November-December 2016 Industry Update

Court summary – finalised matters

Since the last issue of Industry Update, four matters have been finalised in Court. A summary is below.

CFMEU penalised $37,500 for demanding contractor sign secret deal to avoid ongoing strikes

  • The CFMEU and its former Queensland President David Hanna have been penalised a total of $37,500 in the Federal Circuit Court for threatening ongoing industrial action at a Brisbane construction site, unless a construction firm agreed to sign a secret deed with the union.
  • Judge Jarrett penalised the CFMEU $35,000 and Mr Hanna $2,500. In handing down the decision, Judge Jarrett highlighted the significant need to deter unlawful conduct by the CFMEU given its “egregious record of repeated and wilful contraventions of all manner of industrial laws”, referring to the CFMEU’s “long and sorry history of industrial disputation in which its willingness to disregard the industrial laws of this country seems to know no bounds.”
  • Commissioner Nigel Hadgkiss welcomed the decision, saying “respect for workplace laws is a vital ingredient of a productive and harmonious building and construction industry. No one is above the law.”

$69,500 in penalties for unlawful strike at gas plant

  • The Federal Court handed down penalties totalling $69,500 against 50 employees who admitted to engaging in unlawful industrial action at the Gas Conditioning Plant in Longford in February 2015.

  • Forty-three employees walked off the project at 2pm on 12 February 2015, after attending a lunchtime meeting where they were addressed by an AWU official. The following day, 48 employees failed to report to work their normal shift. The stoppages were stated to be in support of an employee who had been dismissed on 11 February 2015, during his probationary period.

  • In handing down the decision, Justice Tracey emphasised that the decision of the employees to take industrial action rather than seek to resolve the dispute via lawful means must be viewed seriously. “It is necessary to make plain that resort to unprotected industrial action should not be a knee-jerk (or other) response to incidents occurring in the workplace, especially when lawful avenues exist and are provided for in enterprise agreements,” Justice Tracey said.

Proceedings against ADCO Constructions dismissed

  • The Federal Court dismissed the ABCC’s application alleging that ADCO Constructions had refused to work with a crane company which did not have a union enterprise agreement.

  • The Court found that because the crane company was not an employer within the meaning of the Fair Work Act, ADCO did not discriminate against it.

Court decision concerning Victorian occupational health and safety act

  • On 3 November 2016, Justice Bromberg of the Federal Court ruled that, in Victoria, union officials who are invited to enter a site by a Health and Safety Representative (HSR) under s 58 of Victoria’s Occupational Health and Safety Act, are not required to hold a valid federal right of entry permit.

  • The decision was made in relation to a matter brought by the ABCC alleging that CFMEU organiser Michael Powell breached right of entry provisions at the Aquanation project in Ringwood, Victoria. The court concluded that federal right of entry laws do not apply to entries by invitation of an HSR under s 58 of the Victorian OHS legislation and dismissed the application.

  • The ABCC is appealing the decision.

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