Fair Work Ombudsman v Maritime Union of Australia [2014] FCA 440

Fair Work Ombudsman v Maritime Union of Australia [2014] FCA 440

The Court found that Mr Tracey, acting within the scope of his authority as a MUA official, engaged in adverse action by publishing and organising dissemination of the scab posters targeting named employees for not striking, in contravention of s 346 of the Fair Work Act. This conduct prejudiced the named employees in their employment by exposing them to vilification, emotional distress, and workplace marginalisation. The MUA was held vicariously and directly liable. The claim under s 348 (coercion) failed because the posters did not have the requisite intent to negate choice and coerce the employees into future industrial action; rather, they represented punitive, non-redemptive...

Parties
Applicant: Fair Work Ombudsman; First Respondent: Maritime Union of Australia; Second Respondent: William Tracey
Jurisdiction
Australia
Judgment Date
06 May 2014
Procedural Posture
Application (civil Penalty/compensation) / Substantive Judgment on Liability (penalty/compensation Yet to Be Determined)
Outcome
Application partly allowed (contravention of s 346 established; s 348 dismissed).
Legal Topics
Adverse Action, Coercion, Protected Industrial Action, Freedom of Association, Union Liability, Workplace Rights
Industrial Law Employment Law Adverse Action Coercion Protected Industrial Action Freedom of Association Union Liability Workplace Rights

Case Brief

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Parties

Fair Work Ombudsman

Applicant

Maritime Union of Australia

First Respondent

William Tracey

Second Respondent

Procedural Posture

Application (civil Penalty/compensation) / Substantive Judgment on Liability (penalty/compensation Yet to Be Determined)

Legal Issues

  1. 1 Whether Mr Tracey and the Maritime Union of Australia contravened s 346(c) (adverse action) and/or s 348 (coercion) of the Fair Work Act 2009 (Cth) by publishing and disseminating 'scab posters' against employees who did not strike; whether the conduct prejudiced the named employees' employment; whether the conduct was undertaken with intent to coerce employees into industrial action; whether the union was vicariously or directly liable for Mr Tracey's conduct.

Ratio Decidendi

The Court found that Mr Tracey, acting within the scope of his authority as a MUA official, engaged in adverse action by publishing and organising dissemination of the scab posters targeting named employees for not striking, in contravention of s 346 of the Fair Work Act. This conduct prejudiced the named employees in their employment by exposing them to vilification, emotional distress, and workplace marginalisation. The MUA was held vicariously and directly liable. The claim under s 348 (coercion) failed because the posters did not have the requisite intent to negate choice and coerce the employees into future industrial action; rather, they represented punitive, non-redemptive...

Court Disposition

Application partly allowed (contravention of s 346 established; s 348 dismissed).

Orders

  • The parties are to produce a minute of orders reflecting these reasons for judgment.
  • The Court will hear further submissions as to penalty and compensation.