CFMEU v McConnell Dowell Constructors (Aust) Pty Ltd

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.