A “Stop the China Free Trade Agreement” (CHAFTA) rally for Melbourne has been organized for 12pm Friday 28 August. It is supported by a number of building unions, including the CFMEU.
Members are advised that they are under no obligation to allow their employees to attend the rally – and should carefully consider the implications for their business of authorizing employee attendance. Master Builders understands that Fair Work Building Construction (FWBC) is likely to have a presence at the rally.
Master Builders advises head contractors to take steps to ensure their site/s remain open, by ensuring adequate alternative site and first aid supervision is in place. Members who choose not to authorize employee attendance should make it clear to such employees that they will not be paid for time spent at the rally (or any other form of industrial action) and that the action is not authorised. The communication should make it clear that employees engaging in industrial action will receive a minimum non-payment of four hours.
Members are also advised to keep records of any employee absences. Paying employees who attend the rally without consent from the employer can lead to fines for employers of up to $51,000.
There are a number of ways of avoiding this potential penalty. The first and most effective is that employees should be advised in writing that if they withdraw their labour they cannot be paid wages:
- for a minimum of four hours if they withdraw their labour for up to four hours; or
- if withdrawn for greater than four hours, the amount of time that labour is withdrawn.
Applications by employees for annual leave or an RDO
If employees apply for annual leave on 28 August it is a matter for the employer whether leave is granted. Employees cannot take annual leave without employer consent. Payment should be made if annual leave is granted on the basis of the normal annual leave entitlements of the employee. Similar considerations apply if employees seek to take a rostered day off.
If an employee calls in sick for 28 August it is advised employers request production of a medical certificate (or statutory declaration) to support an application for sick leave payment for that day.
Role of the FWBC
The taking of industrial action by various means, including unauthorised attendance at the 18 August rally, could render a body corporate such as the CFMEU (fine of $51,000 per breach) or an individual (fine of up to $10,200 per breach) liable to prosecution by the FWBC. The FWBC also has the ability to prosecute where strike pay is provided, with fines of up to $51,000 for employers or unions involved in paying or demanding strike pay and fines of up $10,200 for individuals receiving or demanding strike pay. It is also open to employers to take civil action against the CFMEU and workers to obtain compensation for damage suffered by the taking of unlawful industrial action. Legal advice about how to mount such an action should be obtained independently.
Members seeking further advice should contact the IR Department on (03) 9411 4560 and/or the FWBC on 1800 003 338.