Construction, Forestry, Mining and Energy Union v State of Victoria

The case of Construction, Forestry, Mining and Energy Union v State of Victoria involved a dispute between the Construction, Forestry, Mining and Energy Union (CFMEU) and the State of Victoria. The CFMEU alleged that the State took adverse action against employees of an independent contractor, Lend Lease, because those employees had workplace rights under an enterprise agreement. The Federal Court of Australia was tasked with determining whether the actions of the State constituted adverse action under the Fair Work Act 2009 (Cth), and whether such legislation exceeded the Commonwealth's constitutional legislative capacity.

The primary legal issues before the court were whether the State's threat to refuse to engage Lend Lease as a contractor constituted adverse action, and if so, whether this action was taken because the employees were entitled to the benefits of the Lend Lease Enterprise Agreement. Additionally, the court had to consider whether sections 340-342 of the Fair Work Act exceeded the Commonwealth's legislative capacity under the Melbourne Corporation limitation of the Constitution.

The court found that the State's threat to refuse to engage Lend Lease constituted adverse action, as it was a coercive action that could potentially harm the employees' employment. The court held that the adverse action was likely taken because the employees were entitled to the benefits of the enterprise agreement, as the State did not provide sufficient evidence to rebut the presumption created by section 361 of the Fair Work Act. Furthermore, the court concluded that sections 340-342 of the Fair Work Act did not exceed the Commonwealth's legislative capacity under the Melbourne Corporation limitation, as they did not deny the continued existence of independent state governments.

In conclusion, the court ordered that the parties consult and file with the Court minutes of proposed orders addressing the filing and service of outlines of submissions in relation to the applicant's claim for the imposition of a penalty upon the respondent. The matter was listed for further hearing on a date to be fixed.