Construction union liable for sacking a socialist, The Australian Financial Review

By Alan J. McDonald

McDonald Murholme’s Senior Associate Andrew Jewell represented union worker, Muhammad Ali Sayed against the Construction, Forestry, Mining and Energy Union (CFMEU). Federal Court’s Justice Mortimer confirmed Mr Sayed was wrongfully dismissed due to his political views. The case established a new definition of what constitutes ‘political opinion’ in the Federal Court. See below article published in the Australian Financial Review for further details:

Construction union liable for sacking a socialist

The Construction, Forestry, Mining and Energy Union has been ordered to pay $3000 to a former employee after he was illegally sacked due to his political views.

The Federal Court case is understood to be the first adverse action case against a union.

Justice Debra Mortimer also established a new definition of what constitutes “political opinion”.

The Fair Work Act’s adverse action rules have been commonly wielded by unions against employers who are alleged to have dismissed or discriminated against an employee for exercising their right to union membership.

In this case, law graduate Muhammed Ali Sayed was sacked because of his socialist beliefs. Mr Sayed applied for a job as a trade union organiser with the CFMEU in early 2013.

The position was based in the Pilbara, Western Australia, where the union was formalising an alliance with the Australian Workers’ Union for a $1 million campaign to reunionise the iron ore industry, starting with Rio Tinto, the judgement said.

Not long after he started in WA, a complaint was made by then-AWU secretary Paul Howes to CFMEU national president Tony Maher that Mr Sayed was involved with the Socialist Alliance, that he was “a Trot” and was “bagging” AWU officials and delegates.

“The fact Mr Howes was the person making the complaint explains to a large extent why it was acted on so precipitously, and why the applicant was summoned in such an arbitrary fashion to ‘pack up’ and fly back across the country to deal with the complaint,” Justice Mortimer said.

CLAIM OF ‘DEROGATORY’ COMMENTS

Mr Sayed went to Sydney to deal with the complaint, where meetings were held with union officials including CFMEU vice-president Andrew Vickers and Mr Maher in July 2013.

Mr Vickers told Mr Sayed that Mr Howes had a problem with the Socialist Alliance whose policies were “destructive” and whose members sought to infiltrate and hijack unions.

“The Trots have a history of infiltrating progressive organisations and seeking to undermine them,” Mr Vickers told Mr Sayed.

Mr Sayed argued that his membership with the Socialist Alliance ended in 2011 because of his disillusionment with the party’s focus on elections rather than youth work. He was dismissed on July 26.

The union said its reasons included that Mr Sayed lied about the extent of his involvement with the Socialist Alliance and had used the term “rats” in the context of the labour movement and was “offensive and derogatory” about the union in some Facebook posts.

“If Mr Vickers put to one side the complaint by Mr Howes and the applicant’s involvement with the Socialist Alliance, as the law required him to do, in my opinion there was a range of possible outcomes, none of which was likely to involve the immediate termination of the applicant’s employment,” Justice Mortimer said.

Justice Mortimer ruled that a political opinion was held and manifested by “membership of a political party and engaging in activities associated with a political party”.

But the judge limited Mr Sayed’s compensation to $3000, saying he was unlikely in any case to have lasted more than six months in the Pilbara given that he was inexperienced with the union movement and with working in a harsh mining environment.

Mr Sayed’s lawyer, McDonald Murholme senior associate Andrew Jewell, said: “Mr Sayed has a right to have his own political opinion without affecting his employment.”

Reference: The Australian Financial Review, Construction union liable for sacking a socialist, 9th February 2015.