Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 2) [2017] FCA 1046

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 2) [2017] FCA 1046 File number: NSD 1143 of 2017

Judge: WIGNEY J

Date of judgment: 1 September 2017

Catchwords: INDUSTRIAL LAW – Code for the Tendering and Performance of Building Work 2016 (Cth) – building industry participants required to be compliant with Code – Code prohibits certain types of clauses in enterprise agreements – non-compliant building industry participants and their related entities unable to tender for or be awarded Commonwealth funded building work after 1 September 2017 – where Respondent had a non-compliant enterprise agreement – where Respondent sought its employees' approval to vary non-compliant agreement – where employees voted down the variations INDUSTRIAL LAW – civil penalty proceedings – adverse action – s 340 Fair Work Act 2009 (Cth) – adverse action by employer against employees – whether employer took adverse action against employees – threat to dismiss employees – injuring employees in their employment – altering the position of the employees to their prejudice –whether action authorised by or under Fair Work Act – reason for taking action – whether action taken because employees had or had exercised a workplace right – reason for action presumed by s 361 Fair Work Act 2009 (Cth) – accessorial liability of officers of employer for adverse action – where employer through officers informed employees it was considering 'major workplace change' in the form of redundancies INDUSTRIAL LAW – civil penalty proceedings – coercion – s 54 Building and Construction Industry (Improving Productivity) Act 2016 (Cth) – where s 343 Fair Work Act 2009 (Cth) does not apply – threat to take action – intent to coerce – whether employer threatened to make employees redundant with intent to coerce employees to vary building enterprise agreement – accessorial liability of officers of employer for coercion – whether officers themselves threatened to take action with intent to coerce employees to vary building enterprise agreement