Director Of The Fair Work Building Industry Inspectorate v Construction, Forestry, Mining And Energy Union & Ors (No.2)

This decision concerned proceedings brought by the Director of the Fair Work Building Industry Inspectorate against the Construction, Forestry, Mining and Energy Union (CFMEU) and various individuals. The dispute arose from alleged actions taken on 13 and 14 February 2015 at the Barangaroo Site, which the Inspectorate contended constituted unlawful industrial action and breaches of the Fair Work Act 2009 (Cth). Specifically, the Inspectorate alleged that the respondents organised and participated in a stop-work demonstration and took steps to prevent or obstruct subcontractors from performing work at the site.

The court was required to determine whether the actions of the respondents, including arranging for employees to attend the site, positioning themselves to block entry, making threats to subcontractors and their employees, and entering the site to interfere with work preparations, amounted to unlawful obstruction or hindrance of work, or coercion of employers and employees, in contravention of the Fair Work Act. The legal issues centred on the interpretation and application of provisions relating to industrial action, right of entry, and freedom of association within the construction industry.

The court found that the evidence established that the respondents, through a series of organised actions on both 13 and 14 February 2015, engaged in conduct that was intended to and did prevent or obstruct subcontractors from performing work at the Barangaroo Site. This conduct included direct threats and intimidation directed at subcontractors and their employees, labelling employees as "scab labour," and physically positioning individuals to block site access. The court applied the principles of statutory interpretation to the relevant provisions of the Fair Work Act, concluding that the respondents' actions fell within the scope of prohibited conduct, particularly concerning the obstruction of work and coercion of employers. The court determined that the actions were not protected industrial action and constituted unlawful conduct.