Australian Building and Construction Commissioner v Parker
Citation: [2021] FCA 704
At a glance
- Penalty
- $85,000
What happened
Steven Parker, an elected delegate of the Construction, Forestry, Maritime, Mining and Energy Union, held safety concerns about a worksite at the Melbourne Metro Tunnel Project on 11 July 2019. He believed the first aid room bed was too high, there was no ramp access, and lighting was inadequate. Parker directed approximately two groups of workers not to commence work, claiming inadequate first aid facilities and lighting. Workers remained in crib sheds for several hours before resuming work. Both Parker and the union admitted the conduct constituted unlawful industrial action under the Building and Construction Industry (Improving Productivity) Act 2016.
What was decided
The Federal Court found that Parker and the union contravened section 46 of the BCIIP Act by engaging in unlawful industrial action. Although Parker's safety concerns were genuinely held and not pretextual, the court found they did not constitute an imminent risk to health and safety as required by the statute's exclusion for legitimate safety action. Penalties were imposed: $5,000 on Parker (wholly suspended for three years conditional on no further offences), and $85,000 on the union (payable within 28 days). The union was derivatively liable through Parker's status as a workplace delegate.
What it means for employers
While genuine safety concerns are important, work stoppages initiated by union officials must be based on imminent risks to health and safety to qualify for statutory protection. Concerns about compliance shortcomings, even legitimate ones, do not justify stopping work. Unions may face substantial penalties for directing unlawful industrial action, even when underlying concerns are genuine.
What it means for employees
Although delegates have a role in raising safety concerns, stopping work based on non-imminent issues can constitute unlawful industrial action. Legitimate safety processes should be followed first. Proper training on rights and responsibilities under workplace safety law is important.
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https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2021/2021fca0704Want more cases like this?
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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 →