Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 3)
At a glance
- $30,000
What happened
De Martin & Gasparini employed about 110 construction workers, many of whom were CFMEU members. The company entered an Enterprise Agreement with the CFMEU in March 2015 lasting until March 2018. In June 2017, a new code (Code for Tendering and Performance of Building Work 2016) required changes to the agreement or the company would be ineligible for Commonwealth-funded work. Management proposed varying the agreement but workers voted against the proposal on 28 June 2017, partly influenced by the CFMEU's opposition. On 3 July 2017, two senior officers met with workers and threatened dismissal, threatened to alter their positions to their prejudice, and said they would be injured in their employment if they did not approve the variation.
What was decided
Justice Wigney found that De Martin & Gasparini contravened section 340 of the Fair Work Act through its senior officers' words and conduct. The threats constituted adverse action taken because workers had workplace rights (entitlement to the enterprise agreement) and had exercised a workplace right (voting on the agreement variation). The court declared the contravention and ordered the company to pay a $30,000 pecuniary penalty to the CFMEU.
What it means for employers
Employers cannot threaten dismissal, injury to employment, or altered positions to coerce employees into approving changes to enterprise agreements. Even under business pressure (such as eligibility requirements), management must follow fair processes and cannot use threats or duress. Such conduct exposes employers to significant penalties.
What it means for employees
Employees have a protected right to vote on enterprise agreement variations without being threatened or coerced by their employer. If management threatens dismissal or adverse treatment in response to voting against a proposal, this is unlawful. Workers should report such conduct.
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