The Federal Court has fined a labour hire company that admitted after a Fair Work Ombudsman investigation that it refused to hire a married couple because they were not members of the MUA.
Justice John Gilmour fined Offshore Marine Services $7,500 after finding that the company, which supplies workers for jobs on offshore vessels in the oil and gas industry, had breached workplace laws by requiring MUA membership for employment.
Justice Gilmour said the couple had been “discriminated against and treated unfairly”.
The Fair Work Ombudsman initiated legal action against the company and the MUA, but the two cases are being heard separately.
The case involving the union will go to a directions hearing on September 20.
Justice Gilmour found that the company’s continued refusal to provide the couple with work between February and December 2009 meant that it had breached s792(1)(d) of the now defunct Workplace Relations Act and s346(a) of the Fair Work Act.
The court acknowledged that Offshore Marine Services had been pressured by the MUA to not offer employment to people that were not its members, but that this did not mean the company was not at fault.
“I accept that, in this regard, OMS faced not insignificant commercial pressure from the MUA. There is evidence that, if OMS had not complied with its demands, the MUA could have made commercial life very difficult for OMS with consequent significant adverse financial consequences for it.
“The fact that it was under such pressure does not mean that OMS is not liable for its conduct. It is. However, in assessing the overall criminality of the conduct, it is relevant to take into account the fact of the pressure.”
He said that the company was large, well-resourced and employed dedicated HR practitioners and, as such, “clearly was able to obtain competent legal advice about its obligations as an employer under Commonwealth workplace laws, and the importance of compliance”.
In determining the penalty, however, Justice Gilmour took into account that the company has since apologised to the couple and has put in place training for all new employees and crewing officers about unacceptable behaviour in the workplace “with emphasis placed on freedom of association”.
He said that there was no reason for specific deterrence in this case. “I nonetheless consider the imposition of a monetary penalty as carrying the greatest impact in terms of general deterrence.”
Fair Work Ombudsman v Offshore Marine Services Pty Ltd [2012] FCA 498 (17 May 2012)