Australian Meat Industry Employees' Union v Belandra Pty Ltd [2003] FCA 910

FEDERAL COURT OF AUSTRALIA

Australian Meat Industry Employees' Union v Belandra Pty Ltd [2003] FCA 910 INDUSTRIAL LAW – industrial relations – freedom of association – employer, closed down operation in July 2001 following fire with intention to reemploy workers when operation rebuilt – later decided not to reemploy – recommenced operations but contracted management company to manage – management company engaged labour-hire company to supply workers - labour-hire company offered workers employment under Australian Workplace Agreements – whether conduct of employer amounted to breach of Workplace Relations Act 1996 (Cth) ss 298K - 298L. INDUSTRIAL LAW – meaning of "employer" – whether first respondent was an actual employer – whether there was an absolute termination of employment in July 2001 – whether employees on WorkCover were not terminated – whether continued employment of WorkCover employees meant that first respondent was an actual employer – whether first respondent was usually an employer – whether general definition of employer in Workplace Relations Act 1996 (Cth) s4(1) applies to Part XA – proximity of employment. INDUSTRIAL LAW – conduct of employer - refusal to employ – whether first respondent refused to employ the workers – whether the applicant must demonstrate that there was a vacancy for there to be a refusal to employ – where employer contrives to have no vacancies by the contravening conduct itself. INDUSTRIAL LAW – conduct of employer - alteration to prejudice – whether the first respondent altered the position of the employees to their prejudice in breach of s298K(1)(c) when it decided not to reemploy – whether the employees had an expectation – whether expectation included reemployment on basis of seniority – whether prejudicial alteration to position must occur to employee's legal rights – whether prejudicial alteration to position can only occur if an employment relationship exists at the time of the alteration – whether conduct of employer must be directed at an individual employee. INDUSTRIAL LAW – prohibited reason for conduct – entitlement to the benefit of an agreement – whether the employees were entitled to the benefit of an agreement when decision not to reemploy them and/or prejudicial alteration to their position made – whether entitlement may be held by prospective of or previous employee – whether refusal to employ was because of entitlement. INDUSTRIAL LAW – prohibited reason for conduct – membership of an industrial association – whether first respondent refused to employ and/or altered employees' position to their prejudice because they were members of an industrial association – meaning of "membership" – whether s298L(1)(a) protects employees from victimisation merely for being a union member or also for the activities of the union as an incident of the employee being a member – whether statutory context suggests that scope of s298L(1)(a) is restricted to protection for holding a membership card – whether other subsections of s298L(1) exclude broader interpretation of s298L(1)(a) – expressio unius est exclusio alterius– obligations under international law - law of other jurisdictions. WORDS AND PHRASES – "actual employer", "usually an employer", "refuse to employ", "alteration of position to prejudice", "entitled", "member of an industrial association".