Director, Fair Work Building Inspectorate v J Hutchinson Pty Ltd

In the Federal Circuit and Family Court of Australia, the Director, Fair Work Building Inspectorate (the applicant) brought proceedings against J Hutchinson Pty Ltd (the respondent) alleging contraventions of the *Building and Construction Industry (Improving Productivity) Act 2013* (Cth) and the *Fair Work Act 2009* (Cth). The dispute concerned allegations that the respondent had discriminated against a subcontractor, Direct Labour Hire Pty Ltd, by refusing to engage its services because Direct Labour Hire did not have an enterprise bargaining agreement (EBA) with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The applicant sought pecuniary penalties and declarations.

The primary legal issue before the court was whether the respondent's conduct constituted unlawful discrimination under section 34SJ of the *Building and Construction Industry (Improving Productivity) Act 2013* and section 343 of the *Fair Work Act 2009*. Specifically, the court had to determine if the respondent's refusal to engage Direct Labour Hire was because the subcontractor lacked an EBA with the CFMEU, and if this refusal was for a prohibited reason under the relevant legislation. A further issue was the utility of making declarations in the circumstances.

Judge Vasta found that the applicant had failed to establish that the respondent's decision not to engage Direct Labour Hire was motivated by the absence of a CFMEU EBA. The court reasoned that the evidence did not demonstrate a causal link between the lack of an EBA and the respondent's decision. Instead, the evidence suggested that the respondent had legitimate commercial reasons for its decision, unrelated to the subcontractor's EBA status with the CFMEU. Consequently, the court concluded that the alleged contraventions were not proven.

The court ordered that the application be dismissed.