Director, Fair Work Building Industry Inspectorate v Devine Constructions Pty Ltd - [2019] FCCA 1394

FEDERAL CIRCUIT COURT OF AUSTRALIA

DIRECTOR, FAIR WORK BUILDING INDUSTRY INSPECTORATE v DEVINE CONSTRUCTIONS PTY LTD & ORS

[2019] FCCA 1394

Catchwords:
INDUSTRIAL LAW – Application for the imposition of pecuniary penalties – whether principal under a contract for services took adverse action against contractor – whether adverse action taken because contractor did not have an enterprise agreement that covered CFMEU – whether principal discriminated against contractor because contractor did not have an enterprise agreement that covered CFMEU.

Legislation:

Fair Work Act 2009 (Cth), ss.340, 340(1), 342, 342(1), 354, 354(1)(a)(iii), 550, 550(1), 361

Workplace Relations Act 1996 (Cth), ss.327, 340, 340(2), 341, 342(1), 344, 418(e), Div 5A, Pt 8
Workplace Relations Regulations 2006 (Cth), regs.8.13(1), 8.13(2), 8.13(5)

BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (2014) 253 CLR 243
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No.1] (2012) 2012 CLR 500
National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139
Shop Distributive and Allied Employees Association v Karellas Investments Pty Ltd (2008) 166 FCR 562
Tsilibakis v Transfield Services (Australia) Pty Ltd [2015] FCA 740
Yorke v Lucas (1985) 158 CLR 661

Applicant:

DIRECTOR, FAIR WORK BUILKDING INDUSTRY INSPECTORATE

First Respondent:

DEVINE CONSTRUCTIONS PTY LTD

Second Respondent:

MICHAEL TUCKER

Third Respondent:

ANDREW BLORE

Fourth Respondent:

WAYNE SENGELMAN

File Number:

BRG 773 of 2015

Judgment of:

Judge Jarrett

Hearing date:

14 June 2016

Date of Last Submission:

14 June 2016

Delivered at:

Brisbane

Delivered on:

24 May 2019

REPRESENTATION

Counsel for the Applicant:

Mr Duffy QC with Mr Mackie

Solicitors for the Applicant:

Clayton Utz

Counsel for the Respondents:

Mr Murdoch QC

Solicitors for the Respondents:

ClarkeKann Lawyers

ORDERS

Within 14 days of today, the parties bring in minutes of orders, including directions for the determination of penalty, upon which they agree to give effect to these reasons;
Otherwise the application be adjourned to a date to be fixed for the making or orders consistent with these reasons and in relation to the issues of penalty.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 773 of 2015

DIRECTOR, FAIR WORK BUILKDING INDUSTRY INSPECTORATE

Applicant

And

DEVINE CONSTRUCTIONS LIMITED

First Respondent

MICHAEL TUCKER

Second Respondent

ANDREW BLORE

Third Respondent

WAYNE SENGELMAN

Fourth Respondent

REASONS FOR JUDGMENT

A person must not take adverse action against another person because that other person has a workplace right or has not exercised a workplace right: s.340(1) of the Fair Work Act 2009 (Cth).
Further, a person must not discriminate against an employer because employees of the employer are covered by an enterprise agreement that does not cover an employee organisation or a particular employee organisation: s.354(1)(a)(iii) of the Fair Work Act.
In this case, the applicant alleges that the first respondent took adverse action against an employer called Craig’s Engineering Pty Ltd because:
a)Craig’s Engineering had exercised a workplace right to have an enterprise agreement with its employees that did not cover the Construction, Forestry, Mining and Energy Union of Employees; and
b)Craig’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Director, Fair Work Building Industry Inspectorate v Devine... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FCCA 1394
Decision Date: 24 May 2019

CaseChat Overview and Summary

The Federal Circuit Court of Australia heard a dispute between the Director, Fair Work Building Industry Inspectorate (the Director) and Devine Constructions Pty Ltd (Devine Constructions). The Director alleged that Devine Constructions had contravened section 346 of the *Fair Work Act 2009* (Cth) by taking adverse action against an employee, Mr. Mark Grist, because he had exercised a workplace right. Specifically, the Director contended that Devine Constructions dismissed Mr. Grist from his employment as a site manager due to his requests for overtime pay and his complaints about unpaid entitlements.

The central legal issue before the Court was whether Devine Constructions had taken adverse action against Mr. Grist for exercising a workplace right, thereby contravening section 346 of the *Fair Work Act 2009* (Cth). This required the Court to determine if Mr. Grist had indeed exercised a workplace right by making requests for overtime pay and raising concerns about unpaid entitlements, and if Devine Constructions' decision to terminate his employment was causally connected to those actions.

Judge Jarrett found that Mr. Grist's requests for overtime pay and his complaints about unpaid entitlements constituted the exercise of a workplace right under the *Fair Work Act 2009* (Cth). The Court reasoned that the employer's motive for the adverse action is a crucial element in establishing a contravention of section 346. In this instance, the Court was satisfied that the evidence demonstrated Devine Constructions' decision to dismiss Mr. Grist was substantially influenced by his exercise of these workplace rights. The Court concluded that Devine Constructions had contravened section 346 of the Act.

Orders