Full Federal Court upholds ABCC appeal – imposes higher penalties

Australian Building and Construction Commission

Full Federal Court upholds ABCC appeal – imposes higher penalties

The Full Federal Court today upheld the ABCC’s appeal against a July 2021 judgment in which the Australian Workers’ Union (AWU) was found to have organised a two-day strike at the OneSteel manufacturing plant in Noble Park in October 2018.

In upholding the ABCC’s appeal, the Full Court imposed higher penalties totalling $132,000, an increase of $45,000.

The original penalties were awarded after the AWU and its organiser, Craig Kelly, admitted they had organised workers to take unlawful industrial action at One Steel’s Noble Park plant in 2018. In addition, the AWU and Mr Kelly also demanded that the workers continue to be paid while striking.

The Federal Court found Mr Kelly had organised 51 employees to take unlawful industrial action across multiple shifts on 31 October and another 26 employees on 1 November 2018.

In the afternoon of 31 October, Mr Kelly told OneSteel management that unless the employees were paid for the time they had stopped work while striking they would continue taking industrial action.

The employees continued to take industrial action on 1 November and only returned to work following an order by the Fair Work Commission.

At the time of the strike, the employees were engaged in manufacturing made-to-order prefabricated components and steel reinforcing products for Victorian major construction projects.

In handing down its decision today, the Full Court said:

“In relation to the nature and seriousness of the contraventions…we consider that they were deliberate and objectively serious. The contraventions caused substantial loss and damage to OneSteel…”

In increasing the total penalties by $45,000 the Full Court said:

In our view, penalties in these amounts are appropriate in all the circumstances and are necessary to achieve the objects of specific and general deterrence.

ABCC Commissioner Stephen McBurney said:

“In this case the AWU organised for more than 50 workers to take industrial action over two days and demanded workers be paid while they were on strike.

“The decision on appeal confirms the serious nature of the contraventions and provides for an uplift in penalties.

“The cooperation, contrition and remorse of the AWU has been acknowledged in the judgments of the primary judge and Full Court. It is a strong indication of the willingness of the AWU to maintain a culture of compliance with industrial law.”

Respondent

Penalties imposed

AWU

$120,000

Craig Kelly

$12,000

Total penalties

$132,000

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