Australian Workers' Union v CBI Constructors Pty Ltd

The Australian Workers' Union (AWU) brought a claim against CBI Constructors Pty Ltd (CBI), and another party, seeking compensation and penalties for adverse action against an employee who had been an officer of the AWU. The dispute centred around the refusal by CBI to employ the individual due to his union activities, and the court was tasked with determining whether this refusal constituted an unlawful employment practice under the Fair Work Act 2009.

The court had to consider several legal issues, including whether the phrase "refuse to employ" in the Fair Work Act included situations where an employer refused to employ someone for reasons connected to their union activities, and whether the employer's justification for refusing employment, such as commercial duress by a principal company, could legally override these protections. The court also had to determine if the compensation claim could be judged by a counterfactual approach and if so, what that might entail.

In delivering the judgment, the court held that the refusal to employ the individual was unlawful as it included reasons related to his union activities, which are protected under the Act. The court found that the employer's justification based on commercial duress was not sufficient to legally override the protections afforded to union officers. The court also accepted that the compensation claim could be assessed using a counterfactual approach, which in this case meant calculating the financial loss the individual would not have suffered but for the employer's actions. The court ordered CBI to pay a pecuniary penalty for its contravention of the Act.

The court ordered that the second respondent, CBI, pay a penalty of $17,500 for its contravention of section 346 of the Fair Work Act 2009, to be paid to the first applicant, the AWU. The court dismissed the application in all other respects. This decision was made in accordance with Rule 39.32 of the Federal Court Rules 2011.