In Auimatagi v Australian Building and Construction Commissioner (2018)(1) the Full Court of the Federal Court has clarified that 'industrial action', as defined in Section 19(1) of the Fair Work Act, must be taken by an employee and not by a subcontractor's employees.
The conduct in dispute arose on a building site at Callaghan Newcastle – a site controlled by John Holland Pty Ltd – and concerned the company's two longs safety policy. As head contractor, John Holland sought to enforce the policy on all workers who were on the site (even though they were not necessarily John Holland employees).
The policy required all workers to wear long trousers and long shirts (hence the 'two longs') to protect them from "cuts, abrasion and any unprotected exposure from the sun". Everyone on site was required to follow the policy; however, there was unrest among the workers as they had to comply with the policy despite not having an opportunity to negotiate the terms with John Holland.
Mr Auimatagi was an organiser from the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). He entered the site to manage heat stress policies in the workplace. His interaction with the workers uncovered their frustrations towards their lack of consultation with John Holland about the policy. Auimatagi engaged in discussions with both John Holland representatives and workers on site to discuss possible amendments to the policy. Based on a discussion and a vote with the workers, Auimatagi discovered that 81 out of 82 workers sought to change the policy and endorsed the idea of wearing short trousers and shirts; he took this as a sign of their desire for the policy to be amended.
This ultimately led to the workers breaching the policy and being refused entry to the site.
In the initial decision, the primary judge found that Auimatagi had contravened Section 340 of the Fair Work Act by encouraging and coordinating adverse action (in the form of industrial action) against John Holland. The adverse action was alleged to have been taken for the unlawful reason that John Holland had exercised its workplace right under the Work Health and Safety Act 2011 (Cth) to enforce the policy.
The court also found that the action had been taken in order to coerce John Holland into changing the policy in breach of Section 343 of the Fair Work Act. To 'coerce' in this sense is to initiate an action for "unlawful, illegitimate or unconscionable" intent.
Subsequently, Auimatagi and the CFMMEU were ordered to pay penalties of A$7,500 and A$51,000, respectively, for encouraging industrial action in order to coerce John Holland's operations.
The CFMMEU successfully overturned the original decision on appeal to the Full Court of the Federal Court.
The Full Court found that the workers' action had not been 'industrial action', as that term is defined by Section 19 of the Fair Work Act as occurring only if there is some form of action from an employee with respect to an employer. The only qualification to this is where an employer imposes a lockout of its employees.
In this case, most of the workers on the site were employees of subcontractors and it was not alleged that any John Holland employees had refused to obey the policy.
Further, the subcontractors' employers had authorised or agreed to the workers taking the action and supported their employees in wearing short sleeve shirts.
For this reason, there was no contravention of Section 340 of the Fair Work Act, as:
- there had been no unlawful adverse action by taking industrial action for a prohibited reason; and
- Auimatagi could not have coordinated workers to take industrial action against John Holland in order to coerce John Holland.
As a result, the Full Court also found that Auimatagi had not engaged in conduct that displayed an "intent to coerce" under Section 343 of the Fair Work Act.
The Full Court highlighted instances where conduct would contravene Section 343 of the act, including:
- organising workers to seek off-site relocation;
- threatening to put a company out of business;
- obstructing access to a worksite to prevent work; and
- locking out personnel from that site.
Here it was found that Auimatagi had not been trying to engage in unconscionable conduct in order to coerce John Holland. Rather, he had been playing his role in advocating for the views and wishes of the workers on the site, which was part of his job as a union representative.
The Australian Building and Construction Commissioner (ABCC) applied for special leave to appeal the decision to the High Court.
This application, which was heard on 12 April 2019, was dismissed. The High Court refused to grant special leave as it had not been persuaded that the ABCC's argument had sufficient prospects of success.
The Full Court's decision is significant in shedding light on what constitutes 'industrial action' as defined in Section 19(1) of the Fair Work Act. Specifically, the decision establishes that industrial action can be taken only by the parties to the employment relationship (ie, an employee can take industrial action only against their direct employer). This decision also highlights that under the Fair Work Act industrial action does not capture instances where a subcontractor's employees down tools on site with the support of their direct employer.
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