Australian Red Cross Society v Queensland Nurses' Union of Employees [2019] FCAFC 215

FEDERAL COURT OF AUSTRALIA

Australian Red Cross Society v Queensland Nurses' Union of Employees [2019] FCAFC 215 Appeal from: Queensland Nurses' Union of Employees v Australian Red Cross Society & Ors [2018] FCCA 3471 Queensland Nurses Union of Employees v Australian Red Cross Society & Ors [2019] FCCA 706

File number: QUD 934 of 2018

Judges: GREENWOOD, BESANKO AND RANGIAH JJ

Date of judgment: 3 December 2019

Catchwords: INDUSTRIAL LAW — appeal from orders made by a judge of the Federal Circuit Court of Australia — where an employee of the first appellant engaged in protected industrial action — where the primary judge found that the first appellant took adverse action in contravention of s 340(1)(a) of the Fair Work Act 2009 (Cth) and that the second and third appellants were involved in those contraventions — where primary judge made orders with respect to compensation and pecuniary penalties INDUSTRIAL LAW — where primary judge found that each appellant had knowledge that the employee had engaged in protected industrial action — whether knowledge is a pre-condition to the engagement of the presumption in s 361 of the Act — consideration of the elements to be established in order to engage s 361 of the Act — whether the primary judge considered all of the evidence relevant to knowledge — whether this Court can assess and weigh the relevant evidence — whether it is appropriate in the circumstances to order a retrial

Legislation: Conciliation and Arbitration Act 1904 (Cth) s 5 Fair Work Act 2009 (Cth) ss 340, 360, 361, 550, 793

Cases cited: Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 261 FCR 347 Australian Building and Construction Commissioner v Hall [2017] FCA 274; (2017) 269 IR 28 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 1) [2012] HCA 32; (2012) 248 CLR 500 Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; (2015) 230 FCR 298 Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014; (2015) 253 IR 166 Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804; (2001) 129 IR 251 Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189; (2004) 140 FCR 17 General Motors-Holden's Pty Ltd v Bowling (1976) 51 ALJR 235 Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99; (2016) 248 FCR 18 Tattsbet Ltd v Morrow [2015] FCAFC 62; (2015) 233 FCR 46