Quirk v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1587

FEDERAL COURT OF AUSTRALIA

Quirk v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1587 File numbers: NSD 1344 of 2017 NSD 1027 of 2018 NSD 1028 of 2018

Judgment of: PERRAM J

Date of judgment: 17 December 2021

Catchwords: INDUSTRIAL LAW – registered organisations – where First Respondent registered under Fair Work (Registered Organisations) Act 2009 (Cth) – where Applicants elected organisers of First Respondent – where Divisional Executive of First Respondent voted to remove Applicants for 'gross misbehaviour' under Rule 11 of Divisional Branch rules – where Applicants criticised Respondents in media and alleged serious misconduct and mismanagement – whether Rule 11 invalid – whether 'gross misbehaviour' included Applicants' conduct – appropriate standard of review INDUSTRIAL LAW – adverse action – whether Applicants' removal adverse action – whether Applicants' conduct in speaking to media exercise of a 'workplace right', 'industrial activity' or 'political opinion' – whether adverse action taken 'because' of those matters STATUTES – Fair Work Act 2009 (Cth) – interaction between s 363 and word 'because' in ss 340, 346 and 351 – where adverse action taken by vote – meaning of 'political opinion' in s 351 CONTRACTS – implied term that employment coextensive with Applicants' elected office – whether joint employment by First and Second Respondents – whether contract repudiated – appropriate relief

Legislation: Constitution s 117 Acts Interpretation Act 1901 (Cth) s 15A Fair Work Act 2009 (Cth) ss 12, 97, 340, 341, 342, 346, 347, 351, 361, 363, 386 Fair Work (Registered Organisations) Act 2009 (Cth) ss 5, 9, 140, 141, 142, 164, 164A, 164B Anti-Discrimination Act 1977 (NSW) Equal Opportunity Act 2010 (Vic) s 6 Workers Compensation Act 1987 (NSW) s 151A