Australian Mines and Metals Association Inc v The Maritime Union of Australia [2016] FCAFC 71

Australian Mines and Metals Association Inc v The Maritime Union of Australia [2016] FCAFC 71

Section 413(5) of the Fair Work Act 2009 (Cth) requires that the identified persons (bargaining representatives and employees) must not have contravened any relevant orders that apply to them at the time of organising or engaging in the industrial action; it does not permanently bar protected industrial action due to past, remedied contraventions. Assessments required under s 413 are to be made at the time of the actual industrial action, not in advance based solely on previous conduct.

Jurisdiction
Australia
Judgment Date
25 May 2016
Procedural Posture
Appeal / Final Judgment
Outcome
appeal dismissed
Legal Topics
['protected Industrial Action' 'compliance With Bargaining Orders' 'fair Work Act 2009 (cth) S 413' 'statutory Construction' 'enterprise Agreements']
['industrial Law' 'employment Law'] ['protected Industrial Action' 'compliance With Bargaining Orders' 'fair Work Act 2009 (cth) S 413' 'statutory Construction' 'enterprise Agreements']

Case Brief

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Procedural Posture

Appeal / Final Judgment

Legal Issues

  1. 1 ['Whether s 413(5) of the Fair Work Act 2009 (Cth) requires compliance with orders to be assessed at the time industrial action is organised or engaged in' 'Whether past contravention of a bargaining order, even if remedied, permanently precludes protected industrial action' 'Whether substantial compliance with orders is sufficient']

Ratio Decidendi

Section 413(5) of the Fair Work Act 2009 (Cth) requires that the identified persons (bargaining representatives and employees) must not have contravened any relevant orders that apply to them at the time of organising or engaging in the industrial action; it does not permanently bar protected industrial action due to past, remedied contraventions. Assessments required under s 413 are to be made at the time of the actual industrial action, not in advance based solely on previous conduct.

Court Disposition

appeal dismissed

Orders

  • ['The appeal be dismissed.']