THE recent attempts mounted by two construction businesses to sue the Construction Forestry Mining and Energy Union has happened because those businesses fell through the cracks in Western Australia’s industrial relations legislation.
Industrial relations law experts and Industrial Relations Minister John Kobelke agree that the companies could be in the position that they have no other choice.
They say both companies could try to go to either the State or Federal industrial relations commission but would probably be told that those commissions do not have jurisdiction.
The Western Australian Government believes some of its changes to the industrial relations commission may help relieve some of these problems.
The two companies, Pindan and Consolidated Construction, are suing the CFMEU and its assistant secretary Joe McDonald in the District Court for not allowing them to conduct their contractual arrangements with their subcontractors and clients.
They are seeking unspecified damages.
Both companies say they have been under pressure by the CFMEU to sign an Enterprise Bargaining Agreement but say that their employment arrangements make it impossible for them to do so.
In Pindan’s case, its employees are on Australian Workplace Agreements. Consolidated has no employees on site other than its site managers and they are not eligible to be covered by a CFMEU EBA.
Both companies say they have had to take the action to ensure that they can continue their business.
Master Builders Association industrial relations manager Kim Richardson said the companies had no choice because they "fell through the cracks" in terms of industrial relations law.
Freehills industrial relations practise head Russell Allen said he put the court actions down to frustration on the part of the building companies.
"The commission, either State or Federal, has been unable to curtail Joe [McDonald] and the CFMEU," he said.
"They’re [the building companies] trying something different."
Mr Kobelke said, on his understanding of the situation, that this was likely to be the case.
He said the Government had conducted a review of the WA Industrial Relations Commission and found that some of these "cracks" could possibly be tightened up.
"But a lot of employers would be concerned if we did that. The home building industry, for example, would not like to be drawn into the commission. That would allow the unions to try and capture them," Mr Kobelke said.
"This is a very difficult part of industrial relations law.
"The Government in Queensland thought they had solved this by bringing in a new definition of what an employee was. Then there was a case involving a shearer and it was found that he was not an employee."
CFMEU lawyer Tim Kucera said the union would be defending the charges vigorously.
"It’s a push to go through the common law courts as opposed to going through the commission," he said.
