Membership in the CFMEU
A patcher was a member of the Construction, Forestry, Mining and Energy Union (CFMEU). He resigned from the union to protest the union’s inadequate response to the concerns he had raised about safety deficiencies on the project where the patcher and his friend had been working. The patcher’s friend sustained a leg injury.
Pressure to pay union dues
After the patcher’s resignation, the patcher’s foreman called the patcher into his office. The foreman said that he wanted to talk to the patcher about the payment of his union dues. At that time, the patcher was working on a job that paid $41/ hour a high rate of pay guaranteed because of the union’s activities, but the patcher refused to pay his union dues.
The patcher reasoned with his foreman and said that the poster in their work shed said that the construction firm was an equal opportunity worker and the construction firm did not care if the workers were union members or not. The foreman referred to the poster as mere politics at work.
The foreman then said that the patcher gets a good wage on the job because he had an EBA, thanks to the union, and so the patcher had to pay the union. And if the patcher did not want to pay the union, he can work other jobs but his pay at those jobs will suck.
The foreman also said that the patcher can refuse to pay but if he did, he would have to work at “other jobs out there. The foreman told the patcher that the pay he will get on a non-union job will be half of what he was making at the union job he was holding at that time.
The union officials of CFMEU met with the patcher a bit later and told him that if he paid his union dues, he was guaranteed another 12 months’ work but if he didn’t pay, whether he still had a job would be left to the employer. The foreman later terminated the employment of the patcher.
The application for an order of compensation
Because of those statements by the foreman, the patcher filed an application seeking payment of a pecuniary penalty and payment of compensation for the distress and coercion brought to bear on him by the foreman to engage in industrial activity and join the CFMEU, an industrial association.
The patcher claims that the words of the foreman and the officials of the CFMEU coerced and threatened him into joining the union, thus violating his right to freedom of association.
The patcher applied under s545 of the Fair Work Act 2009 (FWA) that empowers the court to make any appropriate order if it is satisfied that a person has contravened a civil remedy provision. Section 545(2)(b) gives the Court authority to make an order to compensation for the loss suffered because of a contravention of the FWA.
The seriousness of the coercion
Section 348 of the FWA prohibits any person from organising to take, or threaten or organise to take action against another person with the intent to coerce that other person to engage in industrial activity.
The boss of the patcher raised with him the issue of his not joining the union. The conversation put pressure on the patcher. Even if the foreman had told the patcher that he had explained to the union that he cannot make the patcher join the union, there was still pressure on the patcher.
The foreman kept mentioning the “EBA” which was not true. The work of the patcher was not covered by the EBA and the mention of the EBA by the foreman several times during the conversation created pressure on the patcher. The coercion was made more serious when the union said that if the patcher did not want to pay the union, then there were other jobs “out there”. Clearly, the foreman was making clear to the patcher that if he did not pay his union dues, he will be working at a job that did not pay as much as $41 hourly rate that the patcher was then receiving.
When the patcher raised the poster in the shed that guaranteed his right to decide whether to affiliate himself with the CFMEU, the foreman described the guarantee on the poster as mere politics. This statement of the foreman undermined the absolute right of the patcher to decide to join or not to join the union.
The foreman spoke for the construction firm
While the foreman’s manner of speaking may have been calm and not overtly threatening, still there was a threat made that if the patcher did not comply and pay the union dues, the patcher would suffer detriment in his employment. The foreman was just one person but he was in charge of all the employees at the construction firm’s site. The foreman was the most senior member of the construction firm at the site and the foreman’s actions were the actions of the construction firm.
Whether the patcher suffered emotional distress
The patcher claims that he suffered two types of loss because of the foreman’s and the CFMEU officials’ violation of his right to association. He was emotionally distressed after the conversation with his foreman and after the meeting with the CFMEU officials.
However, the Court found that any meeting between a worker and his supervisor can induce fear, hurt, distress and anxiety no matter what the topic of the conversation was but if there is evidence that the patcher suffered emotional distress, the Court found that a compensation in the range of $5,000-$7,000 would be appropriate.
The Court noted that the patcher came out of the meeting and asked his colleagues for a “soft swab” because his “bum was a bit sore”. The Court found that the tone used by the foreman during their conversation was dismissive. The Court agreed that the patcher felt “crushed” by the foreman’s attitude toward the patcher’s right to freedom of association.
Looking at it from another angle, the Court appreciated that the foreman was a “Goliath” that had tag-teamed with the leviathan that was the CFMEU and the patcher was a “David”. The patcher must have felt helpless. Even when he knew his rights, he was alone and he had no power to uphold his rights.
Whether the patcher suffered economic loss
The patcher claimed that hew as dismissed from his employment because he refused to succumb to the pressure of joining the CFMEU. The Court found that the patcher had called the WHS and the CFMEU hotlines to complain. There was evidence that the construction firm did not terminate the employment of the patcher because of whistle-blowing.
However, the Court refused to infer that the cause of the dismissal of the patcher was that the foreman’s threat was carried out by the construction firm. The foreman was never asked why he dismissed the patcher from his employment. And the CFMEU was not made a party to the application and they could not provide evidence if they were complicit in the termination of the patcher’s employment.
The Court could not find that the economic loss suffered by the patcher was because of the contravention of his right to association by his foreman. His economic loss was not attributed to the threat made by his foreman against his right to freedom of association. His economic loss resulted from the actions of the construction firm. The Court found that the construction firm knew what was going on but it did nothing to stop the coercion and for this, the construction firm had to pay.
The Court imposed a pecuniary penalty of $60,000 against the construction which it had to pay to the patcher and because of the emotional distress caused by the contravention of his right to freedom of association, he was also awarded compensation in the sum of $7000.
Source: Tyson v Heiko Constructions trading as Heiko Constructions Pty Ltd  FedCFamC2G 212 (5 November 2021)
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