Qube Ports Pty Ltd v McMaster [2016] FCAFC 123

FEDERAL COURT OF AUSTRALIA

Qube Ports Pty Ltd v McMaster [2016] FCAFC 123 Appeal from: McMaster v Qube Ports Pty Ltd [2015] FCA 1385

File number: VID 253 of 2016

Judges: ALLSOP CJ, JESSUP AND BROMBERG JJ

Date of judgment: 9 September 2016

Catchwords: INDUSTRIAL LAW – Fair Work Act 2009 (Cth), s 340(1) – appeal of primary judge's holding that adverse action was taken because of the exercise of a workplace right – where respondent employee refused a direction to 'upgrade' and perform the work of a higher grade – where appellant employer dismissed the employee for reasons including the employee's refusal to upgrade – whether primary judge erred in construing the applicable enterprise agreement as providing the employee a workplace right to refuse to upgrade – the enterprise agreement authorised the employer to require an employee to perform work within the employee's recognised competency and for which the employee was appropriately skilled – the employee had no workplace right to refuse to upgrade – appeal allowed

Legislation: Fair Work Act 2009 (Cth) ss 340, 341, 360, 361

Cases cited: BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (2013) 219 FCR 245 Board of Bendigo Regional Institute of Technological and Further Education v Barclay (2012) 248 CLR 500 Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150 Musgrove v Murrayland Fruit Juices Pty Ltd (1980) 47 FLR 156 National Wage Case August 1989 (1989) 30 IR 81 National Wage Case February 1989 Review (1989) 27 IR 196 Ostrowski v Palmer (2004) 218 CLR 493 Qube Ports Pty Limited (TT Line VIC & TAS) & Maritime Union of Australia Enterprise Agreement 2012 JJ Macken, Award Restructuring (Federation Press, 1989) Stevedoring Industry Award 2010