A New South Wales concrete pumping and placement company has been issued a formal warning for its breach of the 2016 Building Code after the Federal Court found the contractor unlawfully threatened to dismiss workers during enterprise agreement negotiations.

The formal warning issued by the Minister for Jobs is in addition to the penalty imposed by the Court.  The warning means De Martin & Gasparini (DMG), a subsidiary of Boral, risks being excluded from tendering for Commonwealth-funded building work for any future breaches of the Code. 

On 12 September 2018, the Federal Court ordered DMG to pay a penalty of $30,000 to the CFMMEU for contravening the adverse action provisions of the Fair Work Act.

The Court considered DMG’s contravention to be serious:

It involved threatening the company’s entire workforce with redundancy.  While the threat occurred in the course of what was supposed to be consultation with the workforce, there was, as events transpired, no real or effective consultation…Instead, Mr Mazzarolo and Mr Miller acted in a way which appeared to be intended to intimidate and instil fear in the workers

In considering the context of its conduct, the Court noted that:

De Martin & Gasparini was not gratuitously seeking to vary the Enterprise Agreement to water down the workers’ benefits, conditions, or rights… Rather, it was acting in the face of significant commercial concerns and its perception at the time, which appears to have been reasonably and genuinely held, that, given the attitude displayed by the CFMEU, it had little choice but to take the action it did.

Immediately following the Court’s liability judgment, the ABCC commenced its process under the Building Code and ultimately referred the matter to the Minister for Jobs and Industrial Relations. The Minister issued the formal warning on 19 December 2018.