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IR managers fined for freedom of association breach

IN an important lesson for AREEA members, a large construction company and two of its senior IR/HR managers have been fined by the Federal Circuit Court for changing an employee’s employment conditions after he resigned his union membership.

Baulderstone was fined $25,000 and its managers $3,500 each for the incident, which saw the employee asked to sign documents changing his status from a contractor and safety office to an employee under the company’s workplace agreement.

In what was described by Judge Manousaridis as ‘deliberate and concerted’, the senior managers were found to have forcibly changed the employment status of the safety officer after an on-site CFMEU delegate complained about being a non-CFMEU member.

The two senior managers were found to have told the worker he had to sign the documents because his ‘role as a safety officer and being on a salary doesn’t work out’ when he was no longer a CFMEU member.

“[The manager] concealed the purposes for which she required [the worker] to sign the documents; and she required [the worker] to sign the documents in the face of [the worker] telling her he did not understand why he was being put on wages,” Judge Manousaridis said in his decision.

His Honour noted that the Fair Work Building & Construction (FWBC) inspectorate, which was prosecuting the case, submitted that the victim ‘was vulnerable because of his shyness, limited education, and lack of understanding of why he was being required to sign the documents that were presented to him at the meeting…’

The Court said it was ‘difficult to characterise [the managers] succeeding in having [the worker] sign the documents as anything other than the exploitation of the vulnerable situation in which [the worker] found himself’.

The IR and HR managers involved in the incident, as well as their superior, are no longer employed by Baulderstone.

Implications for members

While the Fair Work Building & Construction inspectorate (and before it the ABCC) is well known for pursuing unlawful behaviours by trade unions in the construction sector, this a good example of how employers are also regularly pursued by the FWBC when they infringe on an employee’s freedom of association or other industrial rights.

It’s also important to note that whether or not such a breach of workplace laws comes at the behest of the dominant on-site union is no defence for such behaviour.

Commenting on this case, FWBC Director Nigel Hadgkiss said all building and construction industry participants had the right to choose whether or not to be a member of an industry or employer association.


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