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

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

De Martin & Gasparini contravened s 340 of the Fair Work Act by threatening redundancies after employees voted against Code compliant variations to the Enterprise Agreement. The threat constituted adverse action and was taken because the employees had workplace rights under the Agreement and exercised their right to vote. The Court was not satisfied that Mr Mazzarolo and Mr Miller knowingly participated in the contravention as accessories. The CFMEU did not prove intent to coerce as required under s 54 of the Building Act, so no contravention was established on that point.

Jurisdiction
Australia
Judgment Date
01 September 2017
Procedural Posture
Civil Penalty Proceeding / Post Liability, Pre Relief Orders
Outcome
De Martin & Gasparini found liable for contravention of s 340 Fair Work Act; the Court to determine relief (penalties, declarations, injunctions) at a later hearing. Accessorial and Building Act allegations not established.
Legal Topics
['adverse Action Under Fair Work Act' 'enterprise Agreement Variation' 'coercion Under Building Act' 'content Compliance With Building Code']
['employment & Industrial Relations' 'industrial Law'] ['adverse Action Under Fair Work Act' 'enterprise Agreement Variation' 'coercion Under Building Act' 'content Compliance With Building Code']

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Procedural Posture

Civil Penalty Proceeding / Post Liability, Pre Relief Orders

Legal Issues

  1. 1 ['Whether employer took adverse action against employees under s 340 of the Fair Work Act 2009 (Cth)' 'Whether officers of employer were accessories to adverse action' 'Whether employer threatened redundancies with intent to coerce employees to approve enterprise agreement variations under s 54 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth)' 'Whether adverse action was taken because employees had, or had exercised, a workplace right']

Ratio Decidendi

De Martin & Gasparini contravened s 340 of the Fair Work Act by threatening redundancies after employees voted against Code compliant variations to the Enterprise Agreement. The threat constituted adverse action and was taken because the employees had workplace rights under the Agreement and exercised their right to vote. The Court was not satisfied that Mr Mazzarolo and Mr Miller knowingly participated in the contravention as accessories. The CFMEU did not prove intent to coerce as required under s 54 of the Building Act, so no contravention was established on that point.

Court Disposition

De Martin & Gasparini found liable for contravention of s 340 Fair Work Act; the Court to determine relief (penalties, declarations, injunctions) at a later hearing. Accessorial and Building Act allegations not established.

Orders

  • ['The parties provide the Court with short minutes of order within 14 days, including a timetable for further hearing in relation to relief and any other orders that can be agreed.']