On-site union meeting targets non-members

By Michael Selinger on May 16th, 2017

Union workers

Employers of workers who belong to a union know that in certain situations – such as investigating a suspected breach of health and safety laws – union permit-holders are allowed to enter a worksite.

For instance, a Workplace Health and Safety (WHS) permit-holder may enter your workplace during usual working hours to enquire into a breach of the WHS Act if they reasonably suspect one has occurred or is occurring. The permit-holder can also meet with workers under certain circumstances.

But in this case, an organiser met with workers for another purpose.

In the decision of Australian Building and Construction Commissioner v Moses & Ors, the Court found that a failure by a union delegate to correct the coercive and misleading statements of a union organiser was enough to justify a finding of accessorial liability for the union delegate.

This was despite the fact that there was no active or verbal encouragement or endorsement of the union organiser’s statements. Rather, it was because the union delegate knew the organiser’s statements were false and he did nothing to correct them.

What happened?

At a construction site in Gladstone, Queensland, a CFMEU organiser, Mr Moses, met with a group of Smithbridge workers who were contracted to operate the cranes onsite. During these meetings Mr Moses was accompanied by CFMEU delegate Mr Churchman, who was working for the primary contractor on the worksite.

During a routine pre-start daily meeting, Mr Moses asked the project manager if he could “speak to the boys”. Mr Moses then declared the site a CFMEU worksite and notified the Smithbridge workers that they had five minutes to consider if they would join the CFMEU.

Mr Moses informed the Smithbridge workers this was the only way they could continue their employment on the site. Mr Moses and Mr Churchman left the room for five minutes, then returned. Mr Moses then repeated his ultimatum and decided to give the employees 48 hours to consider if they would join the CFMEU.

During these conversations, Mr Churchman did not actively say anything, but did hand out CFMEU information pamphlets and stood beside Mr Moses while he made his proposals.

Did Mr Churchman aid and abet Mr Moses’s contravention?

The Court was easily satisfied that Mr Moses had engaged in conduct that breached the Fair Work Act in that his conduct and statements amounted to a threat of adverse action against the workers and also his statements were false and misleading representations. This was relatively straightforward.

However, proving that Mr Churchman had aided Mr Moses’ contraventions depended on whether Mr Churchman’s actions could be seen as a form of encouragement, despite him not actually saying any encouraging words.

The Court found that because Mr Churchman did not correct the statements of Mr Moses at any point during the meeting and had allowed Mr Moses to repeat his ultimatum, which he knew was false, the Court was able to find that Mr Churchman’s inaction constituted encouragement and therefore he had also breached the Fair Work Act.

Why is this decision significant?

This decision is very important as it extends the scope of accessorial liability previously enforced by the Court. The Court accepted that in circumstances where a person stands by silently while another makes false and coercive statements, they can be liable for accessorial liability.

It means that an individual who knows the statements are false and cannot be said to be ignorant of the intention for those statements being made, has a positive duty to correct the statements or else face the risk of penalties. Mr Churchman’s defences of claiming to not know Mr Moses’ intention and claiming to have not encouraged Mr Moses, were both categorically rejected.

Knowing your rights as an employer

Do you know when you must grant access to a union to enter your worksite? Do you know when you don’t have to?

The Health & Safety Handbook has just updated the Unions chapter, which outlines exactly when unions must be granted access and what they must do in order to gain access to your site.

Written in plain English by the health and safety lawyers at Holding Redlich, the Unions chapter is just one of 70-plus chapters in the Health & Safety Handbook that go into great detail about your legal health and safety responsibilities to your workers.

What’s more, you can test drive the handbook on an obligation-free trial to see for yourself how it can help to simplify your business.

Don’t delay, order your copy today and put the Health & Safety Handbook to work.


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