Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Ltd (No 2)

The Construction, Forestry, Mining and Energy Union (CFMEU) sought to determine whether De Martin & Gasparini Pty Ltd (DMG) and two of its directors, Mr Mazzarolo and Mr Miller, had contravened provisions of the Fair Work Act 2009 (Cth) and the Building and Construction Industry (Improving Productivity) Act 2016 (Cth). The dispute arose from the CFMEU's claim that DMG's actions amounted to adverse action and coercion against its employees, in violation of the Fair Work Act and the Building Act, respectively. Specifically, the CFMEU alleged that DMG threatened to dismiss employees and implement redundancies to coerce them into varying a non-compliant enterprise agreement, which would have rendered DMG ineligible to tender for Commonwealth-funded building work. The employees had rejected the proposed variations, leading to the current proceedings.

The court was tasked with determining whether the actions of DMG and its directors constituted adverse action as defined in section 340 of the Fair Work Act, or a threat to take action under section 54 of the Building Act. The court had to assess whether these actions were taken because the employees had or had exercised a workplace right, and whether the actions were authorized by or under the Fair Work Act. Additionally, the court needed to examine whether DMG, through its directors, intended to coerce employees to vary the enterprise agreement, and if so, whether this amounted to a contravention of the Building Act.

In its judgment, the court found that the actions of DMG and its directors did not constitute adverse action or a threat to take action as defined by the Fair Work Act and the Building Act, respectively. The court reasoned that while DMG's conduct might have been coercive, it did not meet the statutory definitions of adverse action or a threat to take action. The court also concluded that the reasons and intentions behind the actions were not sufficient to establish a contravention of the relevant legislation. Consequently, the CFMEU's claims were dismissed.

The court ordered that the parties provide the court with short minutes of order within 14 days, including a timetable for any further hearing in relation to relief and other orders that can be agreed upon, having regard to the findings and reasons. Entry of orders is governed by Rule 39.32 of the Federal Court Rules 2011.