Posted on 17 May 2013
The Federal Court has found the Victorian State Government acted unlawfully when it attempted to use its building code to exclude two construction companies from government work because their workers had enterprise agreements in breach of the code.
Justice Mordecai Bromberg today handed down his findings into the cases of CFMEU v State of Victoria and CFMEU v McCorkell Constructions Pty Ltd & State of Victoria which were the subject of a four-day trial in March.
Slater and Gordon industrial lawyer Marcus Clayton, who acts for the CFMEU, said the judgments in favour of the CFMEU were a significant blow to the government’s Building and Construction Code.
The union successfully argued that the Victorian Government acted unlawfully in attempting to exclude companies from government tenders, including the construction of Bendigo Hospital and the Circus Oz Project in Collingwood.
“The Liberal Government is always trying to say that workplaces where unions are involved are more expensive but the court has found in this case that Lend Lease had put in a superior bid and yet still the Government was going to exclude them simply because of its industrial relations policy,” Mr Clayton said.
Justice Bromberg found that the State Government breached the Fair Work Act in seeking to exclude Lend Lease from the hospital project on the grounds that Lend Lease’s valid and legally-binding EBA breached the building code.
He found that McCorkell excluded Eco Recyclers from the Circus Oz project on similar grounds and that the State Government’s Construction Code Compliance Unit coerced Eco employees by requiring Eco to vary its EBA under the threat of missing out on government work.
“Today’s decision means construction workers will be able to retain the positive benefits they have fought for and bargained for and that the State Government can’t hold those benefits against their employers.”
“The union fought for these rights with the workers in their EBA negotiations and the union is the one that has taken the State Government to court to prove that
CFMEU secretary John Setka said the decision vindicated the unions standpoint that the Government’s code was illegal and unenforceable.
“This affirms the democratic right of unions to negotiate in good faith with employers to make collective agreements within Federal industrial relations laws,” Mr Setka said.
“The government should stop wasting money on these futile exercises and concentrate on creating jobs.”
The court will hold a further hearing where the parties will make submissions about the penalties to be imposed on the state.