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The CFMEU siege, vaccine mandates, and Deputy President Dean’s dissenting (anti-vax) ruling

6th October, 2021

Just over two weeks ago, the Melbourne office of the Construction, Forestry, Mining and Energy Union was under attack from dissident construction workers, anti-lockdown protestors and anti-vaxxers. It triggered a full week of violent protests on the streets of our city, in the course of which we also endured an earthquake!

Why the CFMEU? Why Melbourne? Why now?

A combination of factors led to the CFMEU and its officials being targeted by disaffected workers in this way (bearing in mind that the union office became a Tier 1 exposure site with numerous staff and their families now having contracted COVID as a result of the protest).

For the last 18 months, the union, the Victorian Government and the Master Builders Association had worked quite closely and cooperatively to take measures to keep the construction industry open. That consensus broke down as it became clearer that COVID-safe rules were not being followed on some building sites, leading the Government to connect these breaches to increasing cases of COVID infection.

The Government reacted by introducing new restrictions including the ban on crib or break rooms being used on site, and a vaccine mandate for construction workers. The CFMEU opposed those changes, mainly because they were introduced very suddenly. Then the union lost control of elements of its membership who were very unhappy with the restrictions and saw the union as complicit. These various fissures provided an opening for anti-vaxxers/anti-lockdown protesters to push their own agenda.

But the CFMEU itself is a complicated beast. The Victorian Branch under the leadership of John Setka has fostered a culture of independent-mindedness and rebellion against what they see as unjust industrial relations laws restricting strikes and union right of entry in their industry. So when it came to the new COVID restrictions aimed at ensuring safety and reduced risk of virus spread on building sites, some members no doubt defaulted to that same position of resisting authority and ‘the rules’. The industry reopened this week after a two-week closure, with those very rules in place and (so far) peacefully.

It’s also worth noting that the CFMEU nationally is a deeply divided union. Following its merger with the Maritime Union in 2018, it is now the CFMMEU. The amalgamation strengthened Setka’s position in the national organisation, opening up fault-lines which have since seen litigation over various parts of the union poaching each other’s members – and an attempt by the union’s mining division to withdraw from the CFMMEU. Remarkably, the federal Labor Opposition supported Coalition Government legislation rushed through Parliament late last year, opportunistically paving the way for easier withdrawal of disaffected groups from union mergers.

Unions and vaccination mandates

There is no question that the violent siege of the CFMEU office was carried out not only by construction workers and some members of the union, but more malign forces which have been seeding their opposition to mask-wearing, lockdowns and vaccination through union fronts. Nick Bonyhady has been writing in the Fairfax press recently about faux ‘unions’ springing up (especially in Queensland and NSW) to support challenges against vaccine mandates in the courts. Hopefully, workers will see that these are not truly representative organisations with their industrial interests at heart.

The nurses’ union and others covering front-line health workers were aghast at the construction workers protesting for the right to overwhelm the health system. Most unions now support mandatory vaccination in workplaces where this is backed by public health orders. But increasingly, they’ll be placed in the position of having to defend members who want to challenge their dismissal for refusing to be vaccinated.

Deputy President Dean opposes mandatory vaccination in alarmist terms

Then we also have the incredibly unhelpful and dangerous dissenting decision of Deputy President Dean in the Fair Work Commission last week, in a case about whether an aged care home receptionist could be dismissed for refusing to comply with a direction to have a flu vaccination. The majority members of the Full Bench upheld a first instance decision dismissing the employee’s unfair dismissal claim.[1]

The issue of COVID vaccination was not central in this case. The majority members indicated that if (as it seemed) the employee held a general anti-vaccination position, it would be impossible for her to be the subject of an order for reinstatement given the COVID vaccine mandate now in place in the aged care sector.

In a dissenting decision which seems infused with a large dose of her personal opinions, DP Dean went out of her way to minimise the harm caused (and risk posed) by COVID; questioned the science behind the effectiveness of COVID vaccinations; and questioned the legality of public health orders supporting employer vaccine mandates. All of this was calculated to mount an attack on the notion of vaccine mandates in almost any workplace setting.

It was also clearly intended to provide some kind of quasi-judicial comfort for those in the community holding ‘anti-vax’ views. Quotes from DP Dean’s decision are now appearing in memes being sent around by anti-vaxxers. It won’t be long before workers brandish it in response to employer mandates in their workplaces. It is hard to believe that the Deputy President would not have seen that coming.

[1] Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015.

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