Each of the workers were ordered to pay the $1,000
The Federal Court has held that workers' concerns over
toilet pressure on a construction site is not enough of an imminent
threat to safety which would justify the taking of industrial
The decision of Director of the Fair Work Building Industry
Inspectorate v Merkx  demonstrates that for employees to be
able to lawfully take action in relation to concerns about health
and safety in the workplace, that action must be based on a
reasonable concern that there is an imminent risk to the
employee's health and safety. In that case, 22 workers were
each fined $1,000 for walking off the job due to health concerns,
which included low water pressure in the job site's
Works being conducted on the job site caused a decrease in the
water pressure on the site, which affected the showers and hand
basins, and made the toilets difficult to flush. The workers held a
meeting and collectively agreed to leave the site due to their
concerns regarding the water pressure, without seeking permission
from their employer and without knowing that some of the water
issues had since been rectified. None of the workers attended the
site for work the following day.
The Fair Work Building Industry Inspectorate brought proceedings
in the Federal Court, alleging the workers engaged in unlawful
industrial action in breach of the Fair Work Act 2009, by failing
to attend work in accordance with their usual rostered working
hours under the Enterprise Agreement.
The Court found that the workers"concerns in relation to
the water pressure was not sufficient to meet the requirements of
the Fair Work Act and therefore amounted to unlawful industrial
action. Each of the workers were ordered to pay the $1,000
pecuniary penalty and the Court made a declaration that in refusing
to attend for work, the workers had acted in breach of the Fair
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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