Key Points:

Each of the workers were ordered to pay the $1,000 pecuniary penalty.

The Federal Court has held that workers' concerns over toilet pressure on a construction site is not enough of an imminent threat to safety which would justify the taking of industrial action.

The decision of Director of the Fair Work Building Industry Inspectorate v Merkx [2015] demonstrates that for employees to be able to lawfully take action in relation to concerns about health and safety in the workplace, that action must be based on a reasonable concern that there is an imminent risk to the employee's health and safety. In that case, 22 workers were each fined $1,000 for walking off the job due to health concerns, which included low water pressure in the job site's bathrooms.

Works being conducted on the job site caused a decrease in the water pressure on the site, which affected the showers and hand basins, and made the toilets difficult to flush. The workers held a meeting and collectively agreed to leave the site due to their concerns regarding the water pressure, without seeking permission from their employer and without knowing that some of the water issues had since been rectified. None of the workers attended the site for work the following day.

The Fair Work Building Industry Inspectorate brought proceedings in the Federal Court, alleging the workers engaged in unlawful industrial action in breach of the Fair Work Act 2009, by failing to attend work in accordance with their usual rostered working hours under the Enterprise Agreement.

The Court found that the workers"concerns in relation to the water pressure was not sufficient to meet the requirements of the Fair Work Act and therefore amounted to unlawful industrial action. Each of the workers were ordered to pay the $1,000 pecuniary penalty and the Court made a declaration that in refusing to attend for work, the workers had acted in breach of the Fair Work Act.