Fair Work Ombudsman v Australian Workers' Union [2017] FCA 528

FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v Australian Workers' Union [2017] FCA 528 File number: VID 266 of 2016

Judge: BROMBERG J

Date of judgment: 17 May 2017

Catchwords: PRACTICE AND PROCEDURE – summary dismissal – Federal Court of Australia Act 1976 (Cth), s 31A – whether the applicant has a reasonable prospect of successfully prosecuting the proceeding or a part of it INDUSTRIAL LAW – adverse action – Fair Work Act 2009 (Cth) ("FWA"), ss 340(1)(a) and 346 – whether action alleged was capable of amounting to a "disability of any kind" – (see below in relation to proper construction of "disability of any kind") – whether the conduct of a member of an organisation, acting in his capacity as a member, could be said to be action taken by an agent acting within the scope of his actual or apparent authority for the purposes of s 793(1)(a) of the FWA – no basis on the facts pleaded for considering that there was apparent authority – it is arguable that if actual authority could be demonstrated, agency may be established even where the context negates the suggestion – whether the communication of a charge under the rules of a union and potential penalties could amount to a threat to take adverse action – meaning of "threatening to take action" in s 342(2) discussed – the communication of a threat, comprising an intent to inflict harm, must logically involve an objectively ascertainable basis for thinking that the person making the communication has the capacity to inflict the harm STATUTORY INTERPRETATION – proper construction of "imposes … disability of any kind" under Item 7(d) of s 342(1) of the FWA – whether "disability of any kind" was intended as a broad additional category of adverse action constituted by any form of prejudice, detriment or disadvantage – to impose a "disability" on a member is to subject the member to a restriction or other constraint which disables or incapacitates the member from doing something the member would otherwise be entitled to do INDUSTRIAL LAW – coercion – FWA, ss 343 and 348 – meaning of "intent to coerce" – extent to which the reversal of onus in s 361(1) applies to proof of an "intent to coerce" – whether authorities relating to adverse action under s 340(1)(a) which require an applicant to prove the fact of the "circumstance" said to form the reason for action are also applicable to coercion proceedings under ss 343 and 348 – where an applicant alleges coercion of union members to participate in protected industrial action – whether an applicant alleging such coercion is required to establish that protected industrial action was in prospect at the time coercive action was taken – if such a requirement exists the relevant foundational facts relate to the existence of the protected choice said to have been negated by the coercion – the prospect of protected industrial action will be relevant to but not determinative of the existence of the protected choice INDUSTRIAL LAW – accessorial liability – FWA, s 550 – whether a person may be accessorily liable for his own action taken to be the action of an organisation by the operation of either ss 363(1)(b) or 793(1)(a) of the FWA – where the organisation is the principal contravener because the conduct of a person is deemed to be the conduct of the organisation, it is arguable that the person may be accessorily liable for the conduct