Non-union operator ‘forced out’ as Fair Work launches case

The building regulator is targeting firms that collude to “black ban” non-union labour.

The building regulator is targeting firms that collude to “black ban” non-union labour, launching a landmark federal court case against a top-tier employer that could undermine the construction union’s power.

In his first “anti-discrimination” case, the Fair Work Building and Construction agency’s director Nigel Hadgkiss is taking Adco Constructions to court over the company’s alleged refusal to work with a contractor that did not have an enterprise bargaining agreement with the Construction Forestry Mining and Energy Union.

The Adco matter is part of a ­series of cases launched to curtail the CFMEU by the agency.

Adco had used the contract crane company in question on worksites for about six years until 2012, when it began removing the company from its worksites.

Initially, an Adco foreman ­allegedly told a crane operator: “The unions are here, close down the crane and just go have lunch or a smoko break.”

Then, over the next year, Adco gradually stopped using the crane contractor on its worksites in Robina and Benowa in Queensland, preferring to use contractors with union EBAs instead.

It is illegal to discriminate against an employer on the grounds its employees are covered by any type of workplace instrument, under the Fair Work Act’s section 354. However, the FWBC said it had evidence, collected using special “compulsory examination powers”, that Adco suggested the contractor sign an EBA with the union.

In a telephone call between Adco and the contractor in October 2012, an Adco manager said: “We can’t tell you to get an EBA, but we have strongly been urged to use nominated contractors or someone with a bona fide EBA.”

The call allegedly came hours after a visit from a union official.

And the crane company’s ­director’s wife was told “it would be advisable for you to get a union EBA and we can re-engage you”.

The union also threatened industrial action if the company continued to use the contractor, including at a meeting between Adco and “a union delegate ... who told him that if the union saw the company’s cranes on site they would shut the project down”, the FWBC alleged. Contracts with Adco had previously contributed a third of the crane company’s income, the FWBC will tell the court, with the loss of the business worth up to $780,000.

Mr Hadgkiss yesterday stressed the importance of using the special examination powers, which mean he can compel witnesses to give evidence, in investigating the matter.

The FWBC was set to lose the powers, which have been criticised by unions as allowing the regulator to “interrogate” their officials, under changes to the regulator foreshadowed in 2013. However, parliament extended the powers in May.

Mr Hadgkiss said: “Compulsory examination powers were critical to investigating this matter to find out the truth so that it could be put before the court … Companies who break the law (are) in FWBC’s sights.”

The maximum fine is $10,200 for an individual and $51,000 for a company for every Fair Work Act breach. Adco did not return calls last night.