Australian Building & Construction Commissioner v the Respondent (No 2)
Citation: [2019] FCA 1014
What happened
On 5 August 2016, following a fatality at another Multiplex construction site, a meeting was held at the Optus Stadium project in Perth with approximately 500 workers. the Applicant, an organiser for the CFMMEU, allegedly said words to the effect that workers should show respect for the fallen colleague by walking off the job. Around 30-50% of workers left the site. Civmec's project manager then met with remaining employees to instruct them to stay on site. the Applicant allegedly approached the project manager and said: if workers returned to site, there would be a picket line on Monday. The parties disputed the exact words used and context of the conversation.
What was decided
The court dismissed the Australian Building and Construction Commissioner's application. the Commissioner alleged contraventions of section 346(b) (adverse action) and section 348 (coercion) of the Fair Work Act. The court found that the Commissioner had not established the alleged contraventions on the balance of probabilities. the Respondents’ account—that any mention of picketing was made in response to an alleged racial slur—raised reasonable doubt about whether the conduct constituted unlawful threats to organise a picket.
What it means for employers
Building contractors should be aware that union organisers may assert they have rights to speak to workers on sites, particularly in response to workplace incidents or disputes. Context matters significantly in determining whether union conduct crosses the line into unlawful adverse action or coercion. Site managers should document conversations carefully and report concerning conduct through proper channels.
What it means for employees
Workers have rights to gather and discuss workplace concerns, including safety matters arising from fatalities on other sites. However, workers should understand that contested versions of events in industrial disputes can lead to litigation taking considerable time to resolve.
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This summary was drafted from the published decision and reviewed before publishing. It is general information, not legal advice. For your specific situation, speak to the Fair Work Ombudsman (13 13 94) or a qualified lawyer. About these summaries & corrections →