CFMEU v McConnell Dowell Constructors (Aust) Pty Ltd

Case [2014] FCCA 594


FEDERAL CIRCUIT COURT OF AUSTRALIA

CFMEU & ANOR v MCCONNELL DOWELL CONSTRUCTORS (AUST) PTY LTD [2014] FCCA 594

Catchwords:
INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – workplace right – contravention of workplace right – adverse action – injury in employment – alleged underpayments of entitlements – action not because of a proscribed reason – application dismissed.

INDUSTRIAL LAW – Construction of Enterprise Bargaining Agreement – principles for construction of industrial instrument.

INDUSTRIAL LAW – Stand down of workforce pursuant to s.524 Fair Work Act 2009 (Cth) – offer of continued stand down or alternatively termination – each with attendant entitlements – whether or not adverse action.

COERCION – Offer of election to continue stand down or leave without pay or accept termination – offer of lawfully open alternatives not coercion.

Legislation:

Fair Work Act 2009 (Cth), ss.340, 341, 342, 343, 360, 524, 540

Amcor Limited v Construction, Forestry, Mining and Energy Union; Minister for Employment and Workplace Relations v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241
Australian Meat Industry Employees' Union v Belandra Pty Ltd (2003) 126 IR 165
Australian Workers' Union v BHP Iron-Ore Pty Ltd (2000) 106 FCR 482
Blair v Australian Motor Industries Ltd (1982) 61 FLR 283
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Byrne v Australian Ophthalmic Supplies Pty Ltd (2008) 169 IR 236
City of Wanneroo v Australian Municipal, Administrative, Clerical And Services Union (2006) 153 IR 426
Employment Advocate v National Union of Workers (2000) 100 FCR 454
General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605
Jones v Queensland Tertiary Admissions Centre Ltd (No.2) (2010) 186 FCR 22
Kucks v CSR Ltd (1996) 66 IR 182
Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd [2010] FCA 770
Lustre Hosiery Ltd v York (1935) 54 CLR 134
Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34
McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111
National Tertiary Education Industry Union v Commonwealth of Australia (2002) 117 FCR 114
National Union of Workers v Qenos Pty Ltd (2001) 108 FCR 90
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No.3) (1998) 195 CLR 1
Pearce v WD Peacock & Co Ltd (1917) 23 CLR 199
Rojas v Esselte Australia Pty Limited (No.2) (2008) 177 IR 306
First Applicant: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Second Applicant: JOHN WINTERS
Respondent: MCCONNELL DOWELL CONSTRUCTORS (AUST) PTY LTD
File Number: BRG 642 of 2012
Judgment of: Judge Burnett
Hearing dates: 29, 30, 31 May 2013
Date of Last Submission: 31 May 2013
Delivered at: Brisbane
Delivered on: 27 March 2014

REPRESENTATION

Counsel for the Applicants: Mr C. Dowling
Solicitors for the Applicants: Hall Payne Lawyers
Counsel for the Respondent: Mr A. Herbert
Solicitors for the Respondent: Franklin Athanasellis Cullen

ORDERS

  1. The application filed on 16 July 2012 be dismissed.

FEDERAL CIRCUIT COURT

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AGLC
CFMEU v McConnell Dowell Constructors (Aust) Pty Ltd [2014] FCCA 594
Case
[2014] FCCA 594
Decision Date

CaseChat Overview and Summary

The Federal Court of Australia, constituted by Judge Burnett, considered a dispute between the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and McConnell Dowell Constructors (Aust) Pty Ltd. The CFMEU alleged that McConnell Dowell engaged in adverse action against its employees by offering them a choice between continuing to be stood down without pay or accepting termination of their employment, each option with attendant entitlements. The union contended that this action was taken because of the employees' alleged exercise of a workplace right, specifically concerning underpayments of entitlements.

The central legal issues before the Court were whether McConnell Dowell's actions constituted adverse action under the *Fair Work Act 2009* (Cth) and, if so, whether the reason for those actions was a proscribed reason under the Act. Specifically, the Court had to determine if the offer of continued stand down or termination was motivated by the employees' alleged exercise of a workplace right related to entitlements, or if it was for a lawful reason. The Court also considered the principles governing the construction of enterprise bargaining agreements and the application of section 524 of the *Fair Work Act 2009* (Cth) regarding the stand down of a workforce.

Judge Burnett reasoned that the offer made by McConnell Dowell presented employees with two lawfully available alternatives. The option to continue being stood down without pay was a lawful measure available under section 524 of the *Fair Work Act 2009* (Cth) in certain circumstances. The alternative of termination, with all accrued entitlements paid, was also a lawful outcome. The Court found that the employer was not acting because of a proscribed reason, but rather was presenting employees with choices arising from the employer's operational circumstances and the legal framework governing employment. The Court applied principles of statutory construction to the *Fair Work Act 2009* (Cth) and principles for the construction of industrial instruments, concluding that the offer of lawful alternatives did not amount to coercion or adverse action taken for an unlawful reason.

The application brought by the CFMEU was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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