The ABCC has taken legal action against the CFMMEU and seven officials alleging the union staged a concerted campaign to coerce a Victorian construction company into entering into a works agreement with the CFMMEU.
The ABCC alleges that the union’s campaign in 2021 saw CFMMEU officials visiting the contractor’s worksites on most working days over a three-month period, often staying on site all day.
During this period, union officials issued 400 right-of-way notices and caused large-scale disruption of work on the contractor’s projects. In the 18 months preceding the campaign, the CFMMEU had issued only 40 right-of-entry notices to the company. This number was exceeded during the first two days of the union campaign.
Comments made during and after the campaign indicated that the CFMMEU wanted the contractor to enter into a business agreement. After a meeting between the contractor and the CFMMEU during which the union explained why they wanted the contractor to engage, there was a “ceasefire” to allow the contractor to consider agree to enter into a business agreement.
The ABCC statement alleges that on several occasions during the campaign, CFMMEU officials violated right of entry laws, including in the following incidents:
· On March 17, 2021, during a construction project for three new apartment buildings in Alphington, CFMMEU manager James Simpson turned off a generator without notice, which cut off power to the entire site and created a safety risk, including the closure of the site’s drainage system. Work was halted on the project for the remainder of the day.
· On March 23, at a hotel/apartment project in Collingwood, CFMMEU manager Gerald McCrudden stood in the driveway, blocking trucks attempting to enter the site. When asked to move Mr. McCrudden, he said words to the effect of: “I can stand wherever I want.”
· On April 13, at a residential flats project in Croydon, Mr McCrudden and Jason Deans entered the project through a back door despite signage stating that only authorized personnel could enter. They remained in a ‘prohibited’ area through which trucks drove, despite being told by site staff to leave, return to the main entrance and log on.
· On 14 and 15 April, at the Croydon site, three CFMMEU officers entered construction areas where excavators were operating and refused to come out despite repeated requests from site staff. On one such occasion, CFMMEU official Paul Tzimas approached a moving excavator and made it stop work.
· On May 4, at the Croydon project, a CFMMEU official, Jaxson Mahy, accessed a site manager’s computer without permission and took a photograph of its contents.
The ABCC alleges that the union’s campaign was illegal, illegitimate and impermissible, citing:
· The high volume of right of entry notices and entries by CFMMEU officials that were disproportionate to any reasonably suspected security concern or interest in a corporate agreement.
· Large-scale disruption of work in all company projects; and
· The impact on the mental health of its employees.
The ABCC alleges that CFMMEU and a number of its officials breached sections 499 and 500 of the Fair Work Act 2009.
The ABCC also alleges that by organizing and engaging in the campaign with the intent to coerce or exert undue pressure on the company to agree to enter into a construction company agreement, the CFMMEU violated section 54 of the building and construction industry (productivity improvement). Law of 2016 (BCIIP Law).
The maximum penalty for a violation of the Fair Work Act is $66,600 for a corporation and $13,320 for an individual.
The maximum penalty per contravention under the BCIIP Act is $222,000 for a corporation and $44,400 for an individual.
The ABCC is seeking personal payment orders against the seven named CFMMEU officials: James Simpson, Gerald McCrudden, Peter Clark, Jason Deans, James Harris, Jaxson Mahy and Paul Tzimas.
The ABCC will submit that the sanctions imposed by the Court must be paid personally by the officials and not paid or reimbursed directly or indirectly by the CFMMEU or through crowdfunding.
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