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

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

The application was dismissed because SCC was not the employer of the relevant workers; Crane Hire Pty Ltd was. The Crane Hire arrangement had a rational business explanation, was known to employees, was reflected in corporate and employment documentation, and was not a sham. Even if SCC had been the employer, ADCO proved that the absence of an enterprise agreement covering the CFMEU was not a substantive and operative reason for removing or refusing to engage SCC. ADCO acted because it believed the CFMEU objected to SCC and that SCC's presence would cause industrial disruption, delay and commercial risk to ADCO projects. The allegations concerning Mr Kitto were also not substantiated...

Jurisdiction
Australia
Judgment Date
07 December 2016
Procedural Posture
Industrial Law Civil Remedy Proceeding Under the Fair Work Act 2009 (cth) / Final Judgment After Trial
Outcome
Originating application dismissed.
Legal Topics
['discrimination Against Employer Under S 354(1) Fair Work Act 2009 (cth)' 'reverse Onus of Proof Under S 361 Fair Work Act 2009 (cth)' 'attribution of Corporate Conduct Under S 793 Fair Work Act 2009 (cth)' 'identity of Employer in Corporate Group Labour Hire Arrangements' 'enterprise Agreements and Union Coverage' 'principal Contractor and Subcontractor Engagement']
['industrial Law' 'employment and Industrial Relations' 'corporations and Employment Arrangements'] ['discrimination Against Employer Under S 354(1) Fair Work Act 2009 (cth)' 'reverse Onus of Proof Under S 361 Fair Work Act 2009 (cth)' 'attribution of Corporate Conduct Under S 793 Fair Work Act 2009 (cth)' 'identity of Employer in Corporate Group Labour Hire Arrangements' 'enterprise Agreements and Union Coverage' 'principal Contractor and Subcontractor Engagement']

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Procedural Posture

Industrial Law Civil Remedy Proceeding Under the Fair Work Act 2009 (cth) / Final Judgment After Trial

Legal Issues

  1. 1 ['Whether Surf City Cranes Pty Ltd was an employer for the purposes of s 354(1) of the Fair Work Act 2009 (Cth).' 'Whether ADCO removed Surf City Cranes Pty Ltd from the Bond University project, refused further engagement on that project, and refused engagement on the Robina project for reasons prohibited by s 354(1) of the Fair Work Act 2009 (Cth).' 'Whether Mr Colin Kitto refused to further engage Surf City Cranes Pty Ltd for reasons prohibited by s 354(1) of the Fair Work Act 2009 (Cth).']

Ratio Decidendi

The application was dismissed because SCC was not the employer of the relevant workers; Crane Hire Pty Ltd was. The Crane Hire arrangement had a rational business explanation, was known to employees, was reflected in corporate and employment documentation, and was not a sham. Even if SCC had been the employer, ADCO proved that the absence of an enterprise agreement covering the CFMEU was not a substantive and operative reason for removing or refusing to engage SCC. ADCO acted because it believed the CFMEU objected to SCC and that SCC's presence would cause industrial disruption, delay and commercial risk to ADCO projects. The allegations concerning Mr Kitto were also not substantiated...

Court Disposition

Originating application dismissed.

Orders

  • ['The originating application filed 1 July 2015 be dismissed.' 'The Court will hear submissions as to whether costs should be ordered in respect of the interlocutory application referred to in Director, Fair Work Building Inspectorate v ADCO Constructions Pty Ltd [2016] FCA 602.']