Building Cop Goes After Non-Compliant Employers

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Tuesday, August 30th, 2016
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Employers throughout the building and construction industry in Australia who discriminate against suppliers who do not have union agreements and who otherwise engage in workplace relations conduct which falls foul of the law are being pursued as the regulator for workplace relations within the building and construction sector attempts to enforce law and order on work sites throughout the country.

Following media revelations that it was considering recommending that Hutchison Builders be banned from securing work on public sector projects, Fair Work Building and Construction (FWBC) says it currently has action against seven employers who may have breached the Fair Work Act – five of which involve allegations of discrimination against contractors who did not have a union based enterprise bargaining agreement in place.

In one such case, FWBC commenced action against ADCO in July after it stopped using a crane company it had used on the projects for six years in 2012 on the basis that the company did not have an enterprise bargaining agreement (EBA) with the Construction, Forestry, Mining and Energy Union (CMFUE) in place.

The event provided a significant loss to the crane company, which was dependent upon ADCO for around one-third of its income.

In another case, action was brought against Devine Constructions after it allegedly stopped a steel fabrication company from performing work on the Double One 3 Apartments project in the Brisbane suburb of Tenerife to provide bracing and waler works despite the company having had a contract to provide the work in question.

When the fabricator’s workers turned up on site in 2013, they were allegedly turned away and told they were not allowed to do any work on site because their company did not have a union EBA.

The news comes as the regulator is considering whether or not to launch the unprecedented step of recommending that construction company Hutchinson Builders be banned from working on government projects after it admitted to breaching the Fair Work Act in the Federal Court earlier this month by refusing to work with a tiler  who did not have a union EBA in place on the Circa One project at Nundah Village in 2012.

The company was fined $25,575, but FWBC has also confirmed that it is considering whether or not to apply to Employment Minister Michaela Cash to have sanctions apply to the firm for breaching the Building Code 2013 to which all builders who work on projects which receive significant funding from the federal government must adhere.

Contractors who breach the Code may be subject to formal warnings or potentially may be banned from working on federal government projects for up to twelve months.

“FWBC is currently considering whether to formally recommend a sanction in relation to this conduct,” FWBC Director Nigel Hadgkiss confirmed to Sourceable in a written statement.

If the recommendation is made, this would represent the first time that the building regulator has recommended to the minister that action be taken against a contractor for breach of the Code.

An FWBC spokesperson told Sourceable that the regulator attempts to ensure compliance with the Building Code 2013 through education and monitoring – including through site visits, inspections and audits.

Where breaches are identified, the agency typically seeks rectification, with consideration being given to a recommendation for sanction in the event that the breaches cannot be satisfactorily rectified.

Cases Currently Before the Federal Court

According to FWBC, the following cases are currently before the Federal Court.

Harris HMC Interiors (VIC) Pty Ltd

FWBC brought action against the company, three of its employees as well as the CFMEU and one CFMEU official in September last year after the company allegedly attempted to coerce and discriminate against a subcontractor involved with the redevelopment of the Kathleen Syme Library and Community Centre in the inner northern Melbourne suburb of Carlton.

A seven day trial is scheduled to commence on September 5th.

Dig it Landscapes.

Federal Court action was commenced against the company and two of its managers in March this year after a waterproofing company was allegedly denied access to a site in Queensland because it did not have a union EBA in place.

 A directions hearing is scheduled for next month.

Forest Meiers Construction

Action was brought against the company and three of its officers after the company allegedly discriminating against a tiler who did not have an agreement with the CFMEU despite the company being a preferred bidder for the Remora Road project in Hamilton, Queensland.

The matter is listed for a hearing in late October.

Devine Construction

FWBC commenced action against Devine Constructions and two of its employees in August last year for allegedly discriminating against a steel fabrication company which did not have a CFMEU enterprise agreement.

The trial was held in June. The Court has reserved its decision.

ADCO

FWBC commenced action against the company in July over allegations it refused in 2012 to work with a crane company with whom it had been dealing for six years on the basis that the crane company did not have a union enterprise agreement.

A trial was held earlier this month. Final submissions will be heard on September 2.

J Hutchinson Pty Ltd (trading as Hutchinson Builders)

FWBC took action against the company over an action in which they paid 51 workers for normal hours worked even after they stopped work on a south Brisbane site for four hours in response to a visit from FWBC officials. Action was also taken against the union and two of its organisers for pulling the workers off the job and the workers for illegally ceasing work.

Trials have been held against the CFMEU and its organisers and against the company. The Court has reserved its decision.

This action is separate from that referred to above in which Hutchinson Builders was fined $25,000 for discriminating against a tiling firm on the basis that it did not have a union EBA.

Arteam

FWBC took action against the Melbourne based painting and decorating company, one of its employees, the CFMEU and one of its officers in May after they attempted to force a worker employed on the Tullamarine Quest Apartments site to join the CFMEU and pay union dues.

The penalty hearing in respect of the company and its employee has been scheduled for October, the hearing against the union and its official will take place next year.

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