Union membership a workers’ choice, rules judge

Workers’ right to choose whether they are members of a union has been upheld by a court’s decision.

A worker’s resignation from the CFMEU was a ‘substantial’ factor in Baulderstone’s decision to demote the employee, judge Nicholas Manousaridis said. Picture: Kym Smith.

Workers’ rights to choose whether or not they are members of a union have been upheld by a court’s decision to fine an employer that failed to respect this decision.

Baulderstone, the construction firm absorbed by Lend Lease this year, breached Fair Work “freedom of association’’ laws when its managers demoted an employee who had resigned from the Construction Forestry Mining and Energy Union in Canberra.

The resignation from the union was a “substantial” factor in Baulderstone’s decision to demote the employee, judge Nicholas Manousaridis said on Friday in his decision to order financial penalties.

He added that there were “aspects of Baulderstone’s contravening conduct that merit a high level of punishment”.

The case arose when the former Baulderstone safety officer quit his CFMEU membership after he was ordered to pay higher dues by ex-union official Fihi Kivalu.

Mr Kivalu, who left the union last year, was arrested and charged with blackmail last month after appearing at the trade union royal commission.

In a decision that was unrelated to those charges, Justice Manousaridis fined Baulderstone $25,000 and two of its senior managers $3500 each at the end of the long-running case, which was brought by Fair Work Building and Construction. The case is seen as a sign the FWBC will pursue employers who bow to the powerful construction union and break the law.

The court-imposed fines came despite the worker suffering no “financial loss”, as he was told to sign papers that stripped him of his safety officer title and transferred him from permanent salaried status to wages paid under a Baulderstone enterprise agreement.

Another CFMEU delegate had complained to a Baulderstone senior manager about the union resignation, which occurred in 2010.

“This complaint was a substantial and operative factor” in Baulderstone’s decision to demote the safety officer,” Justice Manousaridis said.

He rejected Baulderstone’s argument that the incident was an “aberration”.

Lendlease said: “We accept the court’s judgement on this matter which predates Baulderstone’s integration into Lendlease and is in no way indicative of Lendlease’s approach”.