Australian Building and Construction Commissioner v Australian Workers' Union
Citation: [2021] FCA 861
At a glance
- Penalty
- $87,000
- Employees affected
- 51
What happened
the Applicant, an officer of the Australian Workers' Union, organized workers at a OneSteel reinforcing manufacturing site to attend a 'Change the Rules' rally on 23 October 2018. Management then interviewed employees about their rally attendance. On 31 October 2018, the Applicant arranged for day-shift workers to leave work, citing employee distress about interviews. That day, the Applicant requested OneSteel pay workers in full despite the work stoppage. Industrial action continued on 1 November until a Fair Work Commission order required workers to return.
What was decided
the Applicant and the AWU admitted contraventions of s.46 of the Building and Construction Industry (Improving Productivity) Act 2016 (organizing unlawful industrial action) and s.475(2) of the Fair Work Act 2009 (requesting payment for unprotected action). The court imposed penalties: the Applicant $7,000 total ($2,700 + $2,700 + $1,600); AWU $80,000 total ($25,000 + $25,000 + $30,000). OneSteel received $90,000 compensation. The court found the conduct serious despite the Applicant's belief it was lawful.
What it means for employers
Employers should ensure management practices (such as employee interviews) do not inadvertently trigger disputes that unions may use to organize industrial action. Unlawful industrial action incurs substantial union and individual penalties. Compensation may also be payable to affected employers. However, even good-faith belief that conduct is lawful does not shield participants from penalties.
What it means for employees
Industrial action organized outside the statutory framework is unprotected and may result in non-payment under s.474 of the Fair Work Act. Union officers who request payment for unprotected action violate s.475(2). Employees caught in union-organized unlawful action risk both job consequences and non-payment of wages. The legality of action depends on statutory compliance, not on participant beliefs or union assertions.
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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 →