The Federal Court of Australia in Australian Building and Construction Commissioner v Australian Manufacturing Workers’ Union has found that although union organisers did not “instruct, advise or encourage” employees to refuse to work for three days, they were nevertheless “knowingly involved” in the employees’ contravention of section 417 of the Fair Work Act 2009 which prohibits industrial action during the term of an agreement.
Implications for employers
Whilst a union might not expressly “instruct, advise or encourage” employees to take unlawful industrial action, union officials may be exposed to a finding that they are knowing and willing participants in unlawful industrial action.
Where union officials are knowingly involved in employees participating in unlawful industrial action, section 550 of the Fair Work Act 2009 provides that they may be subject to the same consequences as if they had breached the relevant provisions of the Act themselves.
Two contractors had employees on the Maryvale site of Paper Australia Pty Ltd to install and commission a second-hand de-inking plant facility. At the Maryvale site there were several designated work groups each with its own health and safety representative (HSR).
On 22 March 2014, a contract worker was injured requiring stitches for his hand. There was no qualified first-aider onsite at the time. Due to safety concerns, one of the HSRs directed the employees in his designated work group to cease work and advised the other two relevant HSRs to ask their group of employees to do the same. As a result, these employees ceased work and sat in the site sheds.
On 27 March 2014, a HSR requested the assistance of the union organisers to assist in talking to the company about the safety issues.
During the lunch break on 27 March 2014, the employees attended a meeting with the union organisers in the site carpark. At the meeting a HSR stated that he had pulled the employees off site because of safety and they were going to sit there until it was fixed. The union organisers agreed to support this action as the response by the company was inadequate.
After the meeting, the employees demanded the permanent staffing of a first aid facility by a dedicated level 3 first aider. The employees then sat in the sheds and refused to work over a period of three days.
The company argued that the employees’ refusal to return to work on these days constituted unlawful industrial action. It also argued that the liability for the employee contravention should be attached to the union organisers. The respondents argued that the organisers had not instructed the employees to stop work.
Jessup J found that the employees’ action of sitting in the sheds and refusing to work on 27, 28 and 31 March 2014 amounted to industrial action under section 19 of the Fair Work Act and thus breached section 417(1) as it was taken during the life of an enterprise agreement.
While his Honour accepted the argument that the respondents did not “instruct, advise or encourage” the employees to refuse to work or sit in the sheds, he found that they were “knowing and willing participants in the project”. His Honour found that both the employees and the union officials played a part in the unlawful industrial action.
Jessup J noted that the respondents knew full well that the circumstances on site, where no work was being done, would provide them with a stronger bargaining position in negotiating with the company than proceeding normally in respect of a first aid facility and dedicated level 3 first aid officer. His Honour went on to state that the respondents “intended this to be so” and therefore were “knowingly concerned in the employees’ contraventions of section 417”. Accordingly, the respondents themselves were held to be in contravention of section 417 pursuant to section 550 of the Fair Work Act.
Australian Building and Construction Commissioner v Australian Manufacturing Workers’ Union (The Australian Paper Case)  FCA 167 (1 March 2017)