The ABCC has taken Court action against the CFMMEU and seven officials alleging the union mounted a concerted campaign to coerce a Victorian building company to make a CFMMEU enterprise agreement.
The ABCC is alleging the union’s campaign in 2021 saw CFMMEU officials attending the contractor’s worksites on most workdays over a three-month period, often remaining on site throughout the day.
During that time union officials issued 400 right of entry notices and caused wide-scale disruption to work on the contractor’s projects. In the 18 months prior to the campaign, the CFMMEU had only issued 40 right of entry notices to the company. That number was exceeded within the first two days of the union’s campaign.
Comments made during and after the campaign indicated that the CFMMEU wanted the contractor to make an enterprise agreement. After a meeting between the contractor and the CFMMEU during which the union explained why they wanted the contractor to sign up, there was a “cease-fire” to allow the contractor to consider agreeing to make an enterprise agreement.
The ABCC’s Statement of Claim alleges that on multiple occasions during the campaign, CFMMEU officials contravened right of entry laws, including during the following incidents:
· On 17 March 2021 at a construction project for three new apartment buildings in Alphington, CFMMEU official James Simpson turned off a generator without any notice, which shut down power to the whole site and created a safety hazard including shutting off the site’s evacuation system. Work was stopped on the project for the remainder of the day.
· On 23 March at a hotel/apartment project in Collingwood, CFMMEU official Gerald McCrudden stood on the driveway blocking trucks attempting to enter the site. When asked to move Mr McCrudden, said words to the effect of: “I can stand wherever the f**k I like.”
· On 13 April at a residential apartment project in Croydon, Mr McCrudden and Jason Deans entered the project by a rear gate despite signage indicating only authorised personnel could enter. They remained in a “no go” zone through which trucks would drive, despite site personnel asking them to leave, return to the main entry and sign in.
· Over 14 and 15 April at the Croydon project, three CFMMEU officials entered construction zones in which excavators were operating and refused to leave despite repeated requests by site personnel. On one of these occasions, CFMMEU official Paul Tzimas walked up to an operating excavator and caused it to stop work.
· On 4 May at the Croydon project, CFMMEU official Jaxson Mahy accessed a site manager’s computer without permission and took a photo of its contents.
The ABCC is alleging the union’s campaign was unlawful, illegitimate and unconscionable, citing:
· The high volume of right of entry notices and entries by CFMMEU officials which were disproportionate to any reasonably suspected safety concerns or interest in an enterprise agreement.
· The wide-scale disruption of work across the company’s projects; and
· The impact on the mental health of its employees.
The ABCC is alleging the CFMMEU and a number of its officials breached sections 499 and 500 of the Fair Work Act 2009.
The ABCC is also alleging that by organising and engaging in the campaign with the intent to coerce or apply undue pressure to the company to agree to make a building enterprise agreement, the CFMMEU contravened s.54 of the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act).
The maximum penalty for a contravention of the Fair Work Act is $66,600 for a body corporate and $13,320 for an individual.
The maximum penalty per contravention under the BCIIP Act is $222,000 for a body corporate and $44,400 for an individual.
The ABCC is seeking personal payment orders against all seven named CFMMEU officials: James Simpson, Gerald McCrudden, Peter Clark, Jason Deans, James Harris, Jaxson Mahy and Paul Tzimas.
The ABCC will submit that Court imposed penalties be paid personally by the officials and not be paid or reimbursed directly or indirectly by the CFMMEU or through crowd funding.