The Federal Circuit Court has found that an employer and two of its managers took unlawful adverse action by changing a worker’s employment status after his resignation from the CFMEU. The Court held that the employer could not prove otherwise due to its failure to call the main decision-maker to give evidence.

When a CFMEU delegate learned that an employee had resigned from the union, he complained to the employer. In response to this complaint, the employer then asked the employee who had resigned from the union to sign both a resignation form from his current “on salary” position and a re-engagement form as a construction worker Level 5 under the union deal.

The Court found that asking the employee to sign documents to change his employment status constituted an adverse action, even though it didn’t make him worse off financially. The decision to change the employee’s employment status had been made by the NSW/ACT Operations Manager. Without the decision-maker giving evidence, the Court could not exclude the “real possibility” that the decision to take the employee off his salary contract was for reasons including, as a substantial and operative factor, that the CFMEU delegate had “expressed unhappiness” about the employee resigning from the union.

Key points for employers: 

  • When defending an adverse action claim, an employer should put forward the person who made the final decision to give evidence or otherwise provide a good reason for why this is not possible.
  • It is irrelevant to an adverse action claim that the employee is financially better off as a result of the change if that change constitutes unlawful adverse action.

A link to the decision can be found here: Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721 (10 April 2014)