The Australian Building and Construction Commission (ABCC) continues its active investigation and prosecution of workplace law breaches, with a number of recent cases highlighting its important role in upholding compliance.
Queensland contractor to pay $200,000 after discriminating against subbie following CFMMEU threat
The Federal Circuit Court in Brisbane has found Forest Meiers Construction liable to pay $200,000 in compensation for taking adverse action and discriminating against a tiling subcontractor because they did not have an enterprise agreement with the CFMMEU.
The Court found that Forest Meiers and its Construction Manager William Munro, contravened the Fair Work Act by discriminating against the subcontractor.
On 24 February 2014, the tiling company submitted a quote to Forest Meiers for its Remora Road project in Hamilton, with the tiling company becoming the preferred bidder for the project.
When Forest Meiers asked if the tiling company had an enterprise agreement with the CFMMEU, the company’s managing director said he already had a (non-union) enterprise agreement registered with the Fair Work Commission but was happy to pay the union rates for the purposes of the project.
The tiling company’s managing director then agreed to a Forest Meiers proposal to register a new company so it could sign up to a CFMMEU enterprise agreement.
During a meeting on 18 July 2014, Mr Munro told the tiling company’s managing director:
“The union contacted me at around 5:00 yesterday. They threatened action on the site if we signed you up.”
Judge Jarrett found that notwithstanding the possibility of union disruption, Forest Meiers had a choice to make:
“I accept that Mr Munro believed that the CFMEU or the BLF would cause disruption and delay which in turn would cause financial disadvantage and reputational issues for Forest Meiers.”
“They were faced with the prospect of industrial action if they engaged C&K and if they did not, the next closest tenderer who had an EBA with the CFMEU was $300,000 more expensive than C&K.
“I find, that the fact that C&K did not have an enterprise agreement with the CFMEU was a substantive and operative reason for Mr Munro’s decision not to accept C&K’s tender for the Tiling Works.
“… Forest Meiers had a choice to make. Mr Munro… knew that if the CFMEU was applying pressure not to engage C&K because it had no agreement with that company, that pressure was illegitimate… Notwithstanding that, Mr Munro made a deliberate choice not to award the Tiling Works contract to C&K.”
The matter remains before the courts.
CFMMEU and Luke Collier penalised $13,500 for safety breach on Barangaroo site
The Federal Circuit Court in Sydney has imposed penalties totaling $13,500 against the CFMMEU and its then organiser Luke Collier after he refused to follow OHS procedures while on the $163 million Barangaroo Headland Park site on 5 March 2014.
Mr Collier was penalised $2,700 which brings total penalties imposed by the Courts against him to $63,600.
Mr Collier admitted it was an OHS requirement that visitors attending the site remain accompanied by a project representative who has undertaken a full site induction.
In the earlier liability judgment, the Court found that the request was a reasonable one in the circumstances. Despite the request being made of him, Mr Collier proceeded onto the site without being accompanied by a relevant project representative. The judgment of the Court stated:
“[Mr Collier’s] subsequent conduct in embarking on the safety walk was therefore left without a reasonable explanation. His action could be described as arbitrary, capricious and impulsive.”
The liability judgment further refers to police attending site and forcibly removing Mr Collier. It states:
The police determined the entry to be unlawful and advised Sloane and Collier that they were trespassing.
The Police Officer said: “We are telling you now that you are here unlawfully and asking you to leave the site.”
Collier said: “What are you going to do if I don’t leave.”
The Police Officer used an official phrase and said, “I am (mentioned his title), ….” the inspector then proceeded to say words that included, “I will now have to forcibly remove you from the premises.”
Earlier this year Mr Collier was penalised $40,400 for his unlawful conduct on the Barangaroo South site where he was found to have attempted to intimidate ABCC inspectors by reading out an inspector’s mobile number during an address to workers. Total penalties of $1.7 million were imposed by the Federal Court in the Barangaroo South case.
The penalties imposed on Mr Collier and the CFMMEU brings total penalties against the union to $16.46 million imposed by the Courts in litigation brought by the ABCC and its predecessor agencies.
The ABCC remains in place to ensure building and construction industry participants’ compliance with Australia’s workplace laws.
As a consistent supporter of the ABCC since it was first recommended by the Cole Royal Commission in 2003, AREEA recently provided input into a review of the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act), reiterating industry’s support for the regulator’s retention.
Further, AREEA continues to support the passage of the “Ensuring Integrity Bill“, which contains various measures seeking to lift the standards, behaviours and transparency of all registered organisations including trade unions and registered employer groups.
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