A FULL Court of the Federal Court has upheld a ruling ordering the Maritime Union of Australia (MUA) and its official Will Tracey to pay $215,000 in compensation and penalties to a group of workers labelled ‘scabs’.

The ruling relates to a poster which branded the employees of the Fremantle Port Authority ‘scabs’ for not participating in protected industrial action in 2011.

The poster contained a passage from the poem ‘Ode to a Scab’, purportedly authored by American author Jack London in the early 1900s.

“When a SCAB comes down the street, honest men turn their backs, the angels weep tears in heaven and the devil closes the gates of hell to keep them out.  No-one has a right to SCAB, as long as there is a pool of water deep enough to drown their body, or a rope long enough to hang their carcass with,” the poster read.

In his original 2014 decision which followed legal action taken by the Fair Work Ombudsman, Federal Court Justice Antony Siopis found the MUA took adverse action against the employees and later fined the union $80,000 and Will Tracey $15,000.

The MUA was also ordered to pay the employees compensation for emotional distress and fear experienced. Four of the employees were awarded $20,000 each while a fifth employee who did not work during industrial action but who was targeted for engaging with the four employees was awarded $40,000.

On appeal, the MUA challenged the finding that the employees were prejudiced ‘in’ their employment, as outlined under the meaning of adverse action in section 342(1) of the Act.

However, in their 11 August 2016 majority ruling dismissing the appeal, Justices Richard Tracey and Robert Buchanan said it was clear Justice Siopis ‘was comfortably satisfied that publication of the posters had achieved their intended effect – to act to the prejudice of the five employees – and that those intended effects were bound up with their employment.  It would be artificial to say that the prejudice was not in the employment’.

“The publication of the poster was clearly not intended to leave a neutral, or no, effect on the five employees.  On the contrary, it was intended to damage them.  The primary judge found that the intended effect was achieved in their employment.  In our view, the findings made by the primary judge provided more than adequate support for his findings that the appellants contravened s 346 of the FW Act.”

The union’s argument that the compensation and penalties were excessive was also dismissed by Justices Tracey and Buchanan.

In his minority ruling, Justice Mordecai Bromberg upheld all aspects of the ruling except for that relating to compensation, which he found was excessive and would have reduced to $7,500 for the non-striking employees and $10,000 for the fifth employee named on the poster.

While the circumstances are different, this decision draws similarities to a 2014 ruling by the High Court which found BHP Coal was justified in dismissing an employee (and CFMEU member) for holding up offensive ‘scab’ signs during industrial activity (read AMMA’s decision summary here).

Click here to read the Full Court of the Federal Court of Australia decision.

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