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UNION MEMBER ACCUSED OF ORGANIZING UNLAWFUL INDUSTRIAL ACTION AGAINST THE PRINCIPAL CONTRACTOR
Australian Building and Construction Commissioner v Ingham [2020] FCA 1632 (12 November 2020)
The applicant, the Australian Building and Construction Commissioner (the Commissioner), alleges that the respondents contravened s.46 of the Building and Construction Industry Act 2016 (Cth) (the BCI Act) and s.348 of the Fair Work Act 2009 (the FW Act) by allegedly organizing and executing an unlawful industrial action against the principal contractor.
Facts:
MPG Constructions Queensland Pty Ltd (MPG) was the principal contractor in respect of the construction of a high-rise residential building. There was a verbal altercation between Benjamin Kohleis, an employee of MPG, and Christopher Stephen, the site delegate for the Union. As a result, MPG asked Mr Stephen not to return to the site until the incident had been investigated.
On the mornings of October 17, 18 and 19, 2017, Mr Desmond (who is employed by the Union as an organiser) met with workers who were members of the Union at the site. The workers refused to perform any work until Mr Stephen was reinstated. They only returned to work at about 11.30 am, after MPG indicated that Mr Stephen would be reinstated.
The Commissioner alleges that the respondents organised “unlawful industrial action” on 17, 18 and 19 October 2017 in contravention of s.46 of the BCI Act. The Commissioner also alleges that the respondents organised “industrial action” against MPG with intent to coerce MPG into reinstating Mr Stephen, in contravention of s.348 of the FW Act.
The respondents defend the allegations on the basis that, firstly, the workers’ refusal to work was not “industrial action” within s.7 of the BCI Act. The basis of this argument is that it was raining on 17 and 18 and part of 19 October 2017 and, under the provisions of the Building and Construction General On-site Award 2010 (the Award) and the custom and practice at the site, the workers were entitled to not work during inclement weather. The respondents contend, secondly, that the workers’ refusal to work was not organised by the respondents.
Issue: Did the respondent contravene s.46 of the Building and Construction Industry Act 2016 and s.348 of the Fair Work Act 2009?
Law:
Analysis:
A “failure” or “refusal” to attend or perform work within s.7(1)(c)(ii) of the BCI Act necessarily requires the existence of a legal obligation, whether contractual or statutory, to attend or perform work. It follows that if the workers were under no legal obligation to perform work at the Qube project site at the relevant times, they cannot have taken “industrial action” by refusing to perform work at those times.
In the court’s opinion, following any significant rainfall, the workers were entitled under cl.23.5 of the Award to not work, on the basis that it was unreasonable or unsafe for them to do so, until informed that the site had been cleared for the resumption of work.
The court finds that the Commissioner has not demonstrated that the workers were under any legal obligation to work at the Qube project site on 17 and 18 and on the morning of 19 October 2017. Accordingly, the Commissioner has not proved that the workers took “industrial action” within s.7(1)(c) of the BCI Act.
The court found that the Commissioner has not proved there was “industrial action”. Therefore, the allegations of contravention of s.348 of the FW Act as pleaded cannot succeed.
Firstly, the Commissioner has not contended for that position, and, secondly, because the course of the pleadings and submissions has meant that the respondents have not had an opportunity to make submissions against that position, nor any adequate opportunity to make submissions upon the merits of the alleged contraventions of s.348 of the FW Act.
Conclusion: The court finds that the Commissioner has not proved that the respondents contravened s.46 of the BCI Act or s.348 of the FW Act. 208. The proceedings must be dismissed.
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