Vicarious liability for adverse action and general protections’ breaches

The CFEU has been fined and ordered to pay compensation to an employer which was threatened by a senior organizer with “being put out of business” to coerce it to hire a particular scaffolder. The conduct was found by the Federal Court (Jessup J) to contravene sec 355 of the Fair Work Act and the union was held vicariously liable under sec 793 of the Act for its organizer’s actions because “It is established on the pleadings that, relevantly to the facts of the case, Mr Edwards was acting in his capacity as an officer of the union, and was so acting within the scope of his actual or apparent authority for or on behalf of the union. This is, in my view, sufficient to attract the operation of subss (1) and (2) of s 793 of the FW Act. For the reasons I have given, I hold that, by the operation of ss 363 and 793 of the FW Act, the union contravened ss 355 and 346 of that Act to the same extent as Mr Edwards did.”

Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2015) FCA 1125 delivered 23 October 2015