Ignorance is no excuse: employer fined for directing workers to join union

A small construction company has been ordered to pay penalties totalling $20,000 as a result of it sending text messages to workers, unlawfully stating they must be union members before commencing work on a construction site.

The company’s director sent text messages to workers claiming “everyone has to have a valid union ticket” and “anyone without these will be unable to work” because he genuinely believed it was compulsory for workers on building sites to be members of the CFMEU.  The director failed to read a fact sheet from the Fair Work Ombudsman, given to him by a worker, which advised it was a matter of individual choice as to whether a worker joined a union or not.

The Fair Work Act 2009 prohibits any person (which can mean a union, an individual or an employer) knowingly or recklessly making a false or misleading representation about a person’s obligation to join a union, or engage in other industrial activity.  It is also prohibited for any person to organise or take action against another person with the intention of coercing someone to join a union, and for an employer to induce an employee or contractor to become a union member.

The director acknowledged that he had received advice after the proceeding commenced, and realised his statement about workers needing to join a union was wrong.

The Federal Court imposed a relatively lenient fine due to the reckless rather than deliberate nature of the breach and the employer’s cooperation in the proceeding.  However, the Court also acknowledged that the director had been immersed in a culture of “compulsory” union membership on some commercial construction sites and that there is a need to deter thousands of other small contractors in the industry from succumbing to the pressure of requiring workers to join a union. Ultimately the employer was fined $17,600 and the director was personally fined $2,400.

The CFMEU and one of its members are also being pursued for penalties in this case and their liability will be considered at a contested hearing early next year. 

The case serves as a reminder to all employers, and particularly those in the building and construction industry, that workers cannot legally be forced to join a union and ignorance of the law is no excuse.

If you need assistance with employment law, please contact:

Jim Rutherford
Principal
T 03 5226 8579
E jrutherford@ha.legal

or

Sonia McCabe
Senior Associate
T 03 5226 8558
E smccabe@ha.legal

This article was prepared with the assistance of Jenni Walker, Graduate Lawyer