Unions are not above the law

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In Brief

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. 

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The Facts

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 the ship.

Hence, the cou­ple missed out on the oppor­tu­ni­ty for the (lucra­tive) roles.

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 company.

Lessons

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 WH&S)

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 sued”.