Landscaping firm, CFMEU alleged to have discriminated against subcontractor

Allegations that a waterproofing company was kicked off a Fortitude Valley construction site because it did not have a union EBA has landed landscaping firm Dig-It and the CFMEU in court.

In a claim filed in the Federal Circuit Court, Fair Work Building and Construction alleges Dig-It Landscapes one of its managers, Nathan Futyma, and former manager, David Mercer, breached the Fair Work Act (2009) in terminating the contract it had with the waterproofing company after the CFMEU said the company was not allowed to work on site.

The CFMEU and one of its officials, Kurt Pauls, are also listed as respondents in the matter.

It is alleged that on the morning of 6 May 2014, Mr Pauls approached a worker from the waterproofing company and said he was not allowed on site as the company did not have an EBA with the CFMEU.

When the waterproofing company’s state manager raised the issue with Dig-It’s project manager, Mr Mercer, the following exchange is alleged to have taken place:

Mr Mercer: I didn’t know you guys didn’t have a union EBA. That is causing us a problem.

State Manager: We’ve got an EBA that is identical in every facet with a union EBA. I’m not sure what else we can do. We have tried to get an EBA with the CFMEU.

Mr Mercer: We didn’t know you didn’t have an EBA; this is going to cause us a problem. If we can’t fix this issue, we would have to terminate your contract.

It is alleged that the following day Mr Mercer informed the waterproofing company that its contract would be terminated and sent an email with an attached letter signed by Dig-It’s construction manager, Mr Futyma, terminating the company’s contract.

FWBC Director Nigel Hadgkiss said subcontractors and their workers ought to be able to enter into any Enterprise Agreement of their choosing without facing the threat of being excluded from worksites.

“It is unlawful to discriminate against subcontractors and their workers based on the enterprise agreement they choose to enter into. Under the Fair Work Act (2009) there is no such thing as ‘no ticket, no start’ or a ‘union EBA project’,” Mr Hadgkiss said.

“This type of unlawful behavior is very serious. It has the potential to put companies out of business and workers out of a job.”

The matter has been set for first mention on 4 April.

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