THE Maritime Union of Australia has failed to defend against claims of unlawful adverse action, after the Federal Court last week decided that enforcing union membership as a prerequisite of employment constitutes unlawful adverse action.
In 2009, two jobseekers were attempting to gain employment with an AREEA member in the offshore oil and gas maritime support industry and on several occasions were denied due to a pre-existing arrangement between the MUA and the company dictating that eligible candidates must have union membership.
In an effort to resolve the issue, the couple applied for union membership in February 2009 but were rejected for unknown reasons. Additionally, the MUA was believed to have reprimanded the company for directing the jobseekers to pursue membership.
The MUA instead continued to pressure the company to hire from the MUA’s database of ‘beached’ members available to be placed on ships.
The Fair Work Ombudsman commenced legal proceedings against both the AREEA member company and the MUA for ‘closing shop’ on the candidates in breach of adverse action provisions in the former Workplace Relations Act, now the Fair Work Act.
Justice John Gilmour rejected claims made by the MUA that the memo denying employment to non-union members, reading “at no point is the Person employed prior to having a [MUA] union membership”, constituted a practice. On the issue, Justice Gilmour said:
“That it was not always followed does not mean that it was not a practice. Indeed, it was when, on occasions, the MUA through various of its Western Australian officials perceived that the practice was not being followed, that offensive and bullying communications were made on behalf of the MUA to enforce compliance with the practice.”
Subsequently, the Court accepted evidence from the company that abusive language and threats to stop or disrupt work on company vessels followed attempts to hire non-union members, which Justice Gilmour noting that compliance with MUA demands “was the price [the company] felt it had to pay to run its business.”
Nonetheless, both the vessel company and the MUA were found in breach of the Fair Work Act and parties will be heard separately on penalties.
Implications for Employers
This case highlights that AREEA members can be prosecuted and fined under the Fair Work Act for restrictive recruitment practices, accounting to adverse action, regardless of the level of intimidation and influence applied by a trade union.
In many ‘real-world’ circumstances in our industry, maritime companies are often forced to balance the delicate relationship between fulfilling legal obligations under the Act to not discriminate against job candidates on basis on union membership, and to mitigate the commercial risks of illegal industrial actions by the MUA.
In this case, unfortunately, the outcome was successful prosecution of both the MUA and AREEA’s maritime member company.
The AREEA employee relations team can provide expert advice and support in negotiating trade agreements and managing adequate working relationships with trade unions. To ensure workplace practices conform to legal requirements, contact your local AREEA office and speak to one of our employee relations consultants.
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