Australian case highlights need to manage mental health risks on construction sites

According to New South Wales’ workplace health and safety regulator Safework NSW, Australian construction workers are six times more likely to die by suicide than an accident at work. At the same time, Australian legislative changes have made clear the duties of employers to ensure they take all reasonably practicable steps to eliminate or minimise psychosocial safety risks – which include unlawful conduct such as bullying and sexual harassment – at work.

A recent case, FWO v CFMMEU and ors (No 2) (2023), which saw the Australian federal court consider the psychosocial risks of bullying on a construction site in Queensland, highlights the emerging importance of managing psychosocial risks effectively. It also demonstrates that unions won’t hesitate to bring legal proceedings on behalf of their members if they perceive any psychosocial risks in the workplace.

Background to the case

Broad Construction Pty Limited, the principal contractor for the construction of a school in Queensland, engaged subcontractors that in turn employed construction workers on the project. In 2020, during construction, workers at the project ceased work for nine days over safety concerns, including concerns that a Broad manager based at the site might bully or intimidate workers.

Most of the subcontractors on the project had enterprise agreements with the union allowing health and safety representatives (HSRs) to direct employees to cease work without consultation in circumstances where an immediate threat to a person’s health or safety might exist.

Following a confrontation regarding an onsite safety issue where the project manager made abusive and intimidating comments towards an HSR, the manager was flagged by the HSR as a risk who needed to be removed from the site and the HSRs told Broad that work would not continue until the manager was removed. However, Broad allowed the manager to continue working and, as a result, employees were given  directions to cease work under the relevant clause of the enterprise agreement and under section 85 of the Work Health and Safety Act 2011 (Qld).

The Fair Work Ombudsman (FWO) then began proceedings against the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) for alleged contraventions of the since-repealed Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCI), with the FWO claiming employees working on the project had engaged in unlawful industrial action by failing or refusing to perform work in breach of section 46 of the BCI Act.

In the court proceedings, a central issue was whether the work stoppages in question fell within an exception to unlawful industrial action under the BCI Act because the stoppage was based on a reasonable concern of the employees about an imminent risk to their health or safety.

The court’s ruling

The court ruled there was no serious risk to the health and safety of workers at the site arising from the risk of bullying by the manager, finding that:

• the directions to cease work were given to all employees on site whereas the alleged bullying behaviour was directed substantially to HSRs only;
• no worker other than HSRs had raised any concern about alleged bullying by the manager who had limited contact with workers directly;
• the alleged bullying involved behaviour by the manager directed towards HSRs in the context of safety complaints being raised by HSRs;
• the risk of future bullying conduct by the manager could have been reduced by taking less drastic steps than issuing stop work directions.

The court also found that any risk posed by the manager’s presence on site was not so serious or imminent a risk that it was unreasonable for the HSRs to consult all subcontractors before giving the stop work directions.

Lessons for employers

While the proceedings were brought under legislation which is now repealed, the analysis and reasoning of the court is still valid when considering the powers of HSRs to direct work stoppages.

In particular, the decision provides guidance about workplace bullying on construction sites as a psychosocial safety risk and the circumstances in which it might justify work stoppages. Employers should review the terms of their enterprise agreements to check what powers HSRs have in this regard, as well as the dispute resolution procedures under those agreements.

The decision is also a timely reminder for employers to review their workplace health and safety management plans, particularly those parts dealing with management of psychosocial risks, to ensure that management and all workers have been trained to understand the standards of conduct expected of them at work.

Employers in the construction industry need to take all reasonably practicable steps to ensure that any bullying incidents which occur at the work site are resolved in the first instance before they escalate to a more serious psychosocial hazard. They also need to be aware of any psychosocial hazards within the workplace and take practical steps to educate managers to eliminate or minimise risks arising from them.

Ultimately, any psychosocial safety risks present within a construction site present a significant risk of industrial action. It is imperative that safety issues like bullying are not seen as just an issue of individual safety, but rather a broader health and safety risk for employers, particularly those who have a strong union presence within their construction sites.

Co-written by Suren Missaghi of Pinsent Masons