AMMA senior workplace policy adviser Lisa Matthews explains why Employment Minister Eric Abetz will intervene on a Victorian Government appeal following the Federal Court’s ruling in an adverse action case.

EMPLOYMENT Minister Eric Abetz will intervene on public interest grounds in support of the Victorian government’s appeal of Federal Court findings in a recent adverse action case.

In May 2013, the Federal Court found the Victorian government’s withholding of building contracts from companies because of their industrial agreements was adverse action under the Fair Work Act, even though it was in compliance with Victoria’s own construction code and implementation guidelines.

Both adverse action cases were brought by the CFMEU.

In the first decision, Justice Mordy Bromberg found the Victorian government took adverse action against Lend Lease when it threatened to exclude it from the $630m Bendigo Hospital project in late 2012 because of the type of industrial agreement it had in place.

In the second decision, the Federal Court found McCorkell Constructions had unlawfully coerced demolition contractor Eco Recyclers Pty Ltd to vary its enterprise agreement. In that case, Justice Bromberg held that head contractor McCorkell had also taken adverse action against Eco’s employees when it excluded the demolition contractor from the Circus Oz refurbishment project.

In both cases, the parties’ conduct was due to provisions in the companies’ enterprise agreements that were contrary to the Victorian guidelines but allowable under the federal Building Code 2013 and the Fair Work Act itself.

Senator Abetz announced on 11 October 2013 that he had notified the court of the government’s decision to intervene in support of the Victorian Government’s appeal, saying the Federal Court decisions had “significant implications” for the operation of the Fair Work Act’s general protections provisions and it was in the public interest to intervene.

The Coalition’s Policy to improve the Fair Work laws released in May 2013 did not flag any significant changes to the Fair Work Act’s adverse action provisions, except to adopt a Fair Work review panel recommendation confirming the High Court’s findings in the September 2012 Barclay v Bendigo TAFE decision.

However, this latest move shows a willingness on the part of the Coalition, and new Employment Minister Eric Abetz, to intervene in significant cases on public interest grounds.