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ARTICLE · 10 AUGUST 2013

Generally protected: a government’s capacity to regulate enterprise bargaining via procurement policy

Clayton Utz
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All commercial contract negotiations must consider impacts of industrial laws if the contract involves a labour supply.

AustraliaGovernment, Public Sector
Leigh Howard (Formerly With Clayton Utz)
Leigh Howard (Formerly With Clayton Utz)
Graham Smith
Graham Smith
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Key Points:

All commercial contract negotiations (both public and private) must carefully consider the impact of industrial laws if the contract involves a labour supply.

The extent to which a government can pursue industrial relations objectives through procurement has come into question following two recent judgments of the Federal Court: Construction, Forestry, Mining and Energy Union (CFMEU) v Victoria1 and Construction, Forestry, Mining and Energy Union (CFMEU) v McCorkell Constructions Pty Ltd (No 2).2

In both cases, Bromberg J found that the State of Victoria contravened the general protections provisions of the Fair Work Act 2009 (Cth) (FW Act) when it attempted to enforce its industrial relations policy with respect to its own procurement, contained in the Implementation Guidelines to the Victorian Code of Practice for the Building and Construction Industry.

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