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A decision of the Federal Court has highlighted another example of the CFMEU raising safety issues as part of a campaign forcing employers to agree to industrial relations demands.
In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] FCA 42 (7 February 2018), the court heard that the CFMEU had blockaded worksites and disrupted concrete pours as part of a campaign to force an employer into signing a union enterprise agreement. When challenged, the union alleged it had shut the site down due to safety concerns.
However, once the company had agreed to sign the union EBA, the site was never re-visited by union officials, all industrial action ceased, and the safety concerns were never followed up. These key reasons lead the Court to find that safety was not the driving concern behind the CFMEU conduct.
The Court concluded:
“A number of facts when drawn together expose the campaign being pursued for what it was and expose the fact that any concern as to safety was not driving the conduct being engaged in by the CFMEU and its members.” [at 273].
Evidence was also heard that union officials had kicked down safety railings, before demanding work stop because the site had become unsafe. One witness stated:
“I noticed another – what appeared to me – another union official come up the back way and had some handrails that he was wobbling around and kicking and throwing and eventually dropped to the ground, and so there was more safety concerns then because the handrail was missing.” [at 223].
And later:
“I think he put the hand rails – just thrown onto the – where the concrete pour was to take place and he disappeared from there.” [at 223].
Asked what the union official said, the witness stated:
“Well, it’s – it’s unsafe. You can’t be here.” [at 223].
The Court found that the union officials contravened at least four provisions of the Fair Work Act by:
Justice Flick noted that the CFMEU agreed that they had committed various offences [340], however denied many of the allegations put to them. In his findings, he resolved all allegations, determining that all remaining contentious allegations were in fact committed [341].
Denita Wawn, CEO of Master Builders Australia said, “the circumstances are a disappointing yet far too common tactic deployed by the CFMEU who do anything to get their own way and think they are above the law.”
“Safety is far too important for everyone on building sites and it is saddening to see such a crucial issue used like this,” Denita Wawn said.
(EXTRACT FROM DECISION)
272 Taken in context, it is concluded that the events as from 5 June 2014 all formed part of campaign being pursued by the CFMEU to secure the reintroduction of site allowances by putting pressure on BKH to sign the enterprise agreement it was proposing, including a term providing for the payment of a site allowance.
273 A number of facts when drawn together expose the campaign being pursued for what it was and expose the fact that any concern as to safety was not driving the conduct being engaged in by the CFMEU and its members.
274 Pulling but some of these facts together, the campaign it is respectfully concluded was evidenced by:
