02 September 2016Building company penalised for “blatant” discrimination against subcontractor

The Federal Circuit Court has this week published its decision to penalise lead contractor Hutchinson Builders and two of its employees a total of $29,175 for discriminating against a subcontractor who did not have an enterprise agreement with the CFMEU.

Hutchinson Builders had proposed to engage a tiling company to work on their Circa One project site in October 2012.

However, the week the tiling company was scheduled to commence work on the site, they were told via an email from Hutchinson Builders that they were no longer engaged on the project.

The email from Hutchinson stated that “without a union-endorsed EBA we will not be able to engage [the tiling company].”

Judge Vasta emphasised the seriousness of this kind of conduct, which he said “strikes at the heart of freedom of association”.

Judge Vasta noted that ‘industrial harmony’ was a factor that contributed to the discriminatory conduct against the tiling company, but warned that these practices have great potential to “disadvantage subcontractors who simply want to earn an honest living”.

“If the only way in which (subcontractors) can break into those circles is to have made an agreement with the CFMEU, then the whole fabric of our industrial relations system will disintegrate,” Judge Vasta said.

Judge Vasta ordered penalties of $25,575 against Hutchinson Builders and $1,800 each against employees John Berlese and Edan Hawley.

FWBC Director Nigel Hadgkiss said the case was an example of a concerning practice in the building and construction industry in which contractors refuse to engage subcontractors who do not have an enterprise agreement with a union.

Judge Vasta highlighted that this was a “blatant case of discrimination against [the tiling company] because they did not have an EBA that included the CFMEU. It is clear on the way that the facts have been presented by both parties that if [the tiling company] did have an agreement with the CFMEU, then they would have completed the contract for the tiling at Circa One”.

“Another five employers, four of which are in Queensland, are currently before the courts facing allegations of discrimination and adverse action against subcontractors,” Mr Hadgkiss said.

“Many subcontractors are small to medium businesses, often family-run enterprises. Australia’s workplace laws have long protected small businesses from being excluded from work because of their industrial arrangements. Such unlawful behaviour will not be tolerated in the building and construction industry and FWBC will continue to bring such matters before the courts.”

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