Fair Work Commission

Fair Work Ombudsman v Offshore Marine Services Pty Ltd [2012] FCA 498 (17 May 2012), [(2012) 219 IR 435].

Fair Work Ombudsman v Offshore Marine Services Pty Ltd (No 2) [2013] FCA 943 (18 September 2013).

Fair Work Ombudsman v Skilled Offshore (Australia) Pty Ltd [2015] FCA 275 (27 March 2015).

A couple applied for work as ship stewards in 2009 and although the respondent wished to employ them, it told them they would need to first join the Maritime Union of Australia (MUA). The MUA refused their membership applications, in line with its policy of giving preference to ‘beached’ out-of-work members.

The Court found that the conduct of the MUA, not only in refusing the couple membership, but in the intimidation by threats of industrial action to which that company succumbed, such that the respondent, although it wanted to employ the couple, did not do so. The MUA’s conduct involved its blatant use of illegitimate industrial action power to bully the respondent into not employing the couple.

The MUA was culpable at two levels: first, for refusing the membership applications; and second, by illegitimately using the threat of industrial action to pressure the respondent not to employ non-union members. The respondent was also culpable, although at a lesser level than the MUA, for applying and maintaining the unlawful employment practice.

Penalty ordered

The MUA was ordered to pay the couple $79,200 as a pecuniary penalty.

Compensation ordered

The MUA and the respondent were ordered to pay the couple a total of $723,300 for loss suffered.

Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd [2011] FCA 333 (8 April 2011), [(2011) 193 FCR 526].

The applicant was dismissed because he had engaged in industrial activity by swearing and filing an affidavit in freedom of association proceedings in the Federal Court in which he represented or advanced the views, claims or interests of the union.

Penalty ordered

The respondent was ordered to pay the applicant $10,000 as a pecuniary penalty.

Compensation ordered

The respondent was ordered to pay the applicant $94,572.02 for loss suffered including interest.

Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36 (14 August 2013), [(2013) 248 CLR 619].

An employer provided its fly in/fly out employees on a mining site with accommodation on location for the duration of their work at that location. Some of those employees intended to engage in protected industrial action within the meaning of s.470 of the Fair Work Act. The employer sought, not to terminate their employment, but to cease providing them with accommodation on the basis of s.470(1) which provides:

If an employee engaged, or engages, in protected industrial action against an employer on a day, the employer must not make a payment to an employee in relation to the total duration of the industrial action on that day.

The union applied to the Federal Magistrates Court for relief on the basis that the employer’s refusal to provide accommodation contravened an employment agreement between the employer and the employees and constituted adverse action against the relevant employees in contravention of s.340.

The application was dismissed on the ground that the employer was required to act as it intended by s.470. An appeal by the union to the Federal Court of Australia was dismissed. The union was granted special leave to appeal to the High Court from the decision of the Federal Court.

The High Court held that the employees’ contractual entitlement to accommodation while on location was dependent on the subsistence of the employer-employee relationship and not on whether the employees were ready, willing and able to work. The employer’s denial of accommodation would be an alteration to the position of the employees to their prejudice so was considered adverse action.

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41 (16 October 2014), [(2014) 253 CLR 243].

A member of a union participated in a lawful activity at the Saraji mine organised by the union. During the course of that participation, he held and waved a sign supplied by the association which read ‘No principles SCABS No guts’. His employment was terminated three months later. The union alleged that the employer had taken adverse action in contravention of ss.340 and 346 of the Fair Work Act in dismissing the employee because the employee was a member of the association, or because he had participated in a lawful activity organised by the association, or had represented or advanced its views or interests.

The union commenced proceedings against the employer in the Federal Court. The reasons for the dismissal were explained in evidence given by the decision-maker on behalf of the employer which was accepted at trial. The reasons included that the decision-maker considered that the use of the word ‘scab’ was inappropriate, offensive, humiliating, harassing, intimidating and flagrantly in violation of the employer’s workplace conduct policy, of which the employee was aware, and that the employee demonstrated arrogance when confronted with objections to his conduct. The primary judge accepted that the fact that the employee had engaged in industrial activity did not play any part in the reasons for the decision to terminate his employment.

At first instance the claim under s.340 was dismissed but the employer was found to have contravened s.346 by taking adverse action against the employee for engaging in industrial activity and was ordered to reinstate the employee and pay a penalty of $7,500 to the union for the contravention. The employer appealed to a Full Court of the Federal Court. The appeal was allowed by the Full Court with the orders for reinstatement and payment of the penalty set aside. The union was granted special leave to appeal to the High Court.

The majority of the High Court held that there had been no contravention of s.346. None of the reasons accepted as fact by the primary judge was a prohibited reason. The employer did not dismiss the employee because he participated in the lawful activity of a protest organised by the union, nor was he dismissed because, in carrying and waving the sign, the employee was representing or advancing the views or interests of the union, as the union alleged. The employer’s reasons related to the content of the employee’s communications with his fellow employees, the way in which he made those communications and what that conveyed about him as an employee. The reasons included a concern that the employee could not, or would not, comply with the standards of behaviour which the employer was attempting to instil in employees at the mine.

United Firefighters Union of Australia v Easy [2013] FCA 763 (2 August 2013).

The applicant claimed she had engaged in ‘industrial activity’ by taking ‘protected action’, namely wearing a union T-shirt at work.

The Court found that, whilst wearing a union T-shirt could constitute ‘industrial action’ in certain circumstances, in this case it did not because there was no ban, limitation or restriction on the performance of work by the employee. Since the wearing of the union T-shirt did not constitute industrial action, the applicant was not exercising a workplace right; nor was she engaging in an industrial activity.

Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402 (10 December 2012), [(2012) 208 FCR 178].

The applicant’s argument that he engaged in industrial activity by reason of his expulsion from the union was rejected. Each subsection in s.347 refers to or identifies a conscious decision or act by a person. The applicant did not take any conscious action to cease to be a member—it was done by the union.

Construction, Forestry, Mining and Energy Union v Bengalla Mining Company Pty Limited [2013] FCA 267 (28 March 2013).

The applicant asked for unpaid leave to attend a union meeting on 3 occasions and his requests were refused. The employer’s leave policy stated that unpaid leave was only available if an employee had first exhausted all accrued leave. The applicant was told that he could apply for annual leave and that the company would support such an application. The applicant did not apply for annual leave. As a result, his absences were treated as unauthorised and disciplinary action ensued.

The Court found the disciplinary action was not taken for a prohibited reason.