Published 29 November 2017
In a recent case, Australian Building and Construction Commissioner v Upton (The Gorgon Project Case)  FCA 847, the Federal Court has found a CFMEU official, Bradley Upton, engaged in adverse action and coercion when he threatened to write non-union members names on the back of bathroom doors “to let everyone know who you f-cking dog c-nts are”. The CFMEU was found to be knowingly concerned with these contraventions.
The Australian Building and Construction Commission (ABCC) claimed Mr Upton acted in an improper manner, committed adverse action against non-union members and intended to coerce others to engage in industrial activities when he visited a project in Western Australia.
Mr Upton attended the main crib room in one of the crib areas and addressed around 50 to 60 employees. The ABCC claimed he said words to the effect of the following:
• “The f-cking 90 dog c-nts that resigned from the union after we f-cking signed the EBA after we got the conditions we got now, this is a f-cking union site. If you don’t f-cking like it, f-ck off somewhere else. We got you these conditions, we know who you are. We’re going to put your names on the back of the toilet doors, we’re going to do standover tactics next year to let everyone know who you f-cking dog c-nts are”; and
• “If you’re not in the union, you can fuck off somewhere else. This is a f-cking union site, we have other union sites starting up next year and if you’re not in the union, you can fuck off too, you are not welcome”.
Mr Upton admitted he did say some of those words and phrases. He admitted to using profanities and contended it was common for people to swear on site. He claimed he was not aggressive and did not say he was going to write the names of people on the back of toilet doors and did not use the expression “f-cking dog c-nts” to refer to non-union workers. He claimed he did not contravene any of the provisions of the Fair Work Act as argued by the ABCC.
The Federal Court favoured the position argued by the ABCC, however did not find Mr Upton had used the phrase “standover tactics”.
Regarding the allegations of breaching the Fair Work Act, the Court found the official engaged in adverse action because his speech “had the effect, either directly or indirectly, of prejudicing non-union employees in their employment”. Further, one non-union member at the cribs said he felt intimidated and the speech caused emotional distress, evidenced by a report made to management the following day.
The Court also found Mr Upton made a threat to coerce non-union members to engage in industrial activity. By threatening to write names on the back of toilet doors and insisting the site was a union site, Mr Upton “negated choice as to whether or not a presently un-unionised employee should, or should not, join the union”.
He was also found to have acted in an improper manner as he breached the standards of conduct expected of a union official.
Further, the Court found the CFMEU was liable for the contraventions of Mr Upton because it was directly or indirectly knowingly concerned in his behavior as an official.
Key issues for employers
Whilst this case deals with the actions of a union member, there is also an important lesson for employers. This case demonstrates that employers, unions and organisations may be found liable for the actions of their employees or members either for accessorily contravening the Fair Work Act or, because of the authority of the employee or member, their actions may be considered to be conduct engaged in on behalf of the employer, union or organisation.
This case also highlights that coercion and adverse action in relation to an employee’s union status has no place in the workplace and that the Fair Work Act plays an important role in protecting the freedom of association.
This content is general in nature and provides a summary of the issues covered. It is not intended to be, nor should it be relied upon, as legal or professional advice for specific employment situations.
Olexo Workplace Law recommends that specialist legal advice should be sought about specific legal issues.