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Fair Work Ombudsman v Australian Workers' Union

Fair Work Ombudsman v Australian Workers' Union

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FEDERAL COURT OF AUSTRALIA
Fair Work Ombudsman v Australian Workers’ Union [2017] FCA 528

File number: VID 266 of 2016

Judge: BROMBERG J

Date of judgment: 17 May 2017

Catchwords:
PRACTICE AND PROCEDURE – summary dismissal – Federal Court of Australia Act 1976 (Cth), s 31A – whether the applicant has a reasonable prospect of successfully prosecuting the proceeding or a part of it

INDUSTRIAL LAW – adverse action – Fair Work Act 2009 (Cth) (“FWA”), ss 340(1)(a) and 346 – whether action alleged was capable of amounting to a “disability of any kind” – (see below in relation to proper construction of “disability of any kind”) – whether the conduct of a member of an organisation, acting in his capacity as a member, could be said to be action taken by an agent acting within the scope of his actual or apparent authority for the purposes of s 793(1)(a) of the FWA – no basis on the facts pleaded for considering that there was apparent authority – it is arguable that if actual authority could be demonstrated, agency may be established even where the context negates the suggestion – whether the communication of a charge under the rules of a union and potential penalties could amount to a threat to take adverse action – meaning of “threatening to take action” in s 342(2) discussed – the communication of a threat, comprising an intent to inflict harm, must logically involve an objectively ascertainable basis for thinking that the person making the communication has the capacity to inflict the harm

STATUTORY INTERPRETATION – proper construction of “imposes … disability of any kind” under Item 7(d) of s 342(1) of the FWA – whether “disability of any kind” was intended as a broad additional category of adverse action constituted by any form of prejudice, detriment or disadvantage – to impose a “disability” on a member is to subject the member to a restriction or other constraint which disables or incapacitates the member from doing something the member would otherwise be entitled to do

INDUSTRIAL LAW – coercion – FWA, ss 343 and 348 – meaning of “intent to coerce” – extent to which the reversal of onus in s 361(1) applies to proof of an “intent to coerce” – whether authorities relating to adverse action under s 340(1)(a) which require an applicant to prove the fact of the “circumstance” said to form the reason for action are also applicable to coercion proceedings under ss 343 and 348 – where an applicant alleges coercion of union members to participate in protected industrial action – whether an applicant alleging such coercion is required to establish that protected industrial action was in prospect at the time coercive action was taken – if such a requirement exists the relevant foundational facts relate to the existence of the protected choice said to have been negated by the coercion – the prospect of protected industrial action will be relevant to but not determinative of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FCA 528
Decision Date: 17 May 2017

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) filed an application against the Australian Workers' Union (AWU) in the Federal Circuit Court of Australia, seeking summary dismissal of the AWU's interlocutory application. The AWU sought to challenge the FWO's claim for accessorial liability under the Fair Work Act 2009 (Cth), asserting that the FWO had no reasonable prospect of success. The FWO argued that the AWU's conduct constituted adverse action and coercion against union members, which the AWU sought to avoid by raising the summary dismissal application.

The court had to determine whether the FWO had a reasonable prospect of successfully prosecuting its claims against the AWU, focusing on the AWU's alleged adverse action, coercion, and the applicability of accessorial liability provisions. The court also needed to consider the proper construction of terms such as "disability of any kind," "threatening to take action," and "intent to coerce" within the Fair Work Act. Additionally, the court had to assess whether the conduct of a member of the AWU acting in his capacity could be attributed to the AWU as an organisation.

The court found that the FWO had a reasonable prospect of success on its claim, rejecting the AWU's argument for summary dismissal. The court held that the FWO's allegations of adverse action and coercion against union members had sufficient merit to warrant further proceedings. The court concluded that the AWU's interlocutory application should be dismissed, allowing the FWO's claims to proceed to trial. The court also noted that if the FWO sought costs for the unsuccessful interlocutory application, it should give notice within 7 days, and the court would invite submissions before deciding on any costs order.

The Federal Circuit Court dismissed the AWU's Amended Interlocutory Application dated 17 May 2016. The court granted the FWO liberty to apply for an order for costs within 7 days of the judgment. The FWO was also reminded to comply with Rule 39.32 of the Federal Court Rules 2011 regarding the entry of orders.

Orders

Orders of the court

1. The respondents’ Amended Interlocutory Application dated 17 May 2016 is dismissed.

2. The applicant have liberty to apply for an order for costs within 7 days hereof.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I am therefore not persuaded that the FWO has no reasonable prospect of success on this claim.CONCLUSION For the reasons given, the application for summary judgment must be dismissed. No indication has to date been given by the FWO that it would seek its costs if successful. That may be because of the hurdle imposed on the grant of a costs order by s 570 of the FW Act. However, if the FWO does seek its costs, notice of that application should be given within 7 days, in which case, I shall invite short written submissions before determining whether any costs order should be made.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	VID 266 of 2016
Judge:	BROMBERG J
Date of judgment:	17 May 2017
Catchwords:	PRACTICE AND PROCEDURE – summary dismissal – Federal Court of Australia Act 1976 (Cth), s 31A – whether the applicant has a reasonable prospect of successfully prosecuting the proceeding or a part of it INDUSTRIAL LAW – adverse action – Fair Work Act 2009 (Cth) (“FWA”), ss 340(1)(a) and 346 – whether action alleged was capable of amounting to a “disability of any kind” – (see below in relation to proper construction of “disability of any kind”) – whether the conduct of a member of an organisation, acting in his capacity as a member, could be said to be action taken by an agent acting within the scope of his actual or apparent authority for the purposes of s 793(1)(a) of the FWA – no basis on the facts pleaded for considering that there was apparent authority – it is arguable that if actual authority could be demonstrated, agency may be established even where the context negates the suggestion – whether the communication of a charge under the rules of a union and potential penalties could amount to a threat to take adverse action – meaning of “threatening to take action” in s 342(2) discussed – the communication of a threat, comprising an intent to inflict harm, must logically involve an objectively ascertainable basis for thinking that the person making the communication has the capacity to inflict the harm STATUTORY INTERPRETATION – proper construction of “imposes … disability of any kind” under Item 7(d) of s 342(1) of the FWA – whether “disability of any kind” was intended as a broad additional category of adverse action constituted by any form of prejudice, detriment or disadvantage – to impose a “disability” on a member is to subject the member to a restriction or other constraint which disables or incapacitates the member from doing something the member would otherwise be entitled to do INDUSTRIAL LAW – coercion – FWA, ss 343 and 348 – meaning of “intent to coerce” – extent to which the reversal of onus in s 361(1) applies to proof of an “intent to coerce” – whether authorities relating to adverse action under s 340(1)(a) which require an applicant to prove the fact of the “circumstance” said to form the reason for action are also applicable to coercion proceedings under ss 343 and 348 – where an applicant alleges coercion of union members to participate in protected industrial action – whether an applicant alleging such coercion is required to establish that protected industrial action was in prospect at the time coercive action was taken – if such a requirement exists the relevant foundational facts relate to the existence of the protected choice said to have been negated by the coercion – the prospect of protected industrial action will be relevant to but not determinative of the…