Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 3)
Citation: [2018] FCA 1395
At a glance
- Penalty
- $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.
Want this applied to your situation?
Reading the decision is free. FairWork Mate goes further — it reads the full case library and applies precedents like this one to your specific facts, citing the cases as it reasons. General information, not a guaranteed outcome or legal advice.
Every statement above is drawn from the published decision. Read the original here:
https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2018/2018fca1395Want more cases like this?
FairWork Mate tracks Fair Work Ombudsman, Fair Work Commission and Federal Court decisions across Australia. The AI advisor answers plain-English questions grounded on the full corpus — awards cited, industry, penalty amounts and affected employee counts — with a citation to the underlying decision on every answer.
Individual case summaries on this site are free. Full-corpus advisor access is a paid product — Business Solo from $99/mo, 50% off your first 3 months for the first 100 signups.
Get notified on new Fair Work cases
Free email alerts when we publish new underpayment decisions, penalty orders, and workplace law updates.
Free forever. No spam. Unsubscribe anytime.
This summary was drafted from the published decision and reviewed before publishing. It is general information, not legal advice. For your specific situation, speak to the Fair Work Ombudsman (13 13 94) or a qualified lawyer. About these summaries & corrections →