Australian Workers' Union v CBI Constructors Pty Ltd [2016] FCA 745

Australian Workers' Union v CBI Constructors Pty Ltd [2016] FCA 745

WGPSN, through Mr Mackin, refused to employ Mr Lee in late November 2013. The refusal was for reasons that included Mr Lee's past role as a Union organiser and his representation and advancement of the Union's views, claims and interests, because Mr Mackin assumed Esso would oppose Mr Lee's employment for those reasons and acted on that assumption. That contravened s 346 of the Fair Work Act 2009 (Cth). However, Mr Lee did not prove that he would probably have been employed absent the unlawful reason, given the casual pool and the substantial cost and difficulty of obtaining the required MRCs, so compensation was refused. A penalty of $17,500 was appropriate.

Jurisdiction
Australia
Judgment Date
24 June 2016
Procedural Posture
Industrial Law Proceeding Alleging Adverse Action in Contravention of S 346(a) and (b) of the Fair Work Act 2009 (cth) / Judgment After Hearing on Liability, Compensation and Pecuniary Penalty; Proceeding Discontinued Against the First Respondent
Outcome
The second respondent contravened s 346 of the Fair Work Act 2009 (Cth) and was ordered to pay a pecuniary penalty; the compensation claim was rejected and the Application was otherwise dismissed.
Legal Topics
['adverse Action' 'refusal to Employ' 'industrial Activity' 'union Officer Status' 'compensation Under the Fair Work Act 2009 (cth)' 'pecuniary Penalty']
['industrial Law' 'employment Law'] ['adverse Action' 'refusal to Employ' 'industrial Activity' 'union Officer Status' 'compensation Under the Fair Work Act 2009 (cth)' 'pecuniary Penalty']

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Procedural Posture

Industrial Law Proceeding Alleging Adverse Action in Contravention of S 346(a) and (b) of the Fair Work Act 2009 (cth) / Judgment After Hearing on Liability, Compensation and Pecuniary Penalty; Proceeding Discontinued Against the First Respondent

Legal Issues

  1. 1 ['Whether WGPSN refused to employ, or threatened to refuse to employ, Mr Lee within the meaning of s 342(1) of the Fair Work Act 2009 (Cth).' 'Whether any refusal to employ Mr Lee was because he had been an officer of the Union or had engaged in industrial activity within s 346(a) or (b) and s 347(b) of the Fair Work Act 2009 (Cth).' "Whether WGPSN's concern about Esso's assumed reaction, rather than WGPSN's own direct opposition to Mr Lee's union role, avoided liability under s 346." 'Whether Mr Lee proved entitlement to compensation on the counterfactual that he would have been employed absent the proscribed reason.' 'What pecuniary penalty should be imposed for the contravention of s 346.']

Ratio Decidendi

WGPSN, through Mr Mackin, refused to employ Mr Lee in late November 2013. The refusal was for reasons that included Mr Lee's past role as a Union organiser and his representation and advancement of the Union's views, claims and interests, because Mr Mackin assumed Esso would oppose Mr Lee's employment for those reasons and acted on that assumption. That contravened s 346 of the Fair Work Act 2009 (Cth). However, Mr Lee did not prove that he would probably have been employed absent the unlawful reason, given the casual pool and the substantial cost and difficulty of obtaining the required MRCs, so compensation was refused. A penalty of $17,500 was appropriate.

Court Disposition

The second respondent contravened s 346 of the Fair Work Act 2009 (Cth) and was ordered to pay a pecuniary penalty; the compensation claim was rejected and the Application was otherwise dismissed.

Orders

  • ['The second respondent pay a penalty of $17,500 for its contravention of s 346 of the Fair Work Act 2009 (Cth) in November 2013 constituted by its refusal to employ the second applicant for reasons which included the reason that he had been an officer of the first applicant and, in that capacity, had represented...