13 July 2015FWBC puts major contractor before Federal Court

Director of Fair Work Building Industry Inspectorate v ADCO Constructions & Ors

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

Background

From 2006 to mid October 2012, a crane company regularly carried out crane services work for ADCO on ADCO construction sites. Crane services work carried out for ADCO provided approximately one third of the crane company’s income. ADCO would book the crane company in advance and at the time of the booking would provide the crane company with an estimate of the likely duration of the crane services required. 

Sites

1.    The Bond University Project, Bond University Abedian School of Architecture, 14 University Drive Robina

2.    Pindara Hospital Project, Allchurch Ave, Benowa

3.    The Robina Project, Robina Town Shopping Centre, Robina

12 & 13 October 2012

1.    FWBC alleges that on 12 October ADCO contract administrator, Michael Duckett, telephoned the Director of the crane company and said “We can’t tell you to get an EBA, but we have strongly been urged to use nominated contractors or some one with a bona fide EBA,” and “we are encouraged to use recognised EBA’s”.

2.    FWBC alleges that during the morning of 12 October, CFMEU officials were present on site and that an ADCO foreman told one of the crane company’s crane operators who was performing work on the project “The unions are here, close down the crane and just go and have lunch or a smoko break”.

3.    Just before 9am, FWBC alleges that the foreman told the same crane operator “There is another crane company coming in and the [the crane company] won’t be used on site anymore”.

4.    When the crane operator asked what he had done wrong, the foreman allegedly responded “It’s nothing to do with you”.

5.    FWBC alleges that on 13 October ADCO foreman Gregg Radburn asked the crane company’s operations manager to remove the crane company’s crane from the Bond University project.

6.    When the operations manager asked Mr Radburn why, Mr Radburn allegedly responded “Well you know what’s been happening. We can’t have you guys here anymore for that reason”.

20 October 2012

7.    FWBC alleges that the crane company’s Sole Director and his wife had a conversation with ADCO site manager Richard Tanner at the Bond University project and that during this conversation Mr Tanner said to the Director that he should take his crane home becase “we [the site] have been instructed by the office to use another company,” and it was out of his hands.

8.    Mr Tanner allegedly confirmed that there had been no safety breach and that he was unhappy that the crane company had been removed from the site.

27 October 2012

9.    The crane company Director and his wife met with ADCO QLD manager Simon Hawkins at ADCO’s office.

10.  During the meeting, FWBC alleges that Mr Hawkins stated that ADCO had signed a ‘union EBA’ to assist ADCO in moving from the ‘Tier 2’ type work they were performing to ‘Tier 1’ type work, that under the ‘union EBA’ ADCO could only utilise companies with union or ‘bona fide’ EBAs and that the crane company would need to sign a union EBA to continue working for ADCO.

Late October 2012

11.  During a telephone conversation with Mr Hawkins, the crane company’s Director’s wife stated that she did not understand why the crane company was being penalised, to which FWBC alleges that Mr Hawkins responded “It would be advisable for you to get a union EBA and we can re-engage you.”

12.  The director’s wife advised that they did have an Enterprise Agreement to which the Mr Hawkins allegedly responded that it was not a union agreement and not a ‘bona fide’ agreement.

13.  The crane company did not complete any work on the Bond University project after 12 October 2012. FWBC alleges that the removal of the crane company from the project caused loss and damage to the crane company in that its income was reduced by the amount of between approximately $390,000 and $780,000.

3  & 14 May 2013

14.  FWBC alleges that on 3 May an employee for ADCO telephoned the crane company Director seeking rates for installing site sheds at the Pindara Hospital project and a representative emailed details of the applicable dates to the ADCO employee.

15.  FWBC alleges that on 14 May at the Pindara Hospital project, the project site manager said to the crane company Director “I was instructed to hire Gold Coast Cranes and had booked them to install site sheds on 16 May 2013.” “Perhaps [the crane company’s] rates were not sharp enough”.

16.  The Director asked “Is this a union site?” to which the site manager allegedly responded “Yes the union will be watching what goes on here very closely”.

17.  The site manager then allegedly asked “Why don’t you have a union EBA?” to which the Director responded “No, they wouldn’t consider us as a company to have a union EBA with, especially seeing how only 20% of our work is carried out on union sites”.

18.  FWBC alleges that the crane company was not engaged at the Pindara Hospital project because employees of the crane company were not covered by an Enterprise Agreement which covered the CFMEU and that the crane company suffered loss and damage as a result of being excluded from consideration for that work.

5 & 6 July 2013

19.  FWBC alleges that on 5 July, Mr Tanner, booked the crane company to carry out crane services work at the Robina project, commencing 8 July.

20.  FWBC alleges that on 6 July, Mr Tanner telephoned the Director of the crane company and stated that he was cancelling the job due to a meeting he had with a union delegate the day before who told him that if the union saw the crane company’s cranes on site they would shut the Robina project down.

21.  FWBC alleges that the site manager cancelled the engagement of the crane company on the Robina project because employees of the crane company were not covered by an Enterprise Agreement which covered the CFMEU and that the crane company suffered loss and damage as a result of having the work cancelled and also by losing the opportunity to perform additional work on the site.
 

Contraventions

22.  FWBC alleges that ADCO unlawfully discriminated against the crane company on each of the projects contrary to section 354(1) of the Fair Work Act.

 

Maximum penalties

23.  The maximum penalties available to the court in this case are $10,200 for an individual and $51,000 for a corporation.

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