14 June 2012FWBC launches proceedings against unions and officials for coercion and unprotected industrial action

Director, Fair Work Building Industry Inspectorate v O’Doherty, Myles, Ong, Clark, Bland, Temoho, Jarvis, CFMEU & CEPU

Background

Allegations as outlined in Fair Work Building and Construction’s statement of claim filed in the Federal Court, Brisbane, on 16 May 2012. The allegations may change during the course of the proceeding.

1. In 2010, Watpac Construction (Queensland) Pty Ltd (Watpac) was engaged as the managing contractor on three Queensland construction sites including:

  • The Translation Research Institute Project at Annerley;
  • the Queensland Institute of Medical Research Centre Project at the Royal Brisbane Hospital; and
  • the Carrara Stadium Refurbishment and Extension Project at Carrara.

2. All employees of Watpac undertaking construction work in Queensland were covered by the Watpac Construction Queensland Pty Ltd Enterprise Agreement 2009.

3. As at 9 November 2010, Watpac did not have an agreement with the CFMEU or any other union in respect of any of its Queensland projects.

Translation Research Institute Project (TRI Project)

4. On 9 November 2010, Watpac employed employees to perform construction work on the TRI Project.

5. At approximately 6.00 am, CFMEU organisers Mr Patrick O’Doherty and Mr Joseph Myles entered the TRI Project site and spoke to some of the Watpac employees.

6. Shortly afterwards, some of the Watpac employees left the TRI Project site. The employees who remained, did not commence work that day.

7. A Watpac project manager at the site asked what had happened. Mr O’Doherty replied to the effect of: “We have put a vote to the workforce that Watpac doesn’t have a union ratified EBA in Queensland. This is part of a national campaign.”

8. Mr Myles said words to the effect of: “This is a national campaign to get Watpac to change to a union EBA. Queensland doesn’t have one, other States do have the union EBA.

9. Mr Myles added words to the effect of: “I have been told by my bosses to come to site and discuss the EBA with the workforce and not involve you (the project manager).”

10. The action was taken with intent to coerce—or apply undue pressure to—Watpac to agree to accept a building enterprise agreement with the CFMEU.

11. The action adversely affected Watpac in that scheduled work could not be performed on the TRI Project.

The Queensland Institute of Medical Research Centre Project (QIMR Project)

12. At approximately 5:45 am on 9 November 2010, CEPU organiser Mr Peter Ong, and CFMEU organisers Mr Andrew Clark and Mr Edward Bland entered the QIMR Project Site.

13. Mr Ong said, to the Watpac site manager, words to the effect of: “We are having a talk to the boys about Watpac and its [sic] national.”

14. Mr Ong, Mr Clark and Mr Bland subsequently addressed a meeting attended by some of the employees of Watpac, and other employees on the site.

15. During the meeting, Mr Ong said words to the effect of: “The reason for the meeting was that we have had enough of Watpac using inferior subbies. Victoria and New South Wales are compliant but Queensland are rogues and need harnessing in”.

16. Mr Ong further stated words to the effect that: “We have had enough, it is time to stand up and take action to the likes of Watpac, they are one of the main offenders. By using non EBA subcontractors they are pushing everyone’s wages down.”

17. Mr Ong and Mr Clark subsequently said words to the effect of: “We motion that we take the day off and go home to our families and take a stand against Watpac.”

18. The majority of the site’s employees present put up their hands, and then seconded the motion.

19. Following the meeting some of the assembled employees of Watpac, and other employees on the site, started to pack up their possessions and left the QIMR Project Site. Those who left did not return to the site on 9 November 2010.

20. The actions of Mr Ong, Mr Clark and Mr Bland were taken with intent to coerce, or apply undue pressure to, Watpac to cease to engage contractors that did not have an enterprise agreement with a union and to engage contractors that did.

21. The action adversely affected Watpac in that scheduled work could not be performed on the QIMR Project.

22. On 10 November 2010 Mr Ong, Mr Clark and Mr Bland again entered the QIMR Project site.

23. At approximately 6.00 am the three men attended a meeting with employees on the site.

24. Mr Ong or Mr Clark said words to the effect that he was happy with the efforts of Tuesday 9 November, and that the unions were having a meeting with the Federal Manager and State Manager of Watpac to see if they can “rein them in”.

25. Mr Ong said words to the effect of: “I propose a motion that if the meeting doesn’t go well Monday, we take action Tuesday.”

26. Mr Clark said words to the effect of: “We are putting our arse on the line by doing it this way”.

27. The actions proposed by Mr Ong and Mr Clark constituted a threat to take further industrial action with the intent to coerce Watpac to stop engaging contractors that did not have enterprise agreements with a union, and to engage workers that did.

Carrara Stadium Project Site

28. Shortly after 6.00 am on 9 November 2010, CFMEU organisers Mr Andrew Temoho and Mr Timothy Jarvis entered the Carrara Stadium Project site.

29. At approximately 6.20 am the two men attended a meeting of employees at the site and stated words to the effect that Watpac wanted to use “grubby subbies” and would not continue using present subcontractors on the Project as they were contractors that had union EBAs.

30. Mr Temoho and Mr Jarvis put a motion to the employees present to the effect that the workers leave the site.

31. At approximately 7.15 am, workers began to leave the site and did not return to work as scheduled on 9 November 2010.

32. Mr Jarvis said, to the Watpac Project Manager on site, words to the effect that the action was against Watpac generally and that jobs had been hit in other States and it was a “national thing”.

Alleged Contraventions

33. FWBC alleges that on 9 November 2010, Mr Patrick O’Doherty, Mr Joseph Myles and the CFMEU contravened:

  • Section 44 of the Building and Construction Industry Improvement Act 2005 (BCII Act) by taking action with intent to coerce, or apply undue pressure to, Watpac to agree to accept a building enterprise agreement with the CFMEU;
  • Section 38 of the BCII Act by engaging in unlawful industrial action at the TRI Site; and
  • Section 417 of the Fair Work Act 2009 (FW Act) by organising or engaging in industrial action before the nominal expiry date of Watpac’s enterprise agreement had passed.

34. FWBC alleges that on 9 November 2010, Mr Peter Ong, Mr Andrew Clark, Mr Edward Bland, the CFMEU and CEPU contravened:

  • Section 43(1)(b) of the BCII Act by taking, or threatening to take action with the intent to coerce Watpac to engage, or not engage, a person as a building contractor;
  • Section 38 of the BCII Act by engaging in unlawful industrial action at the QIMR Project Site; and
  • Section 417 of the FW Act by organising or engaging in industrial action before the nominal expiry date of the relevant enterprise agreements had passed.

35. FWBC alleges that on 10 November 2010, Mr Peter Ong, Mr Andrew Clark the CFMEU and CEPU contravened:

  • Section 43(1)(b) of the BCII Act by taking, or threatening to take action with the intent to coerce Watpac to engage, or not engage, a person as a building contractor;

36. FWBC alleges that on 9 November 2010, Mr Andrew Temoho, Mr Timothy Jarvis and the CFMEU contravened:

  • Section 43(1)(b) of the BCII Act by taking, or threatening to take action with the intent to coerce Watpac to engage, or not engage, a person as a building contractor;
  • Section 38 of the BCII Act by engaging in unlawful industrial action at the Carrara Stadium Site; and
  • Section 417 of the FW Act by organising or engaging in industrial action before the nominal expiry date of the relevant enterprise agreements had passed.

FWBC Prosecution

37. FWBC filed a statement of claim in the Federal Court at Brisbane on 16 May 2012.

38. The matter was listed for a directions hearing before Deputy District Registrar Belcher on 13 June 2012.

39. The matter will be listed for further directions on a date to be fixed.

Penalties

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

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