Federal Court rules on the interaction between the Victorian Construction Code and Implementation Guidelines and the adverse action provisions

The CFMEU has successfully challenged a key aspect of State Government regulation of industrial relations in the building and construction industry, with the Federal Court finding in two separate decisions that implementation of the Victorian Government's Construction Code and Implementation Guidelines involved unlawful adverse action and coercion against the employees of two bidders for government-funded work.

The decisions have been keenly anticipated, both as a measure of the extent to which State Governments can pursue industrial relations objectives through procurement policy, and also as an indicator of the extent to which industrial laws need to factored into commercial contract negotiations involving labour supply. These decisions illustrate the increasing significance of the general protections provisions in Part 3-1 of the Fair Work Act 2009 (FW Act) in everyday commercial contexts such as large-scale tender and contractor selection processes. The