Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163 Appeal from: Quirk v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1587

File number: NSD 121 of 2022

Judgment of: RARES ACJ, KATZMANN AND COLVIN JJ

Date of judgment: 11 October 2023

Catchwords: INDUSTRIAL LAW – registered organisations – where trade union officials elected to office and employed under rules registered under the Fair Work (Registered Organisations) Act 2009 (Cth) – where officials charged with "gross misbehaviour" as an official under rule made pursuant to rule-making power in s 141(1)(c)(iii) of Act after criticising union in media including making allegations of serious misconduct and mismanagement – where charges determined in officials' absence after refusal of adjournment for ill health – where charges found proved and officials removed from office for gross misbehaviour purportedly under rule – whether removal invalid because officials not afforded opportunity of being present at hearing within rule – where right to appeal not exercised, whether failure to afford opportunity to be heard cured by availability of an appeal under rules – whether conduct subject of charges could not amount to "gross misbehaviour" because s 142(1)(c) operated to invalidate oppressive, unreasonable or unjust rule or use of rule to authorise charge – where, following removal from office, union terminated employment of elected officials – whether officials wrongfully dismissed from employment DAMAGES – employment contracts – whether union officials employed by union subsequently elected to four-year terms of office under rules requiring their employment by union remained on same contracts of employment after election or entered into new contracts – where employed officials invalidly removed from office and employment terminated before expiry of four-year term – whether employed officials entitled to damages equivalent to earnings for remainder of elected terms – whether damages should be reduced on account of unwillingness to perform work and pay union membership fees, failure to work for a significant period, overseas travel, receipt of social security payments and wages earned from other employment INDUSTRIAL LAW – adverse action – where union officials criticised union in media – whether adverse action taken against union officials because they engaged in "industrial activity" within the meaning of s 347(b)(iv) of the Fair Work Act 2009 (Cth) by failing to comply with requirement or request not to speak to media without prior approval – whether s 347(b)(iv) applies to requests made to, or requirements imposed on, employees of an industrial association by that association – whether s 347(b)(iv) limited to requests or requirements relating to an employee's freedom of association INDUSTRIAL LAW – adverse action – whether adverse action taken against union officials because of their political opinions in contravention of s 351(1) of the Fair Work Act 2009 (Cth) – whether the exception contained in s 351(2)(a) requires that conduct be "not unlawful" by reason of positive authorisation in anti-discrimination law or merely requires that conduct not be proscribed – principles relevant in determining place in which adverse action occurs – whether adverse action took place in New South Wales or Victoria INDUSTRIAL LAW – adverse action – whether union officials exercised a "workplace right" under s 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) in making complaints about governance of union to media– whether ability to make a complaint in relation to employee's employment required to be underpinned by law or be a right at law – whether criticisms of union to media are complaints made in relation to employee's employment INDUSTRIAL LAW – enterprise agreements – where enterprise agreement contained procedure to be followed when disciplinary action taken – where only one of two joint employers bound by enterprise agreement – where disciplinary action taken by other employer – whether necessary to determine whether enterprise agreement breached by employer bound by the enterprise agreement – whether contracts of employment contained an implied term incorporating by reference disciplinary procedure contained in enterprise agreement – whether disciplinary procedure engaged if employment terminated by employer not bound by enterprise agreement PRACTICE AND PROCEDURE – where cross-appellants pleaded ground of cross-appeal not pleaded at trial – whether point raised in closing submissions at trial where no explanation for failure to plead point at trial and little merit to the argument but no apparent prejudice to cross-respondents – whether expedient in interests of justice to grant leave to raise issue on cross-appeal