Maritime Union of Australia v Burnie Port Corporation Pty Ltd [2000] FCA 1189

FEDERAL COURT OF AUSTRALIA

Maritime Union of Australia v Burnie Port Corporation Pty Ltd [2000] FCA 1189 INDUSTRIAL LAW - Freedom of Association - decision taken by respondent to require applicants for employment to enter into AWA as condition of engagement - where wages and working conditions would otherwise be prescribed by a certified agreement and unsuccessful applicant foreshadows refusal to enter into an AWA - whether that applicant "entitled to the benefit" of the certified agreement although no employment relationship results - whether prohibited reason for refusal to employ - whether sufficient to show prohibited reason for refusal is substantial and operative - where employment prospects in relevant region are limited - whether offer of employment only to applicants who enter into an AWA is an application of duress. PRACTICE and PROCEDURE - jurisdiction to grant injunctive relief - whether exercise of jurisdiction dependent upon competent application. CONSTITUTIONAL LAW - State immunity - whether requirement of entry into AWA as precondition to employment as a breach of Federal Act impinges on the ability of employer to determine the number and identity of those whom it wishes to employ. WORDS & PHRASES - "entitled to the benefit", "apply duress" Workplace Relations Act 1996 (Cth) ss 49(2), 170VK, 170VV, 170VZ, 170WG, 170XE, 298B, 298C, 298F, 298G, 298K, 298U, 412 Tasmanian Marine Act 1976 (Tas) Port Companies Act 1997 (Tas) s 7 Industrial Relations Act 1988 (Cth) s 334(2) Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 Independent Education Union of Australia v Canonical Administrators, Barkly Street, Bendigo (1998) 157 ALR 531 Schanka v Employment National (Administration) Pty Ltd [2000] FCA 202; (2000) 170 ALR 42 Tesco Ltd v Nattrass [1972] AC 153 Fraser v Fletcher Construction Australia Ltd (1996) 70 IR 117 Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1188; (unreported, FCA, 24 August 2000) Leontiades v FC Mansfield Pty Ltd (1980) 43 FLR 193 Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 165 ALR 67 R v Graziers' Association of New South Wales (1964) 112 CLR 619 Moss v Fantil Pty Ltd (1994) 58 IR 118 CFMEU v BHP Steel (AIS) Pty Ltd [2000] FCA 1008; (unreported, FCA, 27 July 2000) Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192 Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188 Victoria v Commonwealth (1996) 187 CLR 416 at 498 MARITIME UNION OF AUSTRALIA v BURNIE PORT CORPORATION PTY LTD V 467 OF 1999