FEDERAL COURT OF AUSTRALIA Stuart v L.U. Simon Builders Pty Ltd [2009] FCA 107 Building and Construction Industry Improvement Act 2005 (Cth) ss 45(1)(a), 49 KAREN STUART v L.U. SIMON BUILDERS PTY LTD VID 462 of 2008 MARSHALL J 17 FEBRUARY 2009 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 462 of 2008 BETWEEN: KAREN STUART Applicant AND: L.U. SIMON BUILDERS PTY LTD Respondent JUDGE: MARSHALL J DATE OF ORDER: 17 FEBRUARY 2009 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. It is declared that by refusing to allow Mr Vanderkley and his employees entry to the Aquavista site at 401 Docklands Drive, Docklands in Victoria on 6, 9 and 22 March 2007, the Respondent contravened s 45(1)(a)(i) of the Building and Construction Industry Improvement Act 2005 (Cth), ("BCII Act")by discriminating against Mr Vanderkley on the ground that Mr Vanderkley's employees were not covered by a workplace agreement. 2. It is declared that by terminating or varying its contract with Axiom Design on 22 March 2007, so as to remove the need for Mr Vanderkley to install balustrades and handrails at the Aquavista Site, the Respondent contravened s 45(1)(a)(i) of the BCII Act by discriminating against Mr Vanderkley on the ground that Mr Vanderkley's employees were not covered by a workplace agreement. 3. Subject to paragraph 4, a penalty of $55,000 is imposed on the Respondent in respect of the contraventions of s 45(1)(a)(i) of the BCII Act, such penalty to be paid into the Consolidated Revenue Fund on or before 19 March 2009. 4. Notwithstanding the order in paragraph 3, the Respondent is not obliged to pay $27,500 (being one half of the penalty) if between 17 March 2009 and 17 March 2010 it has not been adjudged to have contravened any provision of the BCII Act or the Workplace Relations Act 1996 (Cth). Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 462 of 2008 BETWEEN: KAREN STUART Applicant AND: L.U. SIMON BUILDERS PTY LTD Respondent JUDGE: MARSHALL J DATE: 17 FEBRUARY 2009 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicant, Ms Stuart, applies pursuant to s 49 of the Building and Construction Industry Improvement Act 2005 (Cth) ("the Act") for the imposition of pecuniary penalties on the respondent, L.U. Simon Builders Pty Ltd ("L.U. Simon") for contraventions of s 45(1)(a) of the Act. 2 Ms Stuart is an inspector appointed under s 57 of the Act and is entitled to bring this proceeding under s 49(6)(b) of the Act. L.U. Simon is a constitutional corporation which operates in the building and construction industry. In 2006, L.U. Simon managed a building project at 401 Docklands Drive, Docklands ("the Aquavista site"). Factual Background 3 On or about 13 September 2006, L.U. Simon contracted with The Trustee of the McAlpin Family Trust trading as Axiom Design ("Axiom") for the supply and installation of glass balustrade and steel handrail to the level 15 mezzanine stairs at the Aquavista site. Axiom further contracted with Mr Vanderkley for him to construct and install the glazed balustrade and steel handrail. Mr Vanderkley employed Mr Grubits and Mr Conduit to perform the relevant work. 4 Mr Grubits and Mr Conduit were "building employees" for the purpose of s 4 of the Act and the work which they were to perform was "building work" for the purpose of s 5 of the Act. 5 Mr Vanderkley and Mr Grubits attended the Aquavista site on 6 March 2007 to perform the relevant work. A managerial employee of L.U. Simon, Mr Frank Akbari, told Mr Vanderkley and Mr Grubits that they could not commence work on the site without certain documents, including an enterprise bargaining agreement ("EBA"). 6 On 8 March 2007, Mr Vanderkley provided to L.U. Simon certificates of currency of public liability insurance, workcover insurance, and superannuation (CBUS) payments. 7 On 9 March 2007, Mr Vanderkley and Mr Grubits attended the Aquavista site to commence work. Mr Mark Hickey, the site foreman, told Mr Vanderkley that he still did not have an EBA. The site manager, Mr Robert Purves, told Mr Vanderkley that in order to get on to the site and perform the relevant work he had to, amongst other things, procure an EBA. 8 On 22 March 2007, Mr Vanderkley and Mr Conduit attended the site to perform the relevant work. By that date, Mr Vanderkley had provided to L. U. Simon all documents required, other than a copy of an EBA. While waiting in the induction room before being inducted onto the Aquavista site, Mr Purves asked him to come outside. Mr Purves told Mr Vanderkley that L.U. Simon did not have a contract with him and that therefore he could not be inducted onto the site. This is because L.U. Simon had terminated its contract with Axiom. Contraventions of the Act 9 L.U. Simon admits that it refused to allow Mr Vanderkley and his employees access to the Aquavista site to perform building work on the ground that the employment of Mr Grubits and Mr Conduit was not covered by a particular kind of industrial instrument, being a workplace agreement as defined by s 4 of the Act. 10 L.U. Simon further admits that the conduct referred to in the preceding paragraph constituted discrimination against Mr Vanderkley for the purpose of s 45(1) of the Act on the ground that the employment of Mr Grubits and Mr Conduit was not covered by a particular kind of industrial instrument, being a workplace agreement as defined by s 4 of the Act. 11 There are two admitted contraventions of the Act by L.U. Simon: · a breach of s 45(1)(a)(i) of the Act by refusing to allow Mr Vanderkley and his employees access to the Aquavista site to perform building work; and · a breach of s 45(1)(a)(i) of the Act by termination of the Axiom contract; on the ground that Mr Vanderkley's employees were not covered by a workplace agreement. Penalty 12 The parties consent to the Court making orders by way of declarations that the two contraventions occurred and by the imposition of an agreed penalty of $55,000, half of which is to be suspended. I am prepared to accept the agreed position of the parties on penalty having regard to the fact that both parties are represented by highly competent counsel with vast experience in industrial relations litigation. Those counsel represent parties acting at arms length who have attempted to resolve the litigation before the Court in an expeditious way. In my view the penalty is appropriate in the sense that it is in the permissible range, albeit at the higher end of that range given the prevalence of EBAs in the construction industry and the lack of prior offences by the respondent. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 17 February 2009 Counsel for the Applicant: Mr P O'Grady Solicitor for the Applicant: Blake Dawson Lawyers Counsel for the Respondent: Mr S Wood Solicitor for the Respondent: Giannakopoulos Solicitors Date of Hearing: 17 February 2009 Date of Judgment: 17 February 2009