The Federal Court has imposed total penalties of $105,000 against 75 workers after they took part in unlawful industrial action at the New Children’s Hospital project in Perth in 2013.
The workers were penalised $1,400 each after they withdrew their labour soon after work was scheduled to commence on 28 February 2013. At the time, a Fair Work Commission order was in place preventing further industrial action on the site for a period of six months.
The Court found that on the day of the strike action former CFMEU WA Assistant Secretary Joseph McDonald and former WA President Vincent Molina attended the site during a prestart meeting.
After the meeting went over the scheduled work start time, the CFMEU officials sought assurance from the head contractor that workers would not have their pay docked. The head contractor was unable to provide this assurance as the workers were employed by a subcontractor and not directly by the head contractor. The workers then withdrew their labour.
Justice Barker in his judgment said:
What the Court does in a case like this, as it did in McCullough (No 2), is send a message to individual persons, even those who have no prior contravention history of the Act, that the taking of unauthorised industrial action comes at a cost.
There is no doubt, as a number of courts have said before and I have said before, the taking of action occurs in a highly regulated environment. The Act carries with it the very strong expectation that industrial action will only occur where authorised. Unauthorised action will suffer appropriate penalties.
ABC Commissioner Stephen McBurney took the opportunity to remind workers that the agency was ready to provide assistance and educate them on how to comply with the law.
“My preference is always to educate workers about their rights and responsibilities to avoid the need for litigation.
The facts of this case have been considered by the Federal Court and the Full Federal Court. An earlier appeal by the respondents was dismissed by a unanimous Full Court decision on 22 December 2017.
At the time of these contraventions, the maximum penalty under the Fair Work Act 2009 was $10,200. The Building and Construction Industry (Improving Productivity) Act 2016 provides that a person must not organise or engage in unlawful industrial action. The maximum penalty is now $42,000 for an individual or $210,000 for bodies corporate.
This decision should serve as a timely reminder that there will be consequences for individuals who disregard the law. The ABCC will stand ready to assist any building industry participant who is the victim of unlawful industrial action.”