'Early mark' proves costly for unlawful strikers

The Fair Work Building Inspectorate (the Regulator) commenced proceedings against 22 employees for engaging in unlawful industrial action while their enterprise agreements were in force contrary to the Fair Work Act 2009 (the Act). The Federal Court found in favour of the Regulator and imposed a $1,000 penalty on each employee.

Background

Hansen Yuncken and Leighton Contractors (the Joint Employers) entered into a joint venture for the construction of the new Royal Adelaide Hospital (the Worksite). The Joint Employers had in place separate enterprise agreements covering their respective employees at the Worksite.

Employees of the Joint Employers commenced work at the Worksite between 5.00am and 7.00am on the day in question. Around 8.00am, works being conducted offsite by SA Water created a decrease in water pressure at the Worksite which affected the showers, hand basins and latrines in the Amenities area and made the toilets difficult to flush. Hand basins and toilets in other areas of the Worksite were not affected.

At around 10.00am, managers of the Joint Employers met with employees in the lunch shed and provided them with an update on the water pressure issue, after which one of the employees asked the managers to leave so he could speak to the employees. While the managers were outside, the employees voted to leave the Worksite on the basis they held reasonable concerns for their health and safety due to the low water pressure in the toilets.

Even though it was apparent about that time, that some of the water pressure issues were rectified, the employees left the Worksite without authorisation and did not return for the remainder of the day.

Finding

The Federal Court found that:

the employees had contravened the Act by failing and refusing to attend work without authority from the Joint Employers. 

• by leaving the Worksite before their rostered completion time, each of the employees had failed and refused to attend work and thereby had engaged in industrial action;
• the water pressure issues did not form a reasonable concern about an imminent risk to the employees health and safety; and
• by engaging in industrial action before the expiry date of the relevant enterprise agreements;

the employees had contravened the Act by failing and refusing to attend work without authority from the Joint Employers.

The maximum penalty that may be imposed upon an individual for a contravention of the Act is $10,200. The Regulator requested that a $1,000 be imposed on each employee.

In determining the applicable penalty, the Court considered various factors including that:

•  the employees' concerns did not amount to a reasonable concern about an imminent risk to their health or safety;
• there was no loss or damage sustained as a result of the contraventions;
• there was no evidence of any previous similar conduct by any of the employees;
• the contraventions were deliberate as the employees voted to walk out;
• the employees admitted to the contraventions at an early stage of the proceedings; and
• the facts in this particular case arose from a unique set of circumstances.

A penalty of $1,000 was awarded against each employee. The employees were given 30 days in which to pay the penalties.

Lessons

The case provides a reminder that persons considering engaging in unlawful industrial action must, if they proceed, consider the consequences as sanctions are available under the Act.

If you would like to know more about this case or unlawful industrial action generally, please contact National Workplace Lawyers on +61 2 9233 3989.

National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.