Australian Building and Construction Commissioner v Pomare Auimatagi & Ors
Court file number: SYG1823/2015
Applicant: Australian Building and Construction Commissioner
Respondent(s): Pomare Auimatagi and the CFMEU
Date filed: 30 June 2015
Alleged breach: Adverse action
Liability hearing concluded on 9 June 2017.
Penalty hearing concluded on 28 February 2018.
The penalty decision was handed down on 8 March 2018.
The Court ordered penalties totalling $58,500. The matter is subject to appeal.
The ABCC* launched Federal Court proceedings against the CFMEU and official Pomare Auimatagi after he allegedly encouraged workers at a site in NSW to defy a safety policy which had been implemented by the site head-contractor.
The ABCC alleged as follows:
Mr Auimatagi encouraged workers at a construction site at the University of Newcastle to attend work the next day wearing shorts and a short sleeved shirt, in breach of the head contractor’s safety policy for mandatory for all workers to wear long trousers and a long sleeved shirt.
Mr Auimatagi allegedly addressed workers in the crib huts at the site “Others will tell you that you’re using long sleeves for UV protection but you should have the choice.” “…I’m suggesting that you come to work and make a stand”. He then warned the project manager “If any worker is removed from the site then the whole site will stop work and return to the crib rooms”.
The following morning a number of workers breached the site’s safety policy by attended in shorts and short sleeved shirts. In response, the project manager ordered a worker not to return to the site until he was wearing appropriate safety clothing. Up to 50 workers then downed their tools and refused to do any work on the project for the rest of the day.
- A number of workers attended the site but did not work on both the Monday and Tuesday morning.
The ABCC alleged that through the above actions, Mr Auimatagi coerced the workers and took adverse action against the head contractor because it had exercised a workplace right, and thereby contravened the Fair Work Act.
The judgment was handed down by Emmett J of the Federal Circuit Court.
Her Honour made the following findings:
John Holland had a workplace right “…namely its role and responsibility to enforce its reasonable policies introduced to workers in discharge of its duty pursuant to s 19(1) of the WHS Act, thereby enabling it to potentially avoid civil litigation or statutory prosecution” at .
John Holland had asserted its workplace right by telling the workers at all relevant times that they were required to comply with the policy.
Therefore the Mr Auimatagi had contravened s 340 by engaging in adverse action in terms of s 342(1), and contravened s 343. The Court also found that the CFMEU had also contravened these provisions.
For more information please view the document(s) attached below.