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Perspective

Unlawful Behaviour from the CFMEU and the meaning of ‘Unlawful Industrial Action’ and ‘ban’ expanded

The CFMEU engaged in a campaign to persuade PJ Walsh Constructions to make an enterprise agreement with the Union. In the context of that campaign, several employees refused to perform any building work at all unless PJ Walsh Constructions agreed to enter an enterprise agreement with the Union.

These employees were engaged on a casual basis which meant they had no obligation to perform, accept or offer for work. However, the Federal Court distinguished between a failure or refusal to perform or accept or offer for building work on a particular occasion, and placing a blanket ban on the acceptance of any work until demands are met. The latter constitutes industrial action as defined in s 7(1)(b) of the Building and Construction Industry Act 2016 (BCI Act). The Federal Court held the employees conduct fell within this definition and amounted to unlawful industrial action.

The Union official was found to have organised the unlawful industrial action with the intent to coerce, or apply undue pressure to, PJ Walsh Constructions, to make an enterprise agreement with the Union.

See ABCC v CFMMEU [2020] FCA 947.

Lessons

  1. While casual employees are not obliged to accept offers of work, they are obliged to perform at least some work (given they accepted an offer of employment). It may be worth noting something to this effect in their employment agreements.
  2. Where a casual employee refuses to perform any work, this may amount to industrial action as defined in s 7 of the BCI Act. This is especially so if employees collectively refuse to perform any work – which in this case was found to constitute a ban on the performance or acceptance of building work.  This is the difference between not accepting an offer of work and creating a ban altogether.
  3. If an employee or employees have made effort to ban the performance or acceptance of building work, and their purpose for doing so is to coerce the employer to enter an enterprise agreement with the Union, it will amount to unlawful industrial action.
  4. If unlawful industrial action was organised by the Union, the Union and the relevant Union official may also be liable under the BCI Act.

Written by Nes Demir

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Heightened levels of stress around the pandemic is also a relevant factor. An April 2020 study reported 88% of the participants (US employees) faced moderate to extreme stress during the pandemic and nearly 70% faced the most stressful time of their professional career.

Paul Evans

Managing Director, Toro Digital

Psychological hazards of e-working during the pandemic is a relevant factor. The Australian Psychological Society identified these hazards as conflicts between work and family, workload and over-working, future uncertainty and isolation/loneliness.

Heightened levels of stress around the pandemic is also a relevant factor. An April 2020 study reported 88% of the participants (US employees) faced moderate to extreme stress during the pandemic and nearly 70% faced the most stressful time of their professional career. Participants noted their productivity consequently declined by at least one hour a day for 62% and at least two hours for 32%.

Unsurprisingly, there has been a marked rise in mental health related prescriptions since March 2020.

These risks can be mitigated by undertaking appropriate risk analysis for each employee, ensuring controls are instituted that mitigate those risks, ensuring regular communication between management and employees around individual circumstances, setting clear expectations including around joint goals and objectives, scheduling regular informal team gatherings, and ensuring access to support and resources.

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