Most Read Contributor in Australia, September 2016
The adverse action provisions under the Fair Work Act apply not
only to "workplace rights" of employees but also
"workplace rights" of independent contractors. The reach
of the adverse action provisions is very broad as the following two
In CFMEU v State of Victoria  FCA 445, the CFMEU
commenced adverse action proceedings in the Federal Court against
the Victorian Government in December 2012 for interlocutory relief.
The CFMEU claimed that unlawful adverse action had been taken by
the Victorian Government against Lend Lease Project Management
& Construction (Australia) Pty Ltd and its employees by
refusing, or threatening to refuse, to engage it on a project
because Lend Lease's enterprise agreement (which was approved
by the then Fair Work Australia and in force) did not comply with
the Code and Guidelines for the Victorian Building and Construction
industry issued by the Victorian Government (Victorian Code and
Guidelines). The Victorian Code and Guidelines are monitored by the
Construction Code Compliance Unit (CCCU). Non-compliance of the
Victorian Code and Guidelines by a person may result in that person
being excluded from tendering for and performing public building
and construction work in Victoria. The Victorian Government denied
the claim but undertook at the interlocutory hearing not to make
any decision to exclude Lend Lease from the project tender process
until the final hearing of the CFMEU's application.
In CFMEU v Eco Recyclers Pty Ltd & Ors  FCA
24, the CFMEU also commenced proceedings in the Federal Court in
December 2012 for interlocutory relief. The CFMEU asserted in this
case that a contractor, McCorkell Constructions Pty Ltd
(McCorkell), refused or threatened to refuse to engage or use a
sub-contractor, Eco Recyclers Pty Ltd (Eco), contrary to the
adverse action provisions of the FW Act. The conduct by McCorkell
was alleged to be motivated by the non-conformity of Eco's
enterprise agreement (which was approved by the then Fair Work
Australia and in force) with the Victorian Code and Guidelines. Eco
was informed by the CCCU that its enterprise agreement was
non-compliant with the Victorian Code and Guidelines at the time it
was seeking to be utilised as a sub-contractor to McCorkell for
demolition work on the upcoming construction project. Eco attempted
to convince the CFMEU to support a variation to the Eco Agreement
to remedy the non-compliance but was not successful. Eco then took
steps to seek to have the Eco Agreement varied to remedy the
non-compliance before the Fair Work Commission. The Court
proceedings preceded the hearing of Eco's application before
the Fair Work Commission. The Victorian Government was a named
respondent to the proceedings. The CFMEU submitted that the
Victorian Government applied pressure on McCorkell not to engage
the services of Eco. The Court held that there was a serious issue
to be tried as it was satisfied that McCorkell's refusal or
threatened refusal is, or has been, motivated by the content of the
Eco Agreement and no evidence or submission to the contrary was
made by McCorkell or the Victorian Government. The Court held that
it is not only the fact of the existence of an industrial agreement
but also the content of that agreement that may constitute a
"workplace right". The Court held that the balance of
convenience was in favour of the CFMEU and that orders should be
made with the effect of precluding McCorkell from refusing or
threatening to refuse to engage or use the services of Eco because
of any actual or perceived non-compliance of the Eco Agreement with
the Victorian Code and Guidelines.
On 17 May 2013, the Federal Court handed down substantive
judgments in the two cases. The Court held in the Lend Lease case
that the Victorian Government took unlawful adverse action against
Lend Lease when it threatened to exclude it from the tender because
the Lend Lease Agreement did not comply with the Victorian Code and
Guidelines. The Court held in the Eco case that McCorkell took
unlawful adverse action against Eco by excluding it from the
demolition work because the Eco Agreement did not comply with the
Victorian Code and Guidelines and the Victorian Government
unlawfully coerced Eco and its employees to vary the agreement to
make it compliant with the Victorian Code and Guidelines.
As at the date of this article, penalties for the contraventions
have not been determined by the Court.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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