU & Buchan.

Background

Prior industrial action

  1. Polyseal Waterproofing (WA) Pty Ltd (Polyseal) was contracted by Brookfield Multiplex FSH Contractor Pty Ltd to perform building works on the Fiona Stanley Hospital Project in Perth, Western Australia.
  2. Polyseal workers were covered by an enterprise agreement that expired on 31 October 2011. Polyseal and the CFMEU were negotiating the terms of a new enterprise agreement covering work performed by Polyseal employees.
  3. At approximately 6:20 am on 8 February 2012, CFMEU Assistant Secretary Mr. Joseph McDonald held talks with Polyseal employees.  Following these meetings, workers left the site and did not perform work for the rest of the day.
  4. Mr McDonald held further talks with workers at approximately 6:45 am on 25 May 2012.  Workers again left the site and did not perform any work for the remainder of the day.

FWBC Presentation

  1. Polyseal subsequently organised for FWBC to deliver a presentation to workers on their workplace rights and responsibilities.
  2. On 18 June 2012 Polyseal sent a memorandum to employees directing them to attend the presentation, to be held on 19 June 2012.
  3. On 19 June 2012, Mr Buchan had a telephone conversation with a Polyseal representative to discuss the presentation.
  4. During the conversation:
  1. Mr Buchan said that he had heard Polyseal arranged a meeting with FWBC, that this was not acceptable, and that he [Mr Buchan] would not allow ‘his people’ to attend that meeting;
  2. Mr Buchan said that organising the meeting with FWBC was provocative;
  3. Mr Buchan said that ‘if the meeting went ahead, it would have serious repercussions on the Fiona Stanley project’; and
  4. Mr Buchan said that there would be ‘serious repercussions’ if the meeting went ahead.
  1. As a result of Mr Buchan’s threats, Polyseal cancelled the FWBC presentation.

Contraventions

  1. FWBC alleges that in making those threats, the CFMEU, and in turn Mr Buchan, sought to coerce Polyseal to not exercise its workplace right of seeking FWBC assistance in contravention of sections 340 and 343 of the Fair Work Act 2009 (FW Act).

Civil Litigation Proceedings

  1. FWBC filed proceedings in the Federal Court at Perth on 19 December 2012.
  2. A directions hearing is scheduled for 20 February 2013.

Penalties

  1. The maximum applicable penalty for a contravention of the FW Act 2009 is $6,600 for an individual and $33,000 for an organisation.
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