In a very recent decision of the Federal Court, the Maritime
Union of Australia (MUA) had damages awarded against it of $482,000
and was ordered to pay a fine of $80,000 for refusing to allow a
couple to start work with a labour hire company. The labour hire
company that refused to place them was also fined.
A couple had sought employment with a labour hire company as
stewards on a ship.
The labour hire company, knowing the MUA's rigorous approach
to such matters, required them to join the Union before hiring
them. The Union refused their membership application because they
wanted preference to be given to existing members for the roles on
Hence, the couple missed out on the opportunity for the
LAW AND FINDINGS
The Union argued that it was legitimate for it to give
preference to union members.
The Court was completely unsympathetic to that argument and
found that the Union's behaviour was unlawful and obstructed
the right of the couple to find employment.
Accordingly, the couple were successful in seeking damages
totalling $800,000 against both the Union and the labour hire
The lessons from this are that:
unions are not above the law
employees do not have any obligation to be Union members
companies do not have an obligation to adopt a particular type
of enterprise agreement or follow any form of Union direction
(beyond their express rights – ie. right of entry and
In practice, of course, Unions exert practical power through
basic intimidation and the misuse of work, health and safety
legislation to obstruct company's operations where that company
is not bowing to Union demands. However, the risk of being sued is
real both for the Union and you – if you accede to Union
pressure to engage in unlawful conduct.
Furthermore, individual Union members can be joined as
respondents in proceedings making them potentially liable for
damages and potentially have their accreditation removed.
The best tactic in any proceedings where you want to resist
cooperation with a Union's unreasonable demands is to appear
mildly enthusiastic but be practically obstructive at the same
time, ie. "I'd love to cooperate but I could be
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.
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