Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as The Australian Manufacturing Workers' Union (AMWU) v McCain Foods (Aust) Pty Ltd [2012] FCA 1126

FEDERAL COURT OF AUSTRALIA

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as The Australian Manufacturing Workers' Union (AMWU) v McCain Foods (Aust) Pty Ltd [2012] FCA 1126 Citation: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as The Australian Manufacturing Workers' Union (AMWU) v McCain Foods (Aust) Pty Ltd [2012] FCA 1126

Parties: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS' UNION (AMWU) and PAUL LAVERY v MCCAIN FOODS (AUST) PTY LTD (ABN 96 000 629 587)

File number: VID 721 of 2012

Judge: BROMBERG J

Date of judgment: 16 October 2012

Catchwords: INDUSTRIAL LAW – freedom of association – ss 340, 346 and 361 of Fair Work Act 2009 (Cth) – dismissal of union delegate – interlocutory application seeking reinstatement pending trial – strength of prima facie case – whether adverse action taken by reason of industrial activities of delegate – balance of convenience – whether and to what extent concern for health and safety of other employees should be weighed in the balance – whether reinstatement is appropriate on condition that a behavioural protocol be observed – whether delegate should be reinstated to employment in a different position.

Legislation: Fair Work Act 2009 (Cth) ss 340(1), 346, 347, 361, 545(2)

Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 86 ALJR 1044 Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 General Motors-Holden's Pty Ltd v Bowling (1976) 51 ALJR 235; 12 ALR 605 Police Federation of Australia v Nixon (2008) 168 FCR 340 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2012] FCA 563 Construction, Forestry, Mining and Energy Union v Downer EDI Engineering Power Pty Ltd [2012] FCA 661 Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539 Quinn v Overland (2010) 199 IR 40 Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union v Eaton Electrical Systems Pty Ltd (2005) 139 IR 260 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2011) 212 IR 306 Communications, Electrical, Electronic, Energy, Information, Postal and Allied Services Union of Australia v Dee Vee Pty Ltd [2012] FCA 988 Transfield Construction Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union [2002] FCA 1413 Lewis Construction v Martin (1986) 70 ALR 135 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 77 FCR 478 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1