Under the Fair Work Act 2009 (Cth), industrial action by employees is unlawful unless it is protected. The protection is only available when several requirements are met and the purpose for the action relates to enterprise bargaining. If not protected, a work stoppage will attract liability for the employees and any union involved.

An exception is where the stoppage is based on an employee’s reasonable concern about an imminent risk to their health or safety, and the employee did not unreasonably fail to comply with a direction of their employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

The Federal Court had to consider this issue is in Fair Work Ombudsman v CFMMEU (2023). In this case, a union was being prosecuted for organising an unlawful stoppage at a construction site. The union defended the claim on the basis that the stoppage was in response to a direction by a health and safety representative to stop work because of bullying conduct by a manager.

The Court concluded that the real reason for the direction was a genuine concern relating to the booster assembly, which would create a risk to workers’ health and safety in the event of a fire.

The question was whether that concern was reasonable. The Court accepted that the risk of a fire was a hazard. The risk of a fire was small, but real. A reasonable person would also consider that in the event of a fire, there was a risk the fire would spread throughout the site. It was also reasonable to be concerned that if a fire broke out, firefighters would be impaired in their ability to extinguish the fire by the restriction of access to the booster assembly and the absence of hose reels.

However, the Court concluded that a reasonable person would not consider a serious risk to workers’ health or safety emanated from an “immediate or imminent exposure” to a hazard. Seriousness is a function of the probability that the risk will manifest and the gravity of the potential consequences for the health or safety of workers if it does manifest. In this case the Court ruled the risk was low. Therefore, the stoppage amounted to unlawful industrial action.