By Charles Power
In late 2016, a union organised a campaign against a builder who was principal contractor at nine construction projects in the Brisbane metropolitan area. The campaign was designed to pressure the builder to only engage subcontractors who were approved by the union and who had entered into enterprise agreements acceptable to the union.
This conduct is ordinarily unlawful under the Fair Work Act 2009 (Cth). However, some of the alleged industrial actions were stop work meetings convened in accordance with applicable union meeting clauses in enterprise agreements.
In ABCC v CFMEU (The Nine Brisbane Sites Case) (No 3) (2018) the Court considered whether relevant clauses in the enterprise agreements could legitimise the stoppages and prevent a finding that they were unlawful industrial action.
The stop work meetings complied with these clauses, which allowed up to two meetings/activities of up to two hours each shift, either consecutively or separately, provided that certain notice was given of the meetings.
The union conceded that it was convening these meetings in order to disrupt work at the site with the intent to coerce the builder to engage particular independent contractors.
The Court rejected the submission that the union meetings were “sham meetings”, saying that the evidence before the Court did not substantiate this contention. Proper notices of meetings were given and union meetings were held.
The Court ruled that the meetings could not be “industrial action” because they were authorised or agreed to by an employer and, therefore, excluded from the FW Act prohibition. This is the case, even where the objective of the union in conducting certain union meetings or promoting certain union activities is contrary to provisions of the FW Act.
The relevant terms of the clause in the enterprise agreement authorised the meetings and they did not therefore constitute “industrial action”.