Construction, Forestry, Mining and Energy Union v State of Victoria [2013] FCA 445

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v State of Victoria [2013] FCA 445 Citation: Construction, Forestry, Mining and Energy Union v State of Victoria [2013] FCA 445

Parties: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v STATE OF VICTORIA

File number: VID 1097 of 2012

Judge: BROMBERG J

Date of judgment: 17 May 2013

Catchwords: INDUSTRIAL LAW – s 340(1) of the Fair Work Act 2009 (Cth) – whether respondent took adverse action against employees of independent contractor because those employees had a workplace right – whether the employer of the employee's was an "independent contractor" with whom the respondent was "proposing to enter into a contract for services" within the meaning of Item 4 of s 342(1) – meaning of "independent contractor", "proposing to enter" and "contract for services" – whether respondent took adverse action by threatening to refuse to engage independent contractor or make use of its services – meaning of "refuse to engage" – meaning of "threatening to take action" in s 342(2)(a) – whether threat capable of being made in the context of an agreed process – whether prohibition imposed by s 340 may be avoided by contract, waiver or estoppel – whether adverse action taken because the employees were entitled to the benefit of an industrial instrument – meaning of "entitled to the benefit" of a workplace instrument – consideration of s 361 and onus of proof. CONSTITUTIONAL LAW – Melbourne Corporation limitation – whether ss 340-342 of Fair Work Act 2009 (Cth) exceed the Constitutional legislative capacity of the Commonwealth by imposing limitations upon the capacity of a State to select a contractor to provide major infrastructure. PRACTICE AND PROCEDURE – s 21 of the Federal Court of Australia Act 1976 (Cth) – whether declaration may be made in the absence of a justiciable controversy.