Federal Court upholds MUA ‘scab poster’ decision

by Miklos Bolza12 Aug 2016
The Full Court of the Federal Court has upheld a prior decision ordering the Maritime Union of Australia (MUA) to pay $215k in penalties and compensation after material describing certain workers as “scabs” was handed out at a 2011 workers strike at Fremantle Port.
The union, together with the assistant secretary of the MUA’s Western Australian branch William Tracey, handed out posters branding workers refusing to picket as “scabs”.
No one had “a right to SCAB” to long as drowning or hanging was an option, the posters said, adding that those branded scabs were “marked for life”.
In response, the Fair Work Ombudsman took legal action. In 2014, Federal Court Justice Antony Siopis found that the distribution of this material breached adverse action provisions in the Fair Work Act.
Siopis described it as an “act of vengeance” which meant targeted workers feared for their safety and that of their families.
The MUA was penalised $80k while Tracey was ordered to pay a further $15k. The court also ordered an additional $120k to be paid to the five workers described as scabs for the emotional distress they suffered.
While the MUA and Tracey appealed this decision, they were rejected by the Federal Court. Justices Richard Tracey, Robert Buchanan and Mordecai Bromberg upheld both the ruling and penalties.
“It is apparent that the intent of distributing the posters, quite apart from their natural tendency to engender fear for the personal safety of the persons concerned, and the safety of their families and even their property, was to severely diminish the standing of the targets with their fellow employees, then and in the future,” Justices Tracey and Buchanan wrote in the final judgment.
In addition to generating “emotional distress and a feeling of marginalisation,” the posters also created a “fear in the workplace” that violence would be meted out upon the branded employees, the judges found.
Fair Work Ombudsman Natalie James said the decision to dismiss the appeal sent a clear message against this type of action.
"The law protects the right of workers to choose whether to take industrial action and or not to," she said.
"Punishing a worker for exercising that choice, whether that be an employer terminating or otherwise negatively impacting them in their job or a union calling for members to shame or exact vengeance against them is completely unacceptable conduct that will not be tolerated.”
Related stories:
Union hit with $720K pay-out after preventing employment of non-members
“Depraved” MUA is first union to face legal action for bullying
Courts divided over “scabs” with “no guts” dismissal


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