FairWork Ombudsman v Maritime Union of Australia and Tracey
Decision of Siopis J, 6 MAY 2014
In this case the Fair Work Ombudsman had taken proceedings against the union and a union organiser as a result of the treatment of four employees, including calling them and referring to them as “scabs”, because of their resistance to taking action to in a strike. The claim involved the proposition that penalties should be paid under s346(c) and 348 of the Fair Work Act. Section 348 involved a civil penalty.
Of interest to those involved in damages litigation is the question of whether there was the prospect of an award of damages being made to the complainant parties. The provisions under which that award might have been made were sections 545(1) and 545(2)(b) of the Act. The question was whether the adverse action prejudiced the named employees in their employment (item 7b of s342(1)) and if so the value of that prejudice.
Elements of the claim included damages to reputation, reducing the prospect of the claimants obtaining work with another employer, subjecting them to fear and psychiatric or psychological injuries.
On the evidence, the claim against Tracey that his conduct sought to coerce the complainants was dismissed. On the question of whether the “scab” poster action by Mr Tracey was illegitimate, unconscionable or unlawful, it was found that it was unlawful.
On the question of responsibility for this action, the MUA agreed that Mr Tracey acted within his apparent authority. His Honour found on the evidence that the MUA was directly liable for the contravention of s346 of the Act in respect of Mr Tracey’s “scab” poster action.
Submissions were then made in regard to penalty and compensation. In regard to compensation submissions were made to His Honour on the question of whether Part 2 of the Civil Liability Act 2002 WA would limit the power of the court to award compensation for personal injury under s45 of the Fair Work Act. The submissions had been made on the assumption that the court would find that each of the named employees had suffered psychiatric damage, however His Honour did not make such a finding.
His Honour concluded by inviting the parties to make submissions on the question of whether on the basis of the findings that were made, any compensation and if so the quantum thereof was payable to the employees, as well as the effect of part 2 of the Civil Liability Act.
Disappointingly for those particularly interested in the question of the possible extension of a cause of action under the Fair Work Act to the arena of recovery of damages, after 356 paragraphs of a very carefully considered decision, His Honour was not able to or required to make findings at that time on the question of compensation and jurisdiction. A further adjudication on these issues is awaited.
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