The adverse action provisions under the Fair Work Act are very wide. Not only do they apply to the employee/employer relationship, but also principles and contractors. The reach of the adverse action provisions is broad as the following two cases demonstrate.

In CFMEU v State of Victoria [2013] FCA 445, the CFMEU commenced adverse action proceedings against the Victorian Government in Decmber 2012 for interlocutory relief. The CFMEU claimed that unlawful adverse action had been taken 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) which are monitored by the Construction Code Compliance Unit (CCCU). Non-compliance of the Victorian Code or Guidelines is highly likely to result in that person being excluded from tendering for and performing public building and construction work in Victoria because they had an entitlement to the benefit of a workplace instrument. The Victorian Government denied the claim but undertook at an interlocutory hearing not to make any decision to exclude Lend Lease from the project tender process until April 1 2013, or the final hearing of the CFMEU’s application.

In CFMEU v Eco Recyclers Pty Ltd & Ors [2013] FCA 24, the CFMEU made application to the Federal Court in December 2012 for interlocutory relief. The CFMEU asserted 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 Fair Work Australia and in force) with the Victorian Code. 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 an 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. The Victorian Government was also 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 called or 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” and the proper approach to the words “entitled to the benefit” is that they protect against conduct motivated by the fact that an industrial instrument or order applies to the person against whom ‘adverse action’ is taken, as well as where the motivation to engage in the ‘adverse action’ arises because of the content of the instrument or order. The Court also held that the balance of convenience was in favour of the CFMEU and that orders should be made although not the same orders as sought by the CFMEU. The orders had 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 Code or Guidelines.

On 17 May 2013, the Federal Court handed down the substantive judgments in these 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 Code and Guidelines for the Victorian Building and Construction industry. The Court held in the Eco case that McCockell took unlawful adverse action against Eco by excluding it from the demolition work because the Eco Agreement did not comply with the Code and Guidelines for the Victorian Building and Construction industry and the Victorian Government unlawfully coerced Eco and its employees to vary the agreement to make it compliant with the implementation guidelines.

As the date of this article, penalties for the contraventions had not been determined.