McMaster v Qube Ports Pty Ltd [2015] FCA 1385

FEDERAL COURT OF AUSTRALIA

McMaster v Qube Ports Pty Ltd [2015] FCA 1385 Citation: McMaster v Qube Ports Pty Ltd [2015] FCA 1385

Parties: TORREN MCMASTER v QUBE PORTS PTY LTD

File number: VID 1162 of 2013

Judge: NORTH ACJ

Date of judgment: 4 December 2015

Catchwords: INDUSTRIAL LAW – Adverse Action – Dismissal – Exercise of workplace right under s 340(1)(a)(ii) and s 341(1)(c) of the Fair Work Act 2009 (Cth) – Exercise of workplace right under s 25 of the Occupational Health and Safety Act 2004 (Vic) – Exercise of workplace right to complain about safety – Exercise of workplace right to take reasonable care for own health and safety – Stevedore refusal to upgrade duties from Grade 3 to Grade 5 – Recognised and required competency – Work for which the employee is appropriately skilled – Right to refuse to upgrade under Qube Ports Pty Ltd (TT Line VIC & TAS) & Maritime Union of Australia Enterprise Agreement 2012 and Stevedoring Industry Award 2010 – Discrimination between employee and other employees of the employer – Adverse action contrary to s 342(d) of the Fair Work Act 2009 (Cth) – Reason for dismissal – Mistake of law – Mistake of law distinguished from mistake of fact – Employer acts for proscribed reason where employer has mistaken view about the law – Employer dismissed employee because employer made a mistake of law in concluding the employee did not have a workplace right – Ignorance of law no defence to action contrary to law – Knowledge of essential elements of factual basis of contravention

Legislation: Fair Work Act 2009 (Cth), ss 12, 340(1), 341(1), 342, 360, 361(1) Occupational Health and Safety Act 2004 (Vic), s 25