Heyman v CFMEU
[2011] FMCA 145
•8 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HEYMAN v CFMEU & ORS | [2011] FMCA 145 |
| INDUSTRIAL LAW – Penalty hearing – unlawful building industrial action – admitted contraventions – considerations on penalty – agreed penalty. |
| Building and Construction Industry Improvement Act 2005 (Cth) ss.37, 38, 69 |
| Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426 Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543 Construction Forestry Mining & Energy Union v Coal & Allied Operations Pty Ltd (No.2) (1999) 94 IR 231 Australian Ophthalmic Supplies Pty Limited v McAlary-Smith (2008) 165 FCR 560 A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466 NW Frozen Foods Pty Ltd v ACCC (1996) 71 FCR 285 Wells v Locarno Management Pty Ltd [2008] FCA 1034 Hills v Sutton (2007) 169 IR 327 Minister for Industry Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCA FC 72 |
| Applicant: | SHAD HEYMAN |
| First Respondent: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
| Second Respondent: | NOEL WASHINGTON |
| Third Respondent: | MATTHEW HUDSON |
| Fourth Respondent: | ELIAS SPERNOVASILIS |
| File Number: | MLG 465 of 2010 |
| Judgment of: | O'Sullivan FM |
| Hearing date: | 8 March 2011 |
| Date of Last Submission: | 8 March 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 8 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr R.Dalton |
| Solicitors for the Applicant: | Trindade Farr & Pill Lawyers |
| Counsel for the First, Second, Third and Fourth Respondents: | Ms E. Walters |
| Solicitors for the First, Second, Third and Fourth Respondents: | Construction, Forestry, Mining and Energy Union |
ORDERS
A penalty of $6,000.00 be imposed on the second respondent for his contravention of s.38 of the Building and Construction Industry Improvement Act 2005 constituted by his conduct on 21 May 2008 when he banned work on a tower crane at the Royal Children’s Hospital site at Parkville, Victoria.
A penalty of $5,000.00 be imposed on the third respondent for his contravention of s.38 of the Building and Construction Industry Improvement Act 2005 constituted by his conduct on 21 May 2008 when he banned work on a tower crane at the Royal Children’s Hospital site at Parkville, Victoria.
A penalty of $30,000.00 be imposed on the first respondent for its contravention of s.38 of the Building and Construction Industry Improvement Act 2005 arising from its vicarious liability for the contravening conduct of its officials, the second and third respondents.
The penalties be paid to the Consolidated Revenue Fund within
28 days of the date of this Order.
The proceedings otherwise be dismissed with no order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 465 of 2010
| SHAD HEYMAN |
Applicant
And
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
First Respondent
| NOEL WASHINGTON |
Second Respondent
| MATTHEW HUDSON |
Third Respondent
| ELIAS SPERNOVASILIS |
Fourth Respondent
REASONS FOR JUDGMENT
Shad Heyman (“the applicant”) is an inspector appointed pursuant to s.57 of the Building and Construction Industry Improvement Act 2005 (“the BCII Act”). On 1 April 2010 the applicant commenced these proceedings against the Construction Forestry, Mining and Energy Union (“the first respondent”), Noel Washington (“the second respondent”), Matthew Hudson (“the third respondent”) and Elias Spernovasilis (“the fourth respondent).
The applicant alleged conduct in breach of the BCII Act by the respondents at a building site at the Royal Children’s Hospital in Melbourne on 21 May 2008.
The proceedings were the subject of a number of directions hearing during which orders were made including referring the matter to mediation.[1] There orders made on 9 November 2010 fixing the matter for final hearing as follows:
[1] see orders 4 May 2010; 15 July 2010 and 3 October 2010
“1.The Directions Hearing listed on Wednesday, 10 November 2010 at 9.30 am be vacated.
2.Each of the Respondents to file and serve a Response and Defence if any to the Amended statement of Claim by no later than Wednesday 24, November 2010.
3.The Applicant file and serve any Reply to the Response and Defences of the Respondents by no later than Wednesday,
1 December 2010.
4.The Applicant file and serve Outlines of Evidence by no later than Wednesday 29 December 2010.
5.The Respondents file and serve Outlines of Evidence if any by no later than Thursday, 27 January 2011.
6.The matter be listed for a telephone mention on Friday,
11 February 2011 at 1.30 pm.
7.The parties file and serve any Subpoenas at least 7 days prior to the final hearing date.
8.The matter be listed for a final hearing commencing on
7 March 2011 at the Federal Magistrates Court of Australia at Melbourne (with an estimated hearing duration of 3 days) commencing at 10.00 am.
9.The parties have liberty to apply.”
However, just prior to the final hearing, the parties filed the following minute of consent orders on 4 March 2011 which provided:
“1. The parties have leave to file the Statement of Agreed Facts.
2.The hearing listed on Monday, 7 March 2011 be vacated.
3.Both parties shall file and serve written submissions by not later than 4.00 pm on Monday, 7 March 2011…
4.The matter be adjourned for a penalty hearing on Tuesday, 8 March 2011 at the Federal Magistrates Court of Australia at Melbourne commencing at 10.00 am.
5.Costs be reserved.”
The parties filed a Statement of Agreed Facts on 4 March 2011 which is Annexure A to these reasons (“S.O.A.F”).[2] Submissions were also filed on behalf of the parties.[3]
[2] marked as Exhibit A1
[3] see applicant’s submissions filed 7 March 2011 marked as Exhibit A2 and respondents submissions filed 8 March 2011 marked as exhibit R1
At the penalty hearing, the applicant was represented by Mr Dalton of Counsel, and the respondents by Ms Walters. The parties tendered a number of documents which were marked as exhibits and otherwise relied on their written submissions.
There was agreement on formal matters such as the applicant’s ability to bring these proceedings, the status of the respondents under the BCII Act and that the second and third respondent’s at all relevant times were acting in their capacity as officers of the first respondent.[4]
[4] see paras 1-6 of S.O.A.F.
The S.O.A.F and the submissions filed on behalf of the parties makes clear the respondents made certain admissions,[5] the parties have an agreed position on penalty and otherwise the proceedings as against the fourth respondent should be dismissed.[6]The Court was asked to consider what penalties should be imposed on the first, second and third respondents for reasons that will become clear presently.
[5] see for e.g paras 19-20 of S.O.A.F and exhibits A2 and R1, submissions of Counsel for the respondent regarding the S.O.A.F and s.191 Evidence Act 1995 (Cth)
[6] see para 25 of applicant’s submissions filed 7 March 2011 and paras 4 & 25 of respondents submissions filed 8 March 2011
Background
The proceedings are brought in respect of events that occurred at the Royal Childrens Hospital in May 2008.
The following summary, which is taken from the parties material, is necessary to understand the (agreed) position of the parties on the appropriate penalties.
In 2008 Bovis Lend Lease Pty Ltd (“BLL”) was the head contractor for the Royal Children’s Hospital construction project at 52 Flemington Road in Parkville, Victoria (“the Site”).
On 21 May 2008 building works being carried out on the Site involved the operation of a tower crane.
BLL had a labour hire arrangement with Direct Skills Pty Ltd. Direct Skills employed the employees who operated the tower crane at the Site.
Those employees were performing and were required to perform, work on Site in accordance with the terms and conditions prescribed in an industrial instrument that applied to their employment, being:
a)the common rule award which declared the National Building and Construction Industry Award 2000 as applying to building work across Victoria by operation of common rule; and
b)the Direct Skills Pty and the CFMEU Building Industry Enterprise Agreement 2005-2008.
Before 21 May 2008, representatives of the first respondent had held discussions with BLL regarding employment arrangements for the crane crew at the Site. The second and third respondents believed that BLL had agreed that the crane crew would be employed directly by Caelli Constructions.[7]
[7] see para 7 of S.O.A.F – Exhibit A1
Shortly before 9.30 am on 21 May 2008, the second and third respondents entered the Site and proceeded to the tower crane.
At around the same time the employees left the crane for their scheduled morning break.
As they did so, the second respondent asked the crane driver who his employer was. The crane driver replied that he was employed by Direct Skills.
Whilst the crane was unattended the second and third respondents climbed the tower crane and blocked access to it by placing a piece of plywood flat across the manhole and standing on it.
The third respondent told the site foreman they had taken possession of the crane, and wanted to speak to BLL’s Operations Manager.
BLL managers tried to get the second and third respondents to come down from the crane.
Discussions were subsequently held with BLL managers who were advised that the second and third respondents would not come down from the crane until the concerns they had with manning levels were fixed.
BLL’s Operations Manager phoned the second respondent to discuss the staffing levels and employment arrangements. The second and third respondents did not come down from the crane until after 12.30 pm.
The relevant provisions of the BCII Act
Section 38 of the BCII Act provides:
“A person must not engage in unlawful industrial action. Grade A civil penalty.”
“[U]nlawful industrial action” is described in s.37 of the BCII Act as follows:
“Building industrial action is unlawful industrial action if:
(a) the action is industrially-motivated; and
(b) the action is constitutionally-connected action; and
(c) the action is not excluded action.”
The expression “building industrial action” is defined in s 36(1) of the BCII Act to mean:
“(a)the performance of building work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to building work, the result of which is a restriction or limitation on, or a delay in, the performance of the work , where: (i) the terms and conditions of the work are prescribed, wholly or partly, by an industrial instrument or an order of an industrial body; or (ii) the work is performed, or the practice is adopted, in connection with an industrial dispute (within the meaning of subsection (4)); or
(b)a ban, limitation or restriction on the performance of building work, or on acceptance of or offering for building work, in accordance with the terms and conditions prescribed by an industrial instrument or by an order of an industrial body; or
(c)a ban, limitation or restriction on the performance of building work, or on acceptance of or offering for building work, that is adopted in connection with an industrial dispute (within the meaning of subsection (4)); or
(d)a failure or refusal by persons to attend for building work or a failure or refusal to perform any work at all by persons who for building work;
but does not include:
(e)action by employees that is authorised or agreed to, in advance and in writing, by the employer of the employees; or
(f)action by an employer that is authorised or agreed to, in advance and in writing, by or on behalf of employees of the employer; or
(g) action by an employee if:
(i)the action was based on a reasonable concern by the employee about an imminent risk to his or her heath or safety; and
(ii)the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was sage for the employee to perform;
Note:See also subsection (2), which deals with the burden of proof of the exception in paragraph (g) of this definition.”
Section 69 of the BCII Act provides:
“(1)For the purposes of this Act, the following conduct in relation to a building association is taken to be conduct of the building association:
(a)conduct of the committee of management of the association;
(b)conduct of an officer or agent of the association acting in that capacity;
(c)conduct of a member, or group of members, of the association where the conduct is authorised by:
(i) the rules of the association; or
(ii) the committee of management of the association; or
(iii) an officer or agent of the association acting in that capacity;
(d)conduct of a member of the association, who performs the function of dealing with an employer on behalf of the member and other members of the association, acting in that capacity.
(2) Paragraphs (1)(c) and (d) do not apply if:
(a)a committee of management of the building association; or
(b) a person authorised by the committee; or
(c)an officer of the industrial association; has taken reasonable steps to prevent the action.
(3) In this section:
officer, in relation to a building association, includes:
(a)a delegate or other representative of the association; and
(b) an employee of the association.”
The maximum penalties for a contravention of s.38 of the BCII Act are $22,000 for an individual and $110,000 for an organisation.
The application
The application as filed on 1 April 2010 sought the following orders:
“…
25. The applicant seeks the following relief:
(a)Declarations pursuant to section 16(1) of the Federal Magistrates Act 1999 (Cth) that the respondents have contravened section 38 of the BCII Act.
(b)Orders pursuant to section 49(1)(a) of the BCII Act for pecuniary penalties to be imposed on the respondents in respect of their contraventions of s.38 of the BCII Act by their conduct on 21 May 2008;
(c)Any other order that the Court considers appropriate under s.49(1)(c) of the BCII Act.”
Contraventions
As noted above the parties filed the S.O.A.F which relevantly for present purposes provided:
“7.Before 21 May 2008, representatives of the First Respondent held discussions with BLL management regarding employment arrangements for the crane crew on the Building Works. The Second and Third Respondents believed that BLL had agreed that the crane crew would be employed directly by Caelli Constructions.
8.On 21 May 2008, shortly before 9.30am, the Second and Third Respondents entered the site and proceeded to the tower crane which was the sole crane on the site at that date. They did so because they suspected that the crane crew was engaged on a daily hire basis, inconsistent with what they understood to be the agreed crane crew arrangements for the Building Works.
9.As the Crane driver came down from the crane tower for his scheduled morning break, he was met by the Second Respondent who asked ‘Who is your employer?’ to which the Crane driver replied ‘Direct Skills’.
10.As the Crane crew proceeded to the Site sheds for their morning break, the Second and Third Respondents climbed the tower crane and positioned themselves in a section of the tower below the cabin. They covered access to the crane by placing a piece of plywood flat across the manhole of the tower immediately below them and standing on it.
11.As a result there was no safe means of accessing the tower crane and BLL was unable to assign the crane crew or any other workers to perform productive work on or associated with the tower crane. The Building Works were part of an important project for BLL and the tower crane activities were essential to those Building Works. The actions of the Second and Third Respondents disrupted the Building Works.
12.Shortly after the Second and Third Respondents positioned themselves up the Crane, BLL’s General Site Foreman, Lou Ranzolin (Ranzolin), saw them and asked what they were doing there. The Third Respondent replied that they had taken possession of the Crane and they wanted to speak to Peter Ward (BLL’s Operations Manager).
13.At around 10am, Ranzolin went back to the tower crane with Steven Broadhead, BLL’s Industrial Relations Manager, and Craig Peterson, BLL’s Senior General Foreman (collectively, “BLL management”) and Ranzolin asked the Second and Third Respondents to come down. The Second and Third Respondents ignored Ranzolin’s request and refused to move from their position in the tower crane.
14.During these discussions, the First Respondent, through one of its senior officials, made it known to the BLL management that the problem with the crane was that the crane crew were not employed directly by BLL or the form worker (which was Caelli Constructions), that there was a problem with the manning levels on the crane because there were three crew members when the CFMEU wanted four and that the Second and Third Respondents would not come down from the tower until they spoke with Peter Ward.
15.Prior to 11am, the Second Respondent and Peter Ward had a telephone conversation in which the Second Respondent said that he understood that it had been agreed that the crane crew would be employed by Caelli Constructions. He also told Ward that they needed to discuss manning levels for the crane crew.
16.The Second Respondent said that he was not going to come out of the crane until they fixed the issue with the crane crew and he was advised by his colleagues that there were meaningful discussions going on, on the ground.
17.The Second and Third Respondents did not come down from the Crane until after 12.30pm. On coming down from the crane, further discussions were had with respect to the crane crew. The result of those discussions was that Caelli Constructions subsequently hired the crane crew directly.
18.As a result of the conduct of the Respondents, the crane was inoperative for 3 hours. But for the conduct of the Respondents the crane crew would have been working the crane. While the crane crew were assigned other duties in those 3 hours, those duties were not of a productive nature.”
As is clear from the S.O.A.F it is acknowledged by the respondents that:
“19.The Respondents admit that by the conduct of the Second and Third Respondents on 21 May 2008, the Second and Third Respondents engaged in building industrial action that was unlawful industrial action within the meaning of section 37 of the BCII Act. It therefore follows that the Second and Third Respondents each contravened section 38 of the BCII Act.
20.The First Respondent admits that by the operation of section 69 of the BCII Act, the admitted conduct of the Second and Third Respondents is the conduct of the First Respondent and accordingly, the First Respondent admits that it has contravened section 38 of the BCII Act.”
Approach to penalty proceedings
The factors relevant to a penalty for a contravention of the BCII Act have been set out in a number of decisions of the Federal Court such that the factors which are to be considered in relation to penalty are now well established; see, eg, Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426 (“Stuart-Mahoney”) per Tracey J at [40]. The relevant considerations include:
·the nature and extent of the conduct which led to the breaches.
·the circumstances in which that relevant conduct took place.
·whether or not the breaches were deliberate.
·the nature and extent of any loss or damage sustained as a result of the breaches.
·whether there had been similar previous conduct by the respondent.
·whether the breaches were properly distinct or arose out of the one course of conduct.
·whether the party committing the breach had exhibited contrition.
·whether the party committing the breach had cooperated with the enforcement authorities.
·whether the party committing the breach had taken corrective action.
·the need for specific and general deterrence.
Decisions of the Full Court of the Federal Court make clear the task is for the Court to fix a penalty which pays appropriate regard to the circumstances in which the contraventions have occurred and the need to sustain public confidence in the statutory regime which imposes the obligations.[8]
[8] see Australian Ophthalmic Supplies Pty Limited v Mc Alary-Smith (2008) 165 FCR 560
In Stuart-Mahoney Tracey J said that:
“…The principle object of the BCII Act is “to provide an improved workplace relations framework for building work to ensure that building work is carried out fairly, efficiently and productively for the benefit of all building industry participants and for the benefit of the Australian economy as a whole” … The BCII Act aims to achieve this object through various means, including, relevantly, for present purposes:
· Promoting respect for the rule of law;
· Ensuring respect for the rights of building industry participants; and
· Ensuring that building industry participants are accountable for their unlawful conduct.[9]”
[9] see para 56
Each of the parties addressed what they contended were the relevant factors that should be considered in their submissions[10] and it is to that stage that I now turn.
[10] see paras 2-9 and 10-22 of applicants submissions filed 7 March 2011
In doing so I bear in mind the observations of Giles J in A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466 at [6]:
“… the discretion is at large. There are no mandatory statutory criteria and it is wrong to regard factors seen as relevant by one court as statutory criteria. Indeed, lists of factors can confuse an essentially straightforward task and lead to over-elaborate reasoning.”
Consideration of factors on penalty
The S.O.A.F sets out the background to and nature of the unlawful conduct (i.e. the contraventions). Many of the applicable considerations for determining the appropriate penalties for the admitted contraventions have been adequately dealt with in the S.O.A.F.
I accept the conduct whilst of limited duration (and there was no evidence of loss or damage) involved the respondents being engaged in unlawful conduct under the BCII Act.
In Stuart v Construction, Forestry, Mining and Energy Union [2010] FCAFC 65 at para 76, Besanko and Gordon JJ said:
“76.It is not in dispute that the evidence disclosed that the CFMEU had a number of previous contraventions, some involving similar conduct which was unlawful under the BCII Act and its predecessors such as s170NC of the WR Act. Again, given the views we have formed about the other appeal grounds, it is sufficient for present purposes to note that we do not accept that the trial judge’s descriptions are an accurate reflection of the CFMEU’s previous contraventions. Those contraventions (by reference to date, unlawful conduct and relevant statutory framework) will be relevant matters in the re-exercise of the sentencing discretion.”
It is important that the Court have regard to the seriousness of the contravening conduct in this case and also prior examples of contravening behaviour particularly with respect to s.38 of the BCII Act.[11]
[11] see paras 12-22 of applicant’s submissions and Exhibit A4
I accept that the respondents have co-operated and made admissions thereby relieving the applicant of the effort and expense of a hearing on liability. The co-operation of the respondents and the agreed position of the parties evidenced an understanding and acknowledgment of the unlawful conduct.[12]
[12] see paras 21-22 of respondents submissions
Specific deterrence is needed to ensure that these respondents are deterred from any future conduct of this nature. General deterrence is needed to prevent organisations and individuals from contravening this and other similar legislation. To achieve specific and general deterrence the penalties must be imposed at a meaningful level.[13]
[13] see paras 12-26 of applicant’s submissions
I accept that the nature of the conduct and the record of the respondents warrants sanction by way of penalty and balanced against this should be the short duration of the stoppage and the respondents admissions and co-operation
Agreement on penalty
In their submissions before the Court the parties indicated they had agreed on the following penalties which were summarised in submissions as follows:
“25. The agreed penalties are:
· CFMEU $30,000;
· Washington $6,000;
· Hudson $5,000.”[14]
[14] see exhibits A2 and R1
It was the position of the parties before the Court that having regard to the above mentioned matters, the details of (and admissions made regarding) the contraventions that the penalties the parties had agreed on were “within the permissible range in all the circumstances”.[15]
[15] see paras 23-27 of applicant’s submissions filed 7 March 2011 and also see paras 8-11 of respondents submissions filed 8 March 2011
The principles which should be applied by the Court with respect to an agreed penalty have been set out in a number of decisions of the Federal Court[16] are well established and were referred to by the parties in their submissions.[17] The agreed penalties range between 25-30 per cent of the maximum for the contraventions.
[16] see NW Frozen Foods Pty Ltd v ACCC (1996) 71 FLR 285, Wells v Locarno Management Pty Ltd [2008] FCA 1034, Hills v Sutton (2007) 169 IR 327, Minister for Industry Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCA FC 72 at [53]
[17] Ibid
Finally in submissions before the Court the parties tendered a minute of proposed orders[18] which they contended were within the permissible range for the admitted conduct and appropriate in all the circumstances of the case.
[18] see Exhibit A3
Conclusion
Given the matters referred to above I am prepared to accept the agreed position of the parties on penalty. Balancing the factors referred to I am satisfied that the penalties are appropriate as they are neither manifestly inadequate nor manifestly excessive but within the permissible range. Moreover, and having regard to the S.O.A.F, the conduct involved (including any previous conduct) of the respondents, and all of the matters referred to above I am satisfied the proposed orders are appropriate.
Therefore, as the Court:
a)is directed by the relevant authorities to consider what is appropriate in all the circumstances of this case;[19] and
b)in its discretion in relation to penalty is not fettered by a checklist of mandatory criteria;[20] and
c)notes the parties have filed the S.O.A.F and agreed on penalties which are within the permissible range;[21] and
d)is satisfied the agreed penalties are just and appropriate[22] and it is proper to make the orders sought;
there will be orders as set out at the beginning of these reasons for decision.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of O'Sullivan FM
Date: 8 March 2011
[19] see Construction Forestry Mining & Energy Union v Coal & Allied Operations Pty Ltd (No.2) (1999) 94 IR 231
[20] see Australian Ophthalmic Supplies Pty Limited v McAlary-Smith (2008) 165 FCR 560
[21] see Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543
[22] Ibid
Annexure A
IN THE FEDERAL MAGISTRATES COURT File number: MLG465/10
OF AUSTRALIA
FAIR WORK DIVISION
REGISTRY: MELBOURNE
SHAD HEYMAN
Applicant
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Respondent
NOEL WASHINGTON
Second Respondent
MATTHEW HUDSON
Third Respondent
ELIAS SPERNOVASILIS
Fourth Respondent
STATEMENT OF AGREED FACTS
The Applicant
The Applicant is, and was, at all material times:
1.1an Australian Building and Construction Inspector appointed pursuant to section 57(1)(a) of the Building and Construction Industry Improvement Act 2005 (Cth) (the BCII Act); and
1.2a person eligible to bring proceedings for a contravention of a civil penalty provision in the BCII Act pursuant to sub-section 49(6)(b) of the BCII Act.
The Respondent
The First Respondent is, and was, at all material times:
2 1an organisation within the meaning of that term in section 4 of the WR Act;
2.2a body corporate by reason of section 27 of Schedule 1 of the WR Act;
2.3a building association within the meaning of that term in section 4 of the BCII Act; and
2.4an industrial association within the meaning of that term in section 4 of the BCII Act.
The Second and Third Respondents were at all relevant times Vice Presidents of the First Respondent, employed by the First Respondent as organisers and acting in that capacity.
The Fourth Respondent was at all relevant times a Senior Vice President of the First Respondent, employed by the First Respondent as an organiser and acting in that capacity.
The Head Contractor – Bovis Lend Lease
Bovis Lend Lease Pty Ltd (BLL) is and was at all material times:
(a)a registered company;
(b)engaged in the business of building and construction;
(c)in the course of that business, was engaged as the head contractor to build the new Royal Children’s Hospital (the Building Works) at property situated at 52 Flemington Road, Parkville, in Victoria (the Site).
On 21 May 2008, at all relevant times:
(d)a crew of three persons, Enzo Iezzi, Petar Trupkovic and Matt Gotfried, were operating the tower crane (the crane crew);
(e)each member of the crane crew was at that time employed, and had chosen to be employed, by Direct Skills Pty Ltd under a labour hire arrangement between BLL and Direct Skills Pty Ltd;
(f)each member of the crane crew was performing, and was required to perform, work on Site in accordance with the terms and conditions prescribed in an industrial instrument that applied to their employment, being:
1) the common rule award which declared the National Building and Construction Industry Award 2000 as applying to building work across Victoria by operation of common rule (Award);
2) the 'Direct Skills Pty Ltd and the CFMEU Building Industry Enterprise Agreement 2005-2008'.
Events of 21 May 2008
Before 21 May 2008, representatives of the First Respondent held discussions with BLL management regarding employment arrangements for the crane crew on the Building Works. The Second and Third Respondents believed that BLL had agreed that the crane crew would be employed directly by Caelli Constructions.
On 21 May 2008, shortly before 9.30am, the Second and Third Respondents entered the site and proceeded to the tower crane which was the sole crane on the site at that date. They did so because they suspected that the crane crew was engaged on a daily hire basis, inconsistent with what they understood to be the agreed crane crew arrangements for the Building Works.
As the Crane driver came down from the crane tower for his scheduled morning break, he was met by the Second Respondent who asked ‘Who is your employer?’ to which the Crane driver replied ‘Direct Skills’.
10. As the Crane crew proceeded to the Site sheds for their morning break, the Second and Third Respondents climbed the tower crane and positioned themselves in a section of the tower below the cabin. They covered access to the crane by placing a piece of plywood flat across the manhole of the tower immediately below them and standing on it.
11. As a result there was no safe means of accessing the tower crane and BLL was unable to assign the crane crew or any other workers to perform productive work on or associated with the tower crane. The Building Works were part of an important project for BLL and the tower crane activities were essential to those Building Works. The actions of the Second and Third Respondents disrupted the Building Works.
12. Shortly after the Second and Third Respondents positioned themselves up the Crane, BLL’s General Site Foreman, Lou Ranzolin (Ranzolin), saw them and asked what they were doing there. The Third Respondent replied that they had taken possession of the Crane and they wanted to speak to Peter Ward (BLL’s Operations Manager).
13. At around 10am, Ranzolin went back to the tower crane with Steven Broadhead, BLL’s Industrial Relations Manager, and Craig Peterson, BLL’s Senior General Foreman (collectively, “BLL management”) and Ranzolin asked the Second and Third Respondents to come down. The Second and Third Respondents ignored Ranzolin’s request and refused to move from their position in the tower crane.
14. During these discussions, the First Respondent, through one of its senior officials, made it known to the BLL management that the problem with the crane was that the crane crew were not employed directly by BLL or the form worker (which was Caelli Constructions), that there was a problem with the manning levels on the crane because there were three crew members when the CFMEU wanted four and that the Second and Third Respondents would not come down from the tower until they spoke with Peter Ward.
15. Prior to 11am, the Second Respondent and Peter Ward had a telephone conversation in which the Second Respondent said that he understood that it had been agreed that the crane crew would be employed by Caelli Constructions. He also told Ward that they needed to discuss manning levels for the crane crew.
16. The Second Respondent said that he was not going to come out of the crane until they fixed the issue with the crane crew and he was advised by his colleagues that there were meaningful discussions going on, on the ground.
17. The Second and Third Respondents did not come down from the Crane until after 12.30pm. On coming down from the crane, further discussions were had with respect to the crane crew. The result of those discussions was that Caelli Constructions subsequently hired the crane crew directly.
18. As a result of the conduct of the Respondents, the crane was inoperative for 3 hours. But for the conduct of the Respondents the crane crew would have been working the crane. While the crane crew were assigned other duties in those 3 hours, those duties were not of a productive nature.
Admitted contraventions of section 38 BCII Act by the Respondents
19. The Respondents admit that by the conduct of the Second and Third Respondents on 21 May 2008, the Second and Third Respondents engaged in building industrial action that was unlawful industrial action within the meaning of section 37 of the BCII Act. It therefore follows that the Second and Third Respondents each contravened section 38 of the BCII Act.
20. The First Respondent admits that by the operation of section 69 of the BCII Act, the admitted conduct of the Second and Third Respondents is the conduct of the First Respondent and accordingly, the First Respondent admits that it has contravened section 38 of the BCII Act.
0
7
1