Transport Workers Union of Australia v Premier Motor Service Pty Ltd

The case of Transport Workers Union of Australia v Premier Motor Service Pty Ltd was heard by the Federal Court of Australia. The dispute concerned whether Premier Motor Service Pty Ltd had taken adverse action against an employee, Mr Cole, when it decided to subcontract charter bus work instead of having Mr Cole undertake it. The Transport Workers Union of Australia (TWU) argued that this decision constituted adverse action, while Premier contended that the decision was based on operational reasons unrelated to Mr Cole's industrial activities.

The court had to determine whether Premier's decision to subcontract the charter work constituted adverse action under the Fair Work Act 2009 (Cth). The primary judge had ruled that there was no adverse action because the charter work had ceased to exist as work at Premier due to the operational decision to subcontract it to another provider. The court examined whether the primary judge correctly applied the legal test for adverse action and if the reasons provided by Premier for subcontracting the work were genuinely operational and unrelated to Mr Cole's industrial activities.

In its reasoning, the court found that the primary judge had applied an incorrect test when considering whether Premier had discharged the reverse onus under section 361 of the Fair Work Act. The court noted that the primary judge had not adequately considered whether the reason for subcontracting, namely the shortage of available drivers, was dissociated from and did not include Mr Cole’s participation in industrial activity. Given the primary judge's findings that the operative reason for subcontracting was not related to Mr Cole’s industrial action, the court held that Premier had discharged its burden of proof. Furthermore, the court held that the removal of Mr Cole's name from the roster sheet did not constitute adverse action as the work was effectively declined by Premier as a business decision rather than being taken from Mr Cole.

The appeal was dismissed, and the question of costs of the appeal was reserved. This outcome clarified the legal test for determining adverse action in the context of subcontracting work and reinforced the importance of correctly applying the statutory provisions when assessing such claims.