Federal Court determines CFMMEU breached Act as fire equipment not an immediate risk

Federal Court determines CFMMEU breached Act as fire equipment not an immediate risk

Federal Court determines CFMMEU breached Act as fire equipment not an immediate risk

The Federal Court has ruled against the CFMEUU and two of its officials, finding that they organised employees to take industrial action on a building site and coerced the principal contractor not to allocate particular duties or responsibilities to one of their employees.

The matter arose during the college construction in Dutton Park by Broad Construction Pty Ltd (Broad) involving two CFMMEU officials, organiser Andrew Blakeney and site delegate Dean Mattas, in mid-2020. Mr Mattas claimed to be appointed as a ‘site-wide HSR ‘, while Blakeney attended safety meetings when potential stoppages were discussed.

During July and August 2020, a number of subcontractor employees ceased working on the project. The first stoppages on 21 and 22 July were linked to concerns about the operation of a fire hydrant, and the subsequent stoppages commencing on 27 July for seven days were linked to concerns the Broad project manager ‘PM’, might bully or intimidate workers.

The initial stoppage arose after claims the available fire equipment was insufficient to deal with any fire on-site. In evidence before Justice Darryl Rangiah, various reasons were suggested as to why there were concerns with the fire hydrant, including access being blocked, low water pressure, and the absence of hose reels.

Nevertheless, it was accepted that Mr Mattas, as site delegate, and the Health and Safety Representatives (HSRs) directed the workers to cease work. Several of the subcontractors have EBAs with identical clauses that allow HSRs to direct that employees cease work without consultation in some circumstances where there was an immediate threat to the health and safety of workers, with similar provisions contained with s85 of the WHSQ Act.

They also informed Broad over the ensuing days that PM was a bully and needed to be removed from the site as he posed a ‘psycho-social hazard’ to the workers, the majority of whom refused to work on days he attended the site.

Justice Rangiah determined that there was a low probability of a fire occurring, that restrictions on access did not make the situation any worse, and therefore concluded that exposure to the hazard did not create a ‘serious risk’ to workers’ health or safety.

He also determined that while PM’s conduct was “aggressive, abusive and intimidating”, he did not believe that it posed a ‘serious risk’ of injury to the psychological health of the employees on-site, particularly as the bullying behaviour was very substantially directed towards the HSRs and not the employees themselves.

With regard to Mr Mattas, Justice Rangiah determined that he was not validly appointed to represent a number of the contractors and, therefore, was not qualified to issue directions to cease work pursuant to s 85(1) of the WHSQ Act.

In determining the employees engaged in ‘industrial action’, Judge Rangiah noted that the supposed risks to health did not meet the EBA requirements of being ‘immediate’, nor was there sufficient consultation, as required, with relevant employers before directions to cease work were given.

While finding that Mr Mattas breached the provisions of the BCI Act by organising the stoppages, he noted, “I have found that Mr Blakeney did not organise the stoppages and was not knowingly involved in their organisation”. However, he determined that Mr Blakeney took action against Broad by making an illegitimate threat that workers would not return to the site unless PM was removed from particular duties or responsibilities, constituting a breach of s52 of the BCI Act.

The matter will be relisted for further hearing to determine the appropriate relief.

Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2023] FCA 1302 (fedcourt.gov.au)

For questions about unions, industrial action, health and safety, other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

Ref: 398.1123

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