Transport Workers Union of Australia v Premier Motor Service Pty Ltd [2015] FCA 650

FEDERAL COURT OF AUSTRALIA

Transport Workers Union of Australia v Premier Motor Service Pty Ltd [2015] FCA 650 Citation: Transport Workers Union of Australia v Premier Motor Service Pty Ltd [2015] FCA 650

Appeal from: Transport Workers' Union of Australia v Premier Motor Service Pty Ltd [2014] FCCA 9

Parties: TRANSPORT WORKERS UNION OF AUSTRALIA v PREMIER MOTOR SERVICE PTY LTD

File number: NSD 366 of 2014

Judge: PERRY J

Date of judgment: 29 June 2015

Catchwords: INDUSTRIAL LAW – appeal from the Federal Circuit Court – where preliminary arrangement for employee to undertake charter bus work – where expectation that employee would undertake the work destroyed when employer subcontracted the work – where employer's reasons for subcontracting wrongly taken into account in deciding if adverse action – where decision to subcontract had real and substantial impact on employee's position to his prejudice – where destruction of expectation constituted adverse action against employee – where primary judge asked whether reason for subcontracting was dissociated from and did not include employee's participation in industrial activity – where primary judge applied the wrong test in finding in obiter that employer had not discharged reverse onus in s 361 of the Fair Work Act 2009 (Cth) – where participation in industrial activity not operative reason for subcontracting on primary judge's findings of fact – where removal of roster sheet system for allocating vacant rosters did not amount to adverse action

Legislation: Fair Work (Registered Organisations) Act 2009 (Cth) Fair Work Act 2009 (Cth) ss 336, 342, 346, 347, 360, 361, 409(1), 539(2) Workplace Relations Act 1996 (Cth) s 298K(1) Explanatory Memorandum, Fair Work Bill 2008 (Cth)