The Australian Industrial Relations Commission (AIRC) on 23 June 2009 overturned a decision of the Victorian Building Industry Disputes Panel (VBIDP) - Abigroup Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) [2009] AIRC 595.
On 23 February 2009, an unauthorised work stoppage occurred on a Monash Freeway work site in Victoria. The employer, Abigroup Contractors, considered dispute resolution procedures had not been followed and the stop work constituted a strike. In accordance with the Workplace Relations Act 1996 (WR Act), the workers were deducted four hours pay.
The CFMEU challenged the deduction arguing that the work stopped due to a serious safety concern. The matter was referred to the VBIDP as permitted under the terms of the collective agreement covering the project.
On 26 February 2009, the VBIDP decided that the actions of the union and workers were not industrially motivated but related to serious safety issues and imminent risk. Accordingly, the employer was not entitled to deduct four hours pay from each worker.
Abigroup referred the VBIDP decision to the AIRC for review.
In overturning the VBIDP decision, Commissioner Blair found that:
- the workers’ action on the Monash Freeway site related to industrial matters rather than a reasonable concern about an imminent risk to health and safety as had been held by the VBIDP
- the CFMEU failed to observe the dispute resolution procedures in the collective agreement, including the procedure for dealing with safety matters
- Abigroup must deduct four hours pay from each striking worker in accordance with the WR Act.
Using OHS to advance industrial grievances
Stopping work for an imminent OHS risk is protected by legislation. OHS should be treated seriously and not used to advance industrial grievances. OHS laws that apply to construction projects should be strictly observed.
Review of VBIDP decisions
Victorian building industry collective agreements commonly stipulate that disputes can be referred to the VBIDP for resolution. Many of these agreements allow for decisions of the VBIDP to be reviewed by the AIRC at the request of one of the parties.
If you are a party who is dissatisfied with a decision of the VBIDP you may consider applying to have the decision reviewed by the AIRC.