The Australian Building and Construction Commission (ABCC) continues its active investigation and prosecution of workplace law breaches, highlighting its important role in upholding compliance. A number of recent cases pursued by the ABCC are outlined below.

ABCC takes action over unlawful picket at Adelaide site

The ABCC has filed Federal Court proceedings alleging the CFMMEU and four of its officials, together with SA company Core-Form Pty Ltd and two of its directors unlawfully picketed the $27 million East Terrace apartments building site in Adelaide.

The allegations also include sexist remarks towards a female employee. The ABCC alleges on 16 October 2019, a group of 20 to 30 people, including the four CFMMEU officials, unlawfully picketed the site, with several picketers wearing CFMMEU clothing and waving CFMMEU flags shouting ‘Pig’, ‘Dog’, ‘Wanker’, ‘Grub’ and ‘grubby-grub-grub.’

It is alleged the unlawful picket was motivated by a commercial dispute between the head contractor and Core-Form Pty Ltd in relation to work performed at the site.

In its statement of claim filed in the Federal Court, the ABCC alleges:

• The picketers harassed people seeking entry to the site, including a female employee of the head contractor, with the picketers calling her a ‘daddy’s girl’ and a ‘blonde-bimbo’.
• The female employee was unable to leave the site to get building supplies for fear of her personal safety.
• The lawyer of the head contractor had her vehicle obstructed by the picketers, who mobbed the car while she attempted to move it.
• The picketers held union branded flags and signs, while many of them shouted insults at the head contractor and its workers.
• Upon hearing the South Australian Police had been telephoned, the picketers disbanded and left the site.

The ABCC alleges the respondent’s conduct contravened section 47 of the Building and Construction Industry (Improving Productivity) Act 2016. The maximum penalty for each contravention of the BCIIP Act is $210,000 for a body corporate and $42,000 for an individual.

The ABCC is seeking personal payment orders (PPO) to be awarded against each of the CFMMEU officials. A PPO is a court order that requires the pecuniary penalty imposed on an individual respondent to be personally paid by that individual.

ABCC alleges CFMMEU officials obstruct critical West Gate Tunnel work

The ABCC has filed proceedings in the Federal Court alleging the CFMMEU and two of its officials committed 46 contraventions when they disrupted night construction work and ignored Victoria Police and WorkSafe instructions at the $6.7 billion West Gate Tunnel Project in December 2019. 

The ABCC is alleging CFMMEU officials Paul Tzimas and Ron Buckley entered the site, climbed on top of a scaffold deck in an exclusion zone and refused to leave, despite multiple requests from project management, a WorkSafe Inspector and Victoria Police.

The scaffold deck had been erected to support the installation of five,16 tonne bridge beams. A section of the West Gate Freeway had been closed from 9.30pm to 4.00am to allow the works to occur.

The ABCC alleges the unlawful action occurred over a six-hour period during night works spanning 3 and 4 December 2019.

It is also alleged, Buckley later referred to Victoria Police as being on the head contractor’s “payroll” and referred to the actions of Victoria Police as “corruption at its finest”. Tzimas and Buckley eventually left the site at 3am. As a result of the actions of the officials, none of the bridge beams were lifted or landed during the course of the scheduled night works.

The CFMMEU and its two officials are facing 46 alleged contraventions. The maximum penalty for each contravention of the Fair Work Act 2009 is $63,000 for a body corporate and $12,600 for an individual.

ABCC alleges subcontractor terminated for not having union agreement

The ABCC has filed Federal Court proceedings against Consolidated Power Projects Australia (CPP) and four staff members alleging the company banned and subsequently terminated a subcontractor because it did not have a union enterprise agreement.

In August 2019, CPP engaged the subcontractor to install high voltage electrical equipment at the Springvale Terminal Station Project in Melbourne.

The ABCC is alleging that soon afterwards CPP banned the subcontractor from the site and subsequently terminated its contract because the company did not have an enterprise agreement.

Four CPP staff have also been named as respondents including CPP’s president and three managers.

In its statement of claim, the ABCC alleges the following discussions took place:

On 14 August 2019, CPP’s regional manager told the subcontractor’s director words to the effect:

“I have some bad news. The ETU [Electrical Trades Union] have found out about us winning the Springvale Terminal Project and that we intend to use [subcontractor] as a labour resource. The ETU are unhappy that [subcontractor] will be utilised on the project.”

The ABCC also alleges four CPP managers were involved in CPP’s contraventions of the BCIIP Act.

The maximum penalty for each contravention of the BCIIP Act is $210,000 for a body corporate and $42,000 for an individual. The ABCC is also seeking compensation from CPP for the loss and damage suffered by the subcontractor.

CFMMEU and six officials hit with $201,500 in penalties over ACT entry breaches

The Federal Circuit Court in the ACT has penalised the CFMMEU $138,000 and six officials a further $63,500 following breaches of right of entry laws across three apartment project sites in Franklin, Harrison and Wright in 2013 and 2014.

Over a seven-month period CFMMEU officials: Dean Hall, Halafihi Kivalu, Johnny Lomax, Jason O’Mara, Zachary Smith and Kenneth Miller entered the various project sites while failing to show federal entry permits as required, failing to comply with occupational health and safety requirements and hindering workers on one or more of the sites and acting improperly.

Mr Hall, who was then secretary of the CFMMEU ACT, was found to have hindered a concrete pour and to have walked onto the site in Wright unaccompanied, where he also scaled scaffolding in breach of site safety rules. Mr Hall was penalised $27,000 for seven contraventions of the Fair Work Act.

Current ACT secretary, Jason O’Mara was penalised $12,000 for refusing to produce his federal entry permit at one site and failing to comply with an occupational health and safety requirement at another site.

ABCC takes action after NSW company fails to pay subcontractor for work at Parliament House Security Upgrade Project

The ABCC has filed Federal Circuit Court proceedings against NSW company N-Cap Pty Ltd alleging it failed to comply with a compliance notice requiring it to pay a subcontractor for work at the Australian Parliament House Security Upgrade project in Canberra.

The ABCC initiated an audit of N-Cap to assess its compliance with its security of payment obligations at the project in July 2019.

The subcontractor had made a payment claim to N-Cap under the Building and Construction Industry Security of Payment Act 2009 (ACT).

The ABCC’s audit alleged N-Cap had failed to comply with the Code for the Tendering and Performance of Building Work 2016 (Building Code) when it failed to make payment to its subcontractor.

Following the audit, N-Cap was provided with the opportunity to rectify the issue, however, the company declined to do so. On 12 May 2020, the ABCC issued a compliance notice to N-Cap requiring it to pay the subcontractor.

In its statement of claim the ABCC is alleging N-Cap failed to comply with the notice in contravention of section 99(7) of the Building and Construction Industry Improving Productivity Act 2016 (BCIIP Act), resulting in the ABCC commencing legal proceedings.

The maximum penalty for a contravention of section 99(7) of the BCIIP Act is $21,000 for a body corporate and $4,200 for an individual.

The ABCC is seeking a pecuniary penalty be imposed on N-Cap and an order to compel N-Cap to pay the subcontractor in full, plus interest.

These are the first court proceedings that the ABCC has initiated relating to non-compliance with security of payments laws.

ABCC alleges NSW company underpaid worker more than $230,000

The ABCC has filed proceedings in the Federal Circuit Court alleging NSW company Open Tiling Services Pty Ltd underpaid an employee more than $230,000 in wages, entitlements and superannuation.

Among the alleged contraventions, the ABCC claims Open Tiling contravened the National Employment Standards in the Fair Work Act 2009, and the terms of Open Tiling’s own enterprise agreements resulting in the employee, a Korean national, being significantly underpaid.

It is also alleged Open Tiling failed to make and keep appropriate records and failed to give pay slips to the employee when required by law. Open Tiling director Mr Jae Jung Kim is alleged to be an accessory to the contraventions committed by Open Tiling.