Regurgitating an ABCC press release, the Herald Sun claims “[t]he militant construction union has been fined $85,000 for delaying work on the Melbourne Metro Tunnel project, after the CFMMEU made bogus safety claims.” The delay was 4 hours and 15 minutes — but if you read the court judgment, it was the ABCC who made bogus claims.

The court rejected the ABCC’s argument that “a Union shop steward had deliberately brought about the two stoppages ‘relying on a safety pretext’. Putting aside there had been no identification of what that pretext was or might have been even in the particulars, no such allegation had been pleaded or admitted.”

Despite the hearing being adjourned to allow it to bring its submissions into line with the facts, “[l]ike a battleship in full steam, the ABCC thus appears to have had had difficulty turning” — it maintained its bogus assertion that the safety concern was raised for “nefarious purposes”.

The judge was unimpressed: “there was nothing in the facts, admitted or agreed, as could justify such an assertion.” The ABCC’s arguments were “over-egged”, “entirely implausible”, “bordering on the improper”.

And the safety concern was real — after comparing photos of the first aid room to the relevant Worksafe standards, the judge found:

The ABCC’s submissions … conspicuously … omit any reference to what the Court might make as to the validity of [the union’s] (acknowledged in the agreed statement of facts) concern about a lack of a ramp to provide access to the first aid room.

The omission stands out as of consequence once regard is had to what is revealed by three photographs of the first aid room… When what those photographs reveal is contrasted with the guidance standards set out in Worksafe Victoria’s Compliance Code First aid in the workplace … the Court is drawn to the conclusion that [the union]’s concerns about the adequacy of the first aid room may have been far from baseless and misconceived. …

I take it to be a matter of common knowledge that any major construction site can be, absent a focussed attention on safety, an inherently a dangerous place to work.

The prospect of an injury on such as site that might require a person to be conveyed by stretcher to first aid may not be ‘imminent’ but it is self-evidently foreseeable that such a circumstance may emerge.

In that regard what is shown by the photograph of the exterior of the first aid room that is in evidence is there was no ramp and that access to or from that room by anyone on a stretcher would have been impossible or at least highly problematic. I am satisfied that any HSR on a major worksite would have a reasonable basis for concern in that regard. I am satisfied that [the union’s] concern, viewed objectively, was a reasonable one. …

[A]s Freud is reported to have observed ‘sometimes a cigar is just a cigar’. Similarly, sometimes a concern about safety is no more or less than that.

So if the ABCC was dodgy and the safety concern was real, why was the union fined? Well, because of a legal technicality.

As the judge explained, “Although I proceed on the basis that there was no ‘imminent risk’, if a serious incident had occurred and as a result of that neglect access to the first aid room had proved difficult the consequences might have seen this matter play out very differently.”

In other words, the CFMMEU was fined $85,000 for pressuring an employer over a legitimate safety concern before someone needed to be stretchered into the first aid room. The Fair Work Act is a dangerous joke.