Federal Court of Australia Judgment: Fair Work Ombudsman v Maritime Union of Australia [2014] FCA 440

 
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Melbourne: Federal Court of Australia has issued the following press release:FEDERAL COURT OF AUSTRALIAFair Work Ombudsman v Maritime Union of Australia [2014] FCA 440Citation:Fair Work Ombudsman v Maritime Union of Australia [2014] FCA 440Parties:FAIR WORK OMBUDSMAN v MARITIME UNION OF AUSTRALIA and WILLIAM TRACEYFile number(s):WAD 136 of 2012Judge(s):SIOPIS JDate of judgment:6 May 2014Catchwords:INDUSTRIAL LAW – four employees elected to work during a protected action strike – after the strike posters were distributed at the workplace specifically naming the four employees and one other as scabs – the “scab poster” used language which denigrated the named employees as being unworthy of being treated with the dignity and respect normally accorded to human beings – a union official admitted distributing the scab posters – whether the union official organised the publication and distribution of the scab posters – whether the conduct amounted to adverse action – whether the named employees were prejudiced in their employment – whether the union was directly liable in respect of the scab poster action – whether the scab poster action was conduct engaged in with the intent to coerce one or more of the named employees to engage in further strike action.Legislation:Fair Work Act 2009 (Cth) ss 340, 341, 342(1) Item 7(b), 342(b), 343, 346, 348, 360, 361, 361(1), 363, 409, 437, 793, 793(1)Evidence Act 1995 (Cth) s 140(2)Cases cited:Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244CFMEU v BHP Coal Pty Ltd (No 3) [2012] FCA 1218BHP Coal Pty Ltd v CFMEU [2013] FCAFC 132Henry v Thomson [1989] 2 Qd R 412Giller v Procopets (2008) 24 VR 1TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323Monis v The Queen (2013) 295 ALR 259Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355National Tertiary Education Industry Union v Commonwealth of Australia (2002) 117 FCR 114Schanka v Employment National (Administration) Pty Ltd (2000) 170 ALR 42Universe TankshipsInc of Monrovia v International Transport Workers Federation [1983] 1 AC 366Finance Sector Union of Australia v Commonwealth Bank of Australia (2000) 106 FCR 16State of Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160Date of hearing:11-15 March 2013Place:PerthDivision:FAIR WORK DIVISIONCategory:CatchwordsNumber of paragraphs:Counsel for the Applicant:Mr JL Bourke SC and Ms R SweetSolicitor for the Applicant:Fair Work OmbudsmanCounsel for the First Respondent:Mr H Bornstein SCSolicitor for the First Respondent:Rockwell OlivierCounsel for the Second Respondent:Ms GA ArcherSolicitor for the SecondRespondent:WG McNally Jones Staff LawyersIN THE FEDERAL COURT OF AUSTRALIAWESTERN AUSTRALIA DISTRICT REGISTRYFAIR WORK DIVISIONWAD 136 of 2012BETWEEN:FAIR WORK OMBUDSMANApplicantMARITIME UNION OF AUSTRALIAFirst RespondentWILLIAM TRACEYSecond RespondentJUDGE:SIOPIS JDATE OF ORDER:6 may 2014WHERE MADE:PERTHTHE COURT ORDERS THAT:1.The parties are to produce a minute of orders which reflects these reasons for judgment.Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.IN THE FEDERAL COURT OF AUSTRALIAWESTERN AUSTRALIA DISTRICT REGISTRYFAIR WORK DIVISIONWAD 136 of 2012BETWEEN:FAIR WORK OMBUDSMANApplicantMARITIME UNION OF AUSTRALIAFirst RespondentWILLIAM TRACEYSecond RespondentJUDGE:SIOPIS JDATE:6 may 2014PLACE:PERTHREASONS FOR JUDGMENT1The Fremantle Port Authority (FPA) provides harbour facilities at two locations in the Perth metropolitan area, namely, Fremantle and Kwinana, 20 km south of Fremantle. The location in Fremantle is known as the inner harbour. The location in Kwinana is known as the outer harbour.2There are three operational areas in the inner harbour known as Victoria Quay (East End) on the southern side of the Swan River, North Quay on the northern side of the Swan River and the Overseas Passenger Terminal. H and J berths are located on Victoria Quay just east of the Overseas Passenger Terminal. In the outer harbour, there are two jetties known as Kwinana Bulk Terminal (KBT) and Kwinana Bulk Jetty.3At the time relevant to this case, FPA employed about 24 persons in the positions of vessel traffic service officers and small craft masters. The duties of the vessel traffic service officers, or VTSOs as they were referred to at the trial, were to maintain and control the traffic of vessels in the port. The VTSOs worked in the control tower in the inner harbour. They were responsible for the scheduling of all vessels at the port. They organised the time at which a pilot could be taken out to a ship to bring the ship into the wharf, as well as the mooring in order to tie the ship up. They were referred to during the trial as the port’s equivalent of air traffic controllers for an airport. The role of the small craft masters was to drive the craft which transports pilots to the vessels wanting to enter the port. The small craft masters also carried out their duties in the inner harbour. The deputy harbour master, Mr Alec Millett, was responsible for the management of the VTSOs and small craft masters. It was common cause that the duties performed by these employees were of vital significance to the ability of the port to continue to operate. Thus, if all the employees in these positions were to go on strike, the port would be crippled because no ships would be able to move in or out of the port.4Among those employed as VTSOs during the relevant period were Mr Matthew Scott, Mr David Mawbey, Mr Troy Kitcher, Mr Neville Jones and Mr Malcolm Toole. Among those employed as small craft masters were Mr Jonathan Daly, Mr Douglas Watson, Mr David Donaldson-Stiff, Mr Jamie Strickland, Mr Jamie Ralston, Mr Peter Fellowes and Mr Dennis Letch.5From at least 2004, the Australian Maritime Offices Union (AMOU) had the constitutional coverage to represent the interests of the VTSOs and small craft masters, but the AMOU only had an insignificant presence at Fremantle port. By 2007, a number of the VTSOs and small craft masters had become members of the first respondent, the Maritime Union of Australia (MUA). Among those persons who became members of the MUA were Mr Daly, Mr Donaldson-Stiff and Mr Mawbey. Also, Mr Fellowes, Mr Letch, Mr Kitcher and Mr Jones were MUA members and also MUA delegates. Mr Strickland was not a member of the MUA, but was a member of the AMOU. Mr Watson had applied to be a member of the MUA but had not paid the membership dues. Mr Scott, however, was not a member of the MUA or any other union.6The VTSOs and small craft masters were subject to an enterprise bargaining agreement which had been entered into in 2008. The nominal expiry date for the 2008 enterprise bargaining agreement was 16 June 2011. In September 2010, negotiations commenced for a new enterprise bargaining agreement between the FPA and the VTSOs and small craft masters.7In 2011, Mr William Tracey, the second respondent, was the assistant secretary of the Western Australia branch of the MUA. Mr Tracey had commenced employment with the MUA in 2008 as a union organiser. Mr Tracey reported to Mr Christopher Cain, who was the secretary of the Western Australia branch of the MUA, the most senior member of the executive of the MUA in Western Australia. He was also the national vice president of the MUA.8At different times from late 2010 onwards, a number of the VTSOs and small craft masters appointed Mr Tracey as their bargaining agent for all purposes of the Fair Work Act 2009 (Cth). These employees included Mr Watson, Mr Mawbey, Mr Daly and Mr Donaldson-Stiff. Mr Tracey engaged in negotiations with representatives of the FPA for the new enterprise bargaining agreement. During the negotiations, Mr Tracey proposed inclusion in the new agreement of a provision which would give the employees a six day paid interval between their four working shifts. At the time, the current interval was four days. This “four and six” claim was also part of the log of claims then being made by the MUA with respect to the employees covered by the Chevron enterprise bargaining agreement at Port Hedland, which was then being renegotiated.9During the negotiations on behalf of the VTSOs and small craft masters Mr Tracey also pushed for the MUA to be a party to the enterprise bargaining agreement, and also for the inclusion of a dispute resolution clause which was drafted by the MUA. During these negotiations, Mr Tracey wore MUA branded clothing.10On 26 September 2011, Mr Tracey, on behalf of those VTSOs and small craft masters who had appointed him their bargaining agent, applied to Fair Work Australia for a protected action ballot pursuant to s 437 of the Fair Work Act. The application was subsequently granted. Mr Tracey was represented before Fair Work Australia, by a lawyer, Mr Luke Edmonds. An invoice for that appearance was rendered to the MUA which paid the invoice.11In September 2011, the WA Rank & File Voice - the MUA WA branch newspaper - contained an article written by Mr Tracey entitled “Fight from the Front”. Parts of the article referred to the Western Australia branch of the MUA being in the middle of a number of “key campaigns”. One of those “key campaigns” identified by Mr Tracey in the article was that involving the VTSOs and small craft masters.12On 17 October 2011, Mr Tracey, on behalf of the VTSOs and small craft masters, filed a further application for a protected action ballot pursuant to s 437 of the Fair Work Act. The application was subsequently granted. Mr Tracey was again represented by a lawyer, whose invoice was paid by the MUA.13In October 2011, the VTSOs and small craft masters took part in a ballot as to whether to take protective action in relation to the 2011 negotiations for a proposed enterprise bargaining...

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