Case name
Australian Building and Construction Commissioner v Australian Workers Union & Ors
Known as
AWU (Noble Park)
Commonwealth Courts Portal reference and link

VID334/2019

Applicant
Australian Building and Construction Commissioner
Date filed
State/Territory
VIC
Breach(es) found
Industrial action
Status
Finalised
Date finalised
Link to liability judgment

Australian Building and Construction Commissioner V Australian Workers Union & ORS

Link to penalty judgment

Australian Building and Construction Commissioner v Australian Workers Union & ORS

Summary of court decision

The Federal Court on 28 July 2021 ordered the AWU to pay $90,000 in compensation to a Melbourne steel manufacturer and ordered penalties of $87,000 against the AWU and its organiser Craig Kelly after Mr Kelly organised a two-day strike at steel manufacturer One Steel Reinforcing’s Noble Park plant in 2018 and requested the workers be paid while striking.

The ABCC commenced proceedings against the AWU and Mr Kelly after Mr Kelly organised 51 employees to take unlawful industrial action across multiple shifts on 31 October and 26 employees on 1 November 2018.

In the afternoon of 31 October, Mr Kelly told OneSteel management that unless the employees were paid for the time they had stopped work while striking, they would continue taking industrial action.

The employees continued to take industrial action on 1 November and only returned to work following an order by the Fair Work Commission.

At the time of the strike, the employees were engaged in manufacturing made-to-order prefabricated components and steel reinforcing products for Victorian major construction projects.

As a result of the ABCC’s action, the AWU was ordered to pay One Steel $90,000 in compensation for the financial losses it suffered as a result of the unlawful industrial action. The penalty and compensation orders combined require the AWU and Mr Kelly to pay $177,000.

In handing down the decision, Justice Bromberg said:

“… each of the contraventions was calculated to exert pressure by exposing OneSteel to loss or damage.

“… the respondents unlawfully imposed substantial economic pressure on OneSteel which, of itself, requires their conduct to be characterised as objectively serious.”

In relation to Mr Kelly’s conduct, the Court said:

“... his conduct in organising the industrial action was nevertheless deliberate. I do not accept that Kelly did not appreciate that the industrial action taken on 31 October and 1 November (as distinct from that taken to attend the rally) was not unlawful.”

In relation to the AWU, the Court said:

“… further, I consider that the willingness of the AWU to acknowledge and pay substantial compensation to OneSteel further demonstrates its contrition and remorse. The Commissioner accepted that the applicant’s contrition was a consideration relevant to the assessment of penalties.

“…. That an organiser had apparent authority to organise industrial action without the express consent of senior management seems to be a troubling flaw in the AWU’s compliance regime. The AWU must therefore take responsibility for that failure and a meaningful penalty which takes into account the AWU’s capacity to pay should be imposed to help ensure that such a failure is not repeated.”

Total Penalties
Penalties awarded against Penalties awarded
AWU $80,000
Craig Kelly $7,000
Total penalties $87,000

* The AWU was also required to pay $90,000 in compensation to One Steel for losses incurred.

 
   
Historical content

AWU ordered to pay $90,000 in compensation and $87,000 in penalties following unlawful strike