By Stephanie Philippou

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A Brisbane construction company was fined $275,000 in compensation for discrimination against a subcontractor that did not have an enterprise agreement with the CFMEU.

Forest Meiers Construction has been held liable for contravening the Fair Work Act’s s340 adverse action provisions and s354 discrimination provisions: resulting in a judgment to pay compensation of $240,000 to the subcontractor.

More recently, the Court imposed an additional $32,000 penalty against Forest Meiers Construction and a $3,000 penalty against its construction manager.

The subcontractor, C&K Tiling, was the more cost-effective option. However, pressure from CFMEU encouraged Forest Meiers to engage a competitor whose price was $300,000 more than that tendered by C&K Tiling.

His Honour, Judge Jarrett, accepted the Australian Building and Construction Commissioner’s (ABCC) view that Forest Meiers’ conduct against C&K Tiling was discriminatory and coercive.

“Forest Meiers’ conduct against C&K has the potential to perpetuate a culture of submission in the building and construction industry where economic duress is able to be applied to subcontractors to force them to become covered by an enterprise agreement that also covers a union”.

In handing down the penalty judgment, Judge Jarrett also said:

“despite having the best price for the tiling works, a competitor was engaged whose price was some $300,000 more than that tendered by C&K. … such behaviour is not only to the detriment of victims such as C&K, but to the industry and the community at large.”

The decision is a warning to unions and contractors to comply with their obligations under the Fair Work Act, which protect not only workers but also contractors, from commercial discrimination.  Judge Jarrett described the purpose of the Fair Work Act as providing:

“significant protections designed to level the playing field between industrial participants, that provide for freedom of association and which recognise the choice that employers and employees have to engage with industrial unions”.

The Fair Work Act 2009 sections were relevant:

Section 340: which precludes any person from taking “adverse action” against another person because that person has a “workplace right”, elects to exercise or not exercise a workplace right, or to prevent that person exercising a workplace right; and

Section 345: which precludes discrimination against an employer on the basis of their coverage (or absence of) by the national employment standards, enterprise agreements and other workplace instruments.

If you would like advice about your obligations or rights under the Fair Work Act, seek legal advice from the insurance and workplace law experts at BTLawyers by emailing manager@btlawyers.com.au or calling 3211 2233

For a full summary of the case, visit ABCC v Forest Meiers Construction Pty Ltd & Anor (No.2) [2019] FCCA 2663 (20 September 2019)