Coercion in the building and construction industry is unlawful under provisions of the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act) and the general protections provisions in the Fair Work Act 2009 (FW Act).

What is coercion?

Coercion is taking or threatening action which is unlawful, illegitimate or unconscionable with the intention of negating a person’s choice to do, or not to do something. Coercion interferes with a person’s freedom of choice.

Hiring building contractors or employees

It’s unlawful to organise, threaten or take action with the intention of coercing a person to:

  • employ or not employ a person as a building employee
  • engage or not engage a person as a building contractor
  • allocate or not allocate particular responsibilities to a building employee or contractor or designate particular duties to a building employee or contractor
  • pay superannuation contributions to a particular fund or scheme.

Agreement making

People are entitled to make, change or terminate enterprise agreements under the FW Act. It’s unlawful for a person to coerce or apply undue pressure to another person to influence them to agree or not agree to make, vary, extend or terminate a building enterprise agreement.

Membership of unions and industrial associations

It’s unlawful for a person to coerce another person to:

  • become or not become or remain or cease to be an officer or member of an industrial association
  • represent or advance the views, claims or interests of an industrial association
  • pay a fee to an industrial association or to someone in lieu of an industrial association
  • comply with a request or requirement of an industrial association, which is related to its industrial activities 
  • take part in industrial action
  • pay strike pay.

What penalties may be imposed for unlawful coercion?

If the Federal Court or Federal Circuit Court finds that unlawful coercion has occurred it may:

  • impose a penalty
  • grant an injunction
  • require compensation to be paid
  • make any other appropriate order.

The maximum penalties are:

  • up to $44,400 for individuals and up to $222,000 for a body corporate per breach of the BCIIP Act
  • up to $13,320 for individuals and up to $66,600 for a body corporate per breach of the FW Act.

A court may also order the party found to have engaged in coercive conduct to compensate the party they intended to coerce for any loss they suffered as a result of the coercive conduct.

Need more information?

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