FWBC Takes Devine Constructions to Court

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Tuesday, September 8th, 2015
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FWBC takes construction company to Court for alleged discrimination, adverse action and coercion

Tier 2 Queensland Construction company, its General Manager and two of its employees are facing the Federal Circuit Court for allegedly discriminating against a steel fabrication company because it did not have a CFMEU-friendly enterprise agreement. This follows an extensive Fair Work Building & Construction investigation.

FWBC is alleging Brisbane-based Devine Constructions stopped the steel fabrication company from performing work when it had a contract to do so, and refused to engage the steel fabrication company for other work. This was after a CFMEU official allegedly told Devine Constructions not to allow the steel fabrication company to perform any work at the site because it did not have a CFMEU enterprise agreement.

“You guys aren’t allowed to do any work here,” Devine Constructions’ project manager Wayne Sengelman told two of the steel fabrication company’s workers who turned up to the site to deliver and install hold bolts. “We have your hold down bolts here. We are ready to mark out and install them,” one of the steel fabrication company’s men said to Mr Sengelman. Mr Sengelman replied: “We can take your hold bolts off but [worker’s name] is not allowed to touch them. He is not allowed to do any work here. You guys aren’t allowed to do any work here.” Mr Sengelman allegedly also said to the two workers “What are we going to do about this? They are not going to let you on site to do any work because you don’t have a union EBA”.

The steel fabrication company at that time had a contract to perform work for Devine Constructions. After the contract was signed, Mr Sengelman circulated an email to his colleagues containing an email and an attachment from the CFMEU. The attachment was titled “Signed EBA Companies As at 12 June 2013.” FWBC alleges that Mr Sengleman’s email was an instruction not to engage contractors unless they had a CFMEU enterprise agreement.

Later that year, Devine Constructions invited the steel fabrication company to tender for a second package of works on the project. A project manager at the steel fabrication company submitted a tender for the works and met with Devine Constructions’ Contracts Administrator Andrew Blore. During the meeting, Mr Blore allegedly said: “We would like you to do the job but you don’t have an EBA Agreement” and “We’ve had problems with the union on the entire job”. FWBC alleges “EBA Agreement” was understood to mean “CFMEU Enterprise Agreement”.

FWBC alleges that over a period of months, Devine Constructions received tenders from at least eight companies for the package of works. The victim steel fabrication company was only given the opportunity to submit an initial price and one revised price, whereas other entities were given the opportunity to submit an initial price plus two or three revised prices. A Devine Constructions document that referred to the eight companies that had tendered for the works allegedly had recorded next to the victim steel fabrication company’s entry: “Union recommended not to use – in the process of signing an EBA”.

FWBC alleges Devine Constructions’ General Manager Michael Tucker decided not to award the work to the victim steel fabrication company. When the victim steel fabrication company’s project manager asked whether a company needed a union agreement to work on the site, Mr Blore allegedly replied: “Yes. We do not want any problems with the union.” Mr Blore allegedly confirmed the contract had been given to a company which had a CFMEU Agreement.

FWBC Director Nigel Hadgkiss said: “Just as workers should not be discriminated against for being a member, or not being a member, of a union, contractors should not be disadvantaged if they do not have a specific kind of enterprise agreement.”

The maximum penalties available to the Court in this case are $10,200 for an individual, and $51,000 for a union per breach. FWBC is alleging Devine Constructions broke the law five times and that Mr Tucker, Mr Sengelman and Mr Blore broke the law because they were involved in Devine Construction’s conduct. A directions hearing is scheduled for Monday 12 October 2015 in the Federal Circuit Court.

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