Employment Advocate v National Union of Workers [2000] FCA 710

FEDERAL COURT OF AUSTRALIA

Employment Advocate v National Union of Workers [2000] FCA 710

INDUSTRIAL LAW – freedom of association under Part XA of the Workplace Relations Act 1996 employee declines to join union – conduct by officer of union – officer in conversation with an employer sought removal of a casual employee from worksite – "advise, encourage, or incite" – whether advice etc if taken would have injured the employee in his employment or altered the position of the employee to his prejudice – reasons for conduct in contravention of Part XA – whether conduct of officer based upon prohibited reason – whether advice etc if acted upon would have been for a prohibited reason – standard of proof under Part XA – operation of reverse onus provision – whether conduct of officer attributable to union WORDS AND PHRASES – "advise, encourage or incite" Workplace Relations Act 1996 (Cth) ss83BA, 298T, 298P(3)(a), 298K(1), 298L(1)(b), 298U, 298A, 298B, 298V, 298Y Acts Interpretation Act 1901 (Cth) s 15AA Conciliation and Arbitration Act 1904 (Cth) ss 8, 138(1), 144A, 5(4) Commonwealth Electoral Act 1918 s 329A Industrial Relations Act 1988 (Cth) Industrial Arbitration Act 1940 (NSW) s 95 Crimes Act 1958 (Vic) s 2A Black's Law Dictionary (7th edition) Glanville Williams' A Textbook of Criminal Law (2nd edition) Australian Commonwealth Shipping Board v Federated Seamen's Union of Australia (1925) 35 CLR 462 cited Briginshaw v Briginshaw (1938) 60 CLR 336 considered Mikasa (N.S.W) Pty Ltd v Festival Stores (1972) 127 CLR 617 referred to Waugh v Kippen (1986) 160 CLR 156 cited G v H (1994) 181 CLR 387 cited Langer v Commonwealth (1995/1996) 186 CLR 302 distinguished IW v City of Perth (1997) 191 CLR 1 cited Newcastle City Council v GIO General Limited (1997) 191 CLR 85 cited Patrick Stevedores No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 followed GTS Freight Management Pty Ltd v TWU (1990) 25 FCR 296 distinguished Bowling v General Motors Holden (1975) 8 ALR 197 considered General Motors Holden v Bowling (1976) 12 ALR 605 considered Ansett v Australian Air Pilots Federation (1989) 95 ALR 211 approved Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 cited Beach Petroleum NL v Johnson (1993) 115 ALR 411 cited Independent Education of Union of Australia v Canonical Administrators (1998) 157 ALR 531 considered Maritime Union of Australia v Geraldton Port Authority [1999] 165 ALR 67 considered David's Distribution Pty Ltd v National Union of Workers (1999) 165 ALR 550 considered Bennett v Milliner (1959) 1 FLR 312 considered Moore v Doyle (1969) 15 FLR 59 referred to Cuevas v Freeman Motors Ltd (1975) 25 FLR 67 referred to Roberts v GMH Employees' Canteen Society (1975) 25 FLR 415 applied Heidt v Chrysler Australia Ltd (1975) 26 FLR 257 referred to Wood v Lord Mayor City of Melbourne (1979) 41 FLR 1 distinguished Linehan v Northwest Exports Pty Ltd (1981) 57 FLR 49 applied Blair v Australian Motor Industries Ltd (1982) 61 FLR 283 considered Mayne Nickless Ltd v TWU [1998] FCA 984 considered National Union of Workers v Davids Distribution Pty Ltd [1998] FCA 1530 (North J) referred to Employment Advocate v Transport Workers Union and Others [1998] FCA 1646 (Cooper J) considered CFMEU v Coal and Allied Operations Pty Ltd [1999] FCA 1531 (Branson J) considered Australian Workers' Union v BHP Iron Ore Pty Ltd [2000] FCA 39 considered Australian Colleries Staff Association v BHP Coal Pty Ltd [2000] FCA 318, (Spender J) considered BHP Iron Ore Pty Ltd v Australian Workers Union [2000] FCA 430 distinguished AMACSU v Ansett Australia Ltd [2000] FCA 441 (Merkel J) considered AMIEU v G & K O'Connor Pty Ltd [2000] FCA 627 (Gray J) Squires v Flight Stewards Association of Australia (1982) 2 IR 155 applied Hammond v Department of Health (1983) 6 IR 371 distinguished AMIEU v Gilbertson Queensland Pty Ltd (1988) 26 IR 237 considered Kelly v CFMEU (No. 3) (1995) 63 IR 119 considered and distinguished Health Services Union of Australia v Tasmania (1996) 73 IR 140 considered Kimpton v Minister of Education (Industrial Relations Court of Australia, unreported, North J, 22 February 1996) cited United Firefighters Union of Australia v Country Fire Authority (Industrial Relations Court of Australia, unreported, North J, 24 December 1996) referred to CEPU v Woodside Heating & Ors Dec 738/97 (Australian Industrial Relations Commission, unreported, decision 738/97, 27 June 1997) considered Pelly v The Queen (1994) 13 WAR 372 cited Bulle v the Queen (1984) Tas R 209 cited Dimozantos v R (1991) 56 A Crim R 345 approved Childs v Metropolitan Transport Trust (1981) IAS Current Review 946 considered Taff Vale Railways v Amalgamated Society of Railway Servants [1901] AC 426 referred to R v Most (1881) 7 QBD 244 referred to Giblan v National Amalgamated Labourers' Union [1903] 2 KB 600 referred to Race Relations Board v Applin [1973] QB 815 cited EINFELD J 29 MAY 2000 SYDNEY