Director, Fair Work Building Industry Inspectorate v ADCO Constructions Pty Ltd (No 2) [2016] FCA 1463

FEDERAL COURT OF AUSTRALIA

Director, Fair Work Building Industry Inspectorate v ADCO Constructions Pty Ltd (No 2) [2016] FCA 1463 File number: QUD 525 of 2015

Judge: COLLIER J

Date of judgment: 7 December 2016

Catchwords: INDUSTRIAL LAW – s 354(1) Fair Work Act 2009 (Cth) (FW Act) – principal contractor ADCO terminated engagement and cancelled further engagement of subcontractor Surf City Cranes Pty Ltd (SCC) – whether ADCO contravened s 354(1) – reversal of onus of proof – whether termination and cancellation of SCC for prohibited reason – subcontractor workers covered by non-union enterprise agreement – substantive and operative reason for termination and engagement – pressure on ADCO from union to remove SCC – prospect of union disruption to ADCO projects – ADCO under pressure to finish projects within time and budget – SCC dispensable to ADCO – SCC replaced with another subcontractor without union enterprise agreement – lack of union enterprise agreement to which workers and union were party was not substantial or operative factor in termination and cancellation – whether ADCO manager contravened s 354(1) – whether manager refused to further engage SCC – whether alleged refusal based on reasons prohibited by s 354(1) – SCC subsequently engaged on other ADCO projects INDUSTRIAL LAW – whether SCC "employer" for purposes of s 354(1) FW Act – Crane Hire Pty Ltd (Crane Hire) labour hire company in group – whether Crane Hire was "employer" of workers in group business – intention of group directors – employees aware that Crane Hire was employer – rational explanation for group business structure – business structure no sham – SCC "public face" of corporate group – corporate documentation recorded Crane Hire as employer – SCC not employer