FairWork Ombudsman v Maritime Union of Australia and
Tracey Decision of Siopis J, 6 May 2014
In this case the Fair Work Ombudsman had taken proceedings
against the union and a union organiser as a result of the
treatment of four employees, including calling them and referring
to them as "scabs", because of their resistance to taking
action to in a strike. The claim involved the proposition that
penalties should be paid under s346(c) and 348 of the Fair Work
Act. Section 348 involved a civil penalty.
Of interest to those involved in damages litigation is the
question of whether there was the prospect of an award of damages
being made to the complainant parties. The provisions under which
that award might have been made were sections 545(1) and 545(2)(b)
of the Act. The question was whether the adverse action prejudiced
the named employees in their employment (item 7b of s342(1)) and if
so the value of that prejudice.
Elements of the claim included damages to reputation, reducing
the prospect of the claimants obtaining work with another employer,
subjecting them to fear and psychiatric or psychological
On the evidence, the claim against Tracey that his conduct
sought to coerce the complainants was dismissed. On the question of
whether the "scab" poster action by Mr Tracey was
illegitimate, unconscionable or unlawful, it was found that it was
On the question of responsibility for this action, the MUA
agreed that Mr Tracey acted within his apparent authority. His
Honour found on the evidence that the MUA was directly liable for
the contravention of s346 of the Act in respect of Mr Tracey's
"scab" poster action.
Submissions were then made in regard to penalty and
compensation. In regard to compensation submissions were made to
His Honour on the question of whether Part 2 of the Civil Liability
Act 2002 WA would limit the power of the court to award
compensation for personal injury under s45 of the Fair Work Act.
The submissions had been made on the assumption that the court
would find that each of the named employees had suffered
psychiatric damage, however His Honour did not make such a
His Honour concluded by inviting the parties to make submissions
on the question of whether on the basis of the findings that were
made, any compensation and if so the quantum thereof was payable to
the employees, as well as the effect of part 2 of the Civil
Disappointingly for those particularly interested in the
question of the possible extension of a cause of action under the
Fair Work Act to the arena of recovery of damages, after
356 paragraphs of a very carefully considered decision, His Honour
was not able to or required to make findings at that time on the
question of compensation and jurisdiction. A further adjudication
on these issues is awaited.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Kott Gunning is a proud member of
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).