When a construction company agreed to include a union meeting clause in its enterprise agreements, it clearly didn’t foresee the provision being used to create mayhem on its building sites. But that’s what happened, with the stop work meetings being used by the union to pressure the company to stop using non-union contractors on its sites. And it’s all legal.
The company had agreed to a clause in the EBA which permits “up to two meetings/activities of up to two hours ………. per shift, either consecutively or separately, provided that notice is given..”. The union used these ‘meetings’ to interrupt concrete pours which caused grief to the company.
The Australian Building & Construction Commissioner (ABCC) instigated proceedings against the union, arguing there was a lack of genuineness in the meetings. It tried to persuade the federal court, both at first instance and on appeal, the real reason for the meetings was to pressure the company on its contractor policy. And if that were true, the meetings were illegal industrial action.
But the court, on both occasions, disagreed. Firstly, it said the meetings were authorised or agreed to by the employer because the employer had agreed to the EBA clause permitting union meetings. And secondly, to prove its case, the ABCC would, at the least, need to prove that each and every employee (not necessarily the union officials) had a malicious intent in attending the meetings.
So the union cleverly used the EBA clause to advance its claims without triggering the unprotected industrial action provisions of the legislation. This meant the employees were not found to have engaged in unprotected industrial action on those occasions when they attended properly authorised “union meetings” under the EBAs’ auspices. They were paid to sit around at a meeting and the company lost money from the abandoned concrete pours as well.
The lesson has to be either not to agree to such potentially damaging clauses in EBAs in the first place, or to ensure that union meetings on company time are limited both in terms of duration and frequency, and subject matter. Examples of this could include provisions that union meetings may be paid for if they relate to EBA negotiations and report backs, that they occur either side of a natural break in the work flow and are time limited.