02 September 2015FWBC takes construction company to Court for alleged discrimination, adverse action and coercion

Director of Fair Work Building Industry Inspectorate v Devine Constructions Pty Ltd, Tucker, Blore & Sengelman

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

Background

1.    On or about 9 April 2013, Devine Constructions entered into a contract with a steel fabrication company to initially provide bracing and waler works on the project.

Site

2.    Double One 3 Apartments project, consisting of one and two bedroom apartments and a number of retail spaces, 113 Commercial Road, Teneriffe, QLD

9 July 2013

1.    FWBC alleges that at 2.28pm, Devine Project Manager Wayne Sengelman received an email from Darcy Murdoch, CFMEU delegate on site, which contained an attachment titled “Signed EBA companies as at 12 June  2013”.

2.    FWBC alleges that Mr Sengelman forwarded this email to a company email address “Devine Constructions”.

3.    FWBC alleges that Mr Sengelman’s email should be understood as an instruction to not engage contractors on the project unless they had a CFMEU agreement, to use the attached list from the CFMEU as a guide, but to confirm that its contents were up to date before relying upon it.

23 July 2013

4.    FWBC alleges that Chad Bragdon of the CFMEU informed Mr Sengelman that the steel fabrication company was not to perform any work on the site because they did not have a CFMEU Agreement.

5.    At approximately 5.52pm, FWBC alleges that Mr Sengelman emailed Mr Tucker, general manager of Devine, regarding his conversation with “Chad the BLF organiser,” in which “Chad” stated that the CFMEU would not allow the steel fabrication company to perform work on site other than delivery of steel.

6.    The email from Mr Murdoch allegedly stated “[steel fabrication company] is not signed up to our EBA,” and the email from Mr Sengelman stated “they are not going to let you do any work on site because you don’t have a union EBA”.

25 July 2013

7.    The project manager and a labourer from the steel fabrication company attended the site with the intention of delivering and installing hold bolts.

8.    FWBC alleges that shortly after they arrived on site, Mr Murdoch informed the project manager and labourer that they were not allowed to come on site because “[steel fabrication company] are not signed up to our EBA”.

9.    Shortly after this, the project manager and labourer met with Mr Sengelman at Mr Sengelman’s office. FWBC alleges that Mr Sengelman said “What are we going to do about this? They are not going to let you on site to do any work because you don’t have a union EBA”.

10.  The labourer responded that it was not his problem, that it was Mr Sengelman’s problem.

11.  FWBC alleges that Mr Sengelman then left the office for approximately five minutes and when he returned said “We can take your hold bolts off but [labourer] is not allowed to touch them. He is not allowed to do any work here. You guys aren’t allowed to do any work here”.

12.  FWBC alleges that Mr Sengelman informed Mr Tucker via email that the CFMEU did not want the steel fabrication company to perform work on the site because it did not have a CFMEU Agreement and that Mr Sengelman had told the CFMEU that the company would not install bolts on the site.

13.  FWBC alleges that following this, Mr Tucker contacted Peter Close of the CFMEU to discuss the CFMEU’s concerns regarding the steel fabrication company performing work on site.

14.  FWBC alleges that on 26 July, a project engineer of Devine was sent a copy of Mr Sengelman’s emails to Mr Tucker dated 25 July and was therefore aware that Devine did not want the steel fabrication to continue with the bracing and whaler works unless until the steel fabrication company was covered by a CFMEU Agreement.

15.  On around 30 or 31 July, FWBC alleges that the project engineer spoke to the project manager and enquired about the steel fabrication company’s “EBA problem”. In response, the project manager told the project engineer about discussions between the steel fabrication company and the CFMEU about creating an enterprise agreement with the CFMEU.

16.  FWBC alleges that on 1 August 2013, the project engineer, on behalf of Devine, instructed the project manager that the steel fabrication company should continue bracing and waler works notwithstanding that it was not yet covered by a CFMEU Agreement.

11 October – 21 November 2013

17.  FWBC alleges that a contracts administrator, on behalf of Devine, sent a message to the steel fabrication company, inviting the company to tender for a second package of work on the project, referred to as the Structural Steel Works.

18.  On 23 October the project manager for the steel fabrication company submitted a tender to Devine for the structural steel works.

19.  On 21 November, the project manager for the steel fabrication company had a meeting with Andrew Blore, Contracts Administrator for Devine regarding the tender.

20.  FWBC alleges that during this meeting Mr Blore said “Do [steel fabrication company] have an EBA Agreement?” to which the project manager responded “No, we don’t have one; we have our own company agreement and we pay the workers the EBA rates.”

21.  FWBC alleges that Mr Blore said “We would like you to do the job but you don’t have an EBA Agreement,” to which the project manager responded “We don’t need to have an EBA Agreement to work on a building site. We’ve got a registered agreement.”

22.  Mr Blore then allegedly said “We’ve had problems with the union on the entire job”.

23.  In the context of discussions between Mr Blore and the project manager regarding construction works FWBC alleges that, “EBA Agreement” was understood to mean “CFMEU Agreement”.

January – February 2014

24.  In about January or February 2014, FWBC alleges that Mr Blore said to the project manager, during a telephone conversation “Has [steel fabrication company] signed up to the EBA Agreement?” to which the project manager responded “No, [steel fabrication company] is still waiting for the union to organise one. [steel fabrication company] has approached the BLF to arrange a meeting and that’s all we can do. It is up to them.”

25.  Mr Blore allegedly said “We need to get this EBA agreement sorted out before we can go any further. We don’t want to have any trouble with the union on site.”

26.  Over the period October 2013 – January 2014, Devine received tenders from at least eight entities for the structural steel works. Of those eight entities, FWBC alleges that the steel fabrication company was only given the opportunity to submit an initial price and one revised price, whereas other entities were given the opportunity  to submit an initial price plus two or three revised prices.

27.  On 22 January, FWBC alleges that Mr Blore and a senior project manager of Devine signed a document titled “Authority to Let” that recommended that the structural steel works be awarded to an entity that was not the steel fabrication company.

28.  FWBC alleges that the document referred to the eight entities that had tendered for the works and that it recorded, next to the entry for the steel fabrication company “Union recommended not to use – in the process of signing an EBA”.

29.  On 23 January, Mr Tucker decided, on behalf of Devine, not to award the structural steel works contract to the steel fabrication company.

30.  On or about 10 February 2014, FWBC alleges that during a telephone conversation, Mr Blore said to the project manager “Devine has let it out [contract] to a company who has an EBA agreement,” to which the project manager asked “Do you need a signed EBA agreement to work on this site?”

31.  FWBC alleges that Mr Blore said “Yes. We do not want any problems with the union”.

32.  FWBC alleges that the steel fabrication company’s lack of a CFMEU agreement was a substantial and operative factor in Mr Blore’s decision to not allow the steel fabrication company more than one opportunity to submit a revised price and not recommend the steel fabrication company for the structural steel works contract.

Contraventions

1.    FWBC alleges that Devine Constructions contravened section 340 of the Fair Work Act on two occasions.

2.    FWBC alleges that Devine Constructions contravened section 343 of the Fair Work Act on one occasion

3.    FWBC alleges that Devine Constructions contravened section 354 of the Fair Work Act on two occasions

4.    FWBC alleges that Mr Tucker, Mr Sengelman and Mr Blore were involved in the alleged unlawful conduct of Devine Constructions.

Maximum penalties

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

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