“It is sometimes thought, in the traditional union movement at least, that to label someone a scab is the worst insult that can be given. At a minimum, it is a call to shame and ostracise that person. It signifies that they have been guilty of unforgiveable, and unredeemable, treachery which will blight their reputation forever.” So begins the recent judgment of Tracey and Buchanan JJ in Maritime Union of Australia v Fair Work Ombudsman  FCAFC 102.
A strike organised by the MUA had failed in its objective of shutting down the Port of Fremantle because several former members of the MUA continued to work. They were named as ‘scabs’ and ‘lowlifes’ in a poster that included Jack London’s ‘Ode to a Scab’ – a polemic that opens with ‘After God made the rattlesnake, the toad and the vampire, he had some awful substance left over, with which he made a SCAB’, and continues in the same vein.
The ‘Ode’ was written in 1915, and since then has acquired a rich legal history. In Letter Carriers v Austin 418 US 264 (1974), the United States Supreme Court accepted that it defined the meaning of ‘scab’, described it as ‘rhetorical hyperbole, a lusty and imaginative expression of the contempt felt by union members towards those who refuse to join’, and held that ‘such exaggerated rhetoric was commonplace in labor disputes and protected by federal law’. In CFMEU v BHP Coal Pty Ltd (No 3) (2012) 228 IR 195 the CFMEU tendered the ‘Ode’ to prove the place that ‘scab’ had acquired in trade union vernacular, and at  Jessup J relied on it to find that ‘the description of a worker as a scab, and as bereft of both principles and guts, because he or she chose the course of continuing to work during protected industrial action … was offensive, and that the language involved in such a description was offensive and abusive.’ On appeal, in BHP Coal Pty Ltd v CFMEU (2013) 219 FCR 245, Dowsett J described it at  as ‘common abuse’.
Apart from the intersection of literature and the law, Maritime Union of Australia v Fair Work Ombudsman is also interesting for its approach to s.346(c) of the Fair Work Act 2009. In the primary proceedings the publication of the poster was held to have prejudiced the workers named in it ‘in their employment’. The Full Federal Court upheld that finding.
At  and  Tracey and Buchanan JJ expressly rejected as too narrow the argument that the concept of ‘in the person’s employment’ should be confined to ‘the relationship with an employer and to objectively apparent longer term, or ongoing, diminution in incidents or benefits of employment.’ Critical to their Honour’s reasoning was the primary judge’s finding that the publication of the poster had been intended to ‘cause fear, emotional harm and distress to [the named workers] in their employment’, and that it had achieved that object. The result was that, because of the publication of the poster, ‘each named employee attended work with an underlying apprehension and fear that a co-worker … would visit violence upon him, whilst at work, or upon him and/or his family after work, or upon his property.’ Tracey and Buchanan JJ held at  that ‘it seems to be clear that the primary judge was comfortably satisfied that publication of the posters had achieved their intended effect – to act to the prejudice of the five employees – and that those intended effects were bound up with their employment. It would be artificial to say that the prejudice was not in the employment.’ (my emphasis) In doing so, their Honours invoked the wider conception of the value of employment discussed in Quinn v Overland (2010) 199 IR 40 at  and Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539 at .
The other member of the Full Court, Bromberg J, agreed, but with a slightly different perspective. His Honour held at  that fear and distress that is both experienced in the employment, and arises from it, can constitute a prejudicial alteration to ‘the non-pecuniary advantage of a safe work environment.’