Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3)

In the case of Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3), the respondents sought various reliefs under the Fair Work Act 2009 (Cth) against the applicants, including an order for the respondents to offer employment to Mr Lamberth, a trainee car examiner. The applicants argued that the respondents' refusal to offer Mr Lamberth permanent employment after the expiry of his fixed term contract constituted adverse action. The respondents argued that they did not discriminate between Mr Lamberth and other employees, and that they were not required to offer employment after the expiry of a fixed term contract.

The court found that the respondents' refusal to offer Mr Lamberth permanent employment was discriminatory and constituted adverse action. The court held that the relevant comparison should be made between the treatment of Mr Lamberth and other employees in similar circumstances, and that the majority of employees on fixed term contracts were offered further employment at the end of their first year. The court also found that the respondents' refusal to accept Mr Lamberth's nomination to be a safety and health committee representative and their giving of a negative performance review were further instances of adverse action.

The court held that the applicants were entitled to declaratory relief and that re-employment was the appropriate form of relief. The court ordered the respondents to offer Mr Lamberth permanent employment on the same terms and conditions as other employees who had completed their first year of employment and had accepted offers of permanent employment. The court also ordered the parties to confer with a view to agreeing on any further orders and a timetable for evidence and submissions on the question of penalty. In default of agreement, the proceeding was to be re-listed for hearing argument on penalty. The court further ordered the respondents to pay the applicants' costs of their unsuccessful interlocutory application for a transfer of the proceeding to the Western Australian registry.

The court's decision highlights the importance of treating employees fairly and without discrimination, even in cases where employees are employed on fixed term contracts. Employers must ensure that they do not discriminate against employees based on prohibited reasons, such as their involvement in industrial activity or their complaints or inquiries in relation to their employment. Employers must also ensure that they do not take adverse action against employees for engaging in protected activities. Failure to do so may result in legal consequences, including orders for re-employment and compensation.