12 September 2014Subcontractor allegedly told it needed an EA with the CFMEU to work “in the city”

Director of Fair Work Building Industry Inspectorate v CFMEU and ors

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

 

  1. FWBC has launched proceedings in the Federal Court of Australia against the Construction, Forestry, Mining and Energy Union (CFMEU), CFMEU official Theo Theodorou, building company Harris HMC Interiors (Vic) Pty Ltd (Harris Interiors) and its employees – Jason Dwyer, Shanne Darker and Carmelo Silvestro.

  2. FWBC alleges the CFMEU, Mr Theodorou, Harris Interiors and other respondents allegedly took adverse action, attempted to coerce and discriminated against a subcontractor involved with the redevelopment of the Kathleen Syme Library and Community Centre in Carlton, Victoria, because it did not have  an enterprise agreement with the CFMEU. It is also alleged that the CFMEU and Mr Theodorou made false and misleading statements to the subcontractor about the need to make an enterprise agreement with the CFMEU.

23 October 2013

  1. The director of the subcontractor received an email from the head contractor Harris Interiors’ Project Manager, Shanne Darker, requesting evidence of the company’s enterprise agreement with the CFMEU

  2. It its alleged that in a later email on the same day Mr Darker stated the “situation” was disappointing and “as a consequence this will now cause further increased CFMEU awareness on this project”.

  3. FWBC alleges Mr Theodorou later spoke on the telephone with the director of the subcontractor and said words to the effect that: “as [the demolition company] is working in the city, it needs to obtain an enterprise agreement with the CFMEU for its employees”.

  4. At all relevant times there was not requirement, legally or otherwise, for the company to make an enterprise agreement with the CFMEU in relation to its employees.

  5. FWBC alleges Mr Theodorou and the CFMEU contravened sections 345 and 349 of the Fair Work Act by knowingly or recklessly making a false or misleading representation about a workplace right.

Late October 2013

  1. It is alleged in or around late October, the director of the subcontractor met with Mr Theodorou and Shaun Reardon, Assistant Secretary of the Victorian Construction and General Branch of the CFMEU.

  2. FWBC alleges during the meeting the CFMEU representatives gave the director a copy of an enterprise agreement and said words to the effect: “You work in the city so you have to have an enterprise agreement and you should sign this now”.

  3. FWBC alleges the CFMEU contravened sections 345 and 349 of the Fair Work Act by knowingly or recklessly making a false or misleading representation about a workplace right.

15 November 2013

  1. It is alleged at approximately 3.30pm on 15 November 2013, Mr Theodorou had a telephone conversation with the subcontractor.

  2. It is alleged the director told Mr Theodorou that he was financially unable to sign the enterprise agreement. It is alleged, in response, Mr Theodorou said words to the effect: “I’m going to make everything very difficult and not let the boys work on the Site”.

  3. FWBC alleges at approximately 5pm the Harris Interiors’ Operations Manager, Jason Dwyer, had a conversation with the subcontractor and said words to the effect: “If you don’t sign the enterprise agreement with the union, then your boys would not be able to work on the site on Tuesday”.

  4. It is alleged Mr Dwyer told the subcontractor that he needed to meet with Mr Theodorou to “sort this all out” and words to the effect: “If you don’t sign the enterprise agreement they’re going to get other employees that are covered by an enterprise agreement to finish the job and then charge [the subcontractor] for it”.

  5. It is further alleged at approximately 5.30pm the director received an email from the Project Manager, Shanne Darker, requesting the company advise Harris Interiors by midday the next Monday about its progress with Mr Theodorou and stating: “If this cannot be achieved, an additionally sourced of fully compliant labour will require (sic) to be sourced by Tuesday on site, as this project must be kept moving” and “If this cannot be sourced we will have no other option but to find the additional labour to contra charge accordingly”.

  6. FWBC alleges the CFMEU, Mr Theodorou, Harris Interiors and its employees took adverse action and attempted to coerce the subcontractor to sign an enterprise agreement with the CFMEU.

 

19 November 2013

  1. FWBC alleges at approximately 6.30am on 19 November 2013 Carmelo Silvestro, the Site Manager prevented the subcontractor’s employees from performing any work on the site.

  2. It is alleged Mr Silvestro said words to the effect: “Tell the boys to hang around until we get further notice that we can start work” and “the union rep will be coming in to talk to you”.

  3. It is further alleged the employees were not permitted to start work on the Site until approximately 10.15am on 19 November 2013.

  4. FWBC alleges at approximately 9am Mr Silvestro had a telephone conversation with the director of the subcontractor and said words to the effect: “You need to sort out what’s happening with the union”.

  5. It is alleged that Harris Interiors and its employees contravened the Fair Work Act by taking adverse action and attempted to coerce the subcontractor to sign an enterprise agreement with the CFMEU.

  6. It is further alleged Mr Theodorou was an accessory to these contraventions.

Contraventions

  1. It is alleged that Mr Theodorou contravened ss. 340, 343, 345, 348, 349 and 354 of the Fair Work Act.

  2. FWBC alleges the CFMEU contravened ss. 340, 343, 345, 348, 349 and 354 of the Fair Work Act.

  3. It is alleged Mr Dwyer and Mr Darker contravened ss. 340, 343 and 348 of the Fair Work Act.

  4. It is further alleged Mr Silvestro contravened ss. 340, 343, 348 and 354 It is alleged the CFMEU contravened ss. 340, 343, 348 and 354 of the Fair Work Act.

  5. FWBC alleges Harris Interiors contravened ss. 340, 343, 348 and 354 of the Fair Work Act.

Penalties

The maximum applicable penalty for each contravention of the Fair Work Act in this matter is $10,200 for an individual and $51,000 for a body corporate.

 

 

PDF icon Backgrounder subcontractor allegedly told it needed an enterprise agreement with the CFMEU to work in the city.pdf