Case Note: Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union

A recent decision in the Federal Circuit and Family Court of Australia has seen the Construction, Forestry and Maritime Employees Union (CFMEU) penalised for a union official’s admitted adverse action against a health and safety manager.

Adverse action

Adverse action is any action taken against an employee which negatively impacts their employment, when that action is taken against the employee for having or exercising a workplace right. It is governed by the Fair Work Act 2009 (the Act).

Adverse action can also occur between prospective employers and employees, principals and contractors or from an employee to employer.

Background to the matter

Mr McCrudden admitted to making an intimidatory threat to a site health and safety manager in an effort to prevent the exercise of a workplace right to report to the Australian Building and Construction Commissioner (ABCC), which was the building regulator at the time.

In June 2021, Mr McCrudden entered the project for the purpose of inquiring into suspected contraventions of the OHS Act. At the conclusion of his visit, he recalled saying to the health and safety manager:

“You will not have much of a future if you continue talking to the ABCC. You’ll see mate, you’ll see.” ¹

There was no contention as to whether Mr McCrudden took adverse action against the health and safety manager. Further, the CFMEU admitted that by operation of section 793 of the Act the actions and conduct of Mr McCrudden were also the actions and conduct of the CFMEU. Therefore, whether the CFMEU contravened the Act was also not in contention. The Court only needed to determine the appropriate penalties.

Findings

In coming to her decision, Judge Amanda Mansini found that Mr McCrudden had made a threat that was

“a deliberate attempt to prevent the manager from exercising his workplace right (and responsibility) to make a complaint or inquiry to the then building industry regulator”.²

Ultimately, the CFMEU was penalised $33,300.00 and Mr McCrudden was penalised an additional $3,300.00. The penalties were considered necessary by Judge Mansini in deterring the parties from future breaches.

The Fair Work Ombudsman, Anna Booth, agreed with the penalties and said:

“There is no place for adverse action in any workplace in Australia. All workplace participants, including employers and employees, have the right to speak to regulators without facing threats of negative consequences, and we urge them to do so.”

Footnotes

1. Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union [2024] FedCFamC2G 235, 15. ↩

2. Ibid, 51. ↩

This article is a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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• employment law