The Full Court yesterday handed down a decision that hardens the test that employers must meet to defend claims that they have acted 'adversely' against staff who are performing activities as union officials.
The President of the sub-branch of the Bendigo Regional Institute of Technical and Further Education (BRIT), who was also a staff member, sent an email to members of the Australian Education Union (AEU) employed by BRIT. In it he claimed that the activities of BRIT in preparing for reaccreditation, according to some members, had led to members being asked to produce false and fraudulent documents for the audit. He encouraged staff not to agree to be part of any fraudulent activity.
Through its CEO, BRIT wrote to the union delegate, Mr Barclay, and stated that disciplinary action against him may be warranted because he raised the allegations via a broadly distributed email, he had not reported the incidents of alleged improper conduct to his manager and had failed to provide details of these allegations or the names of staff who claimed that such activities were taking place when asked to do so. It was also alleged that he may have breached the Code of Conduct for Victorian public sector employees. He was suspended from work with pay and denied internet access because of concerns that he might reoffend and thus damage the reputation and probity of BRIT.
Division 3 of Part 3-1 of the Fair Work Act 2009 (Cth) (FW Act) provides that a person (employer) must not take 'adverse action' against another person (staff member) because that other person, amongst other things, is a member or officer of a union or engages in industrial activity. The onus of proof is on the person who allegedly takes the adverse action to show that the action was not taken because of the other person's status as a union member of officer or because the person engaged in industrial activity.
Whilst there was some discussion in this case about what adverse action had been taken by BRIT, there was agreement that the suspension of the staff member amounted to adverse action, eg it injured the staff member in his employment. However, the Court did not determine whether the threat to take disciplinary action was in itself adverse action.
The crux of the case was whether BRIT had taken adverse action because the staff member was a union official and/or because the staff member had engaged in lawful industrial activity.
Single judge decision
In the first instance, Justice Tracey concluded that the CEO did not act because the staff member was a union official or was engaged in lawful industrial activity, but because of the CEO's concerns about the statements contained in the email and its effect on BRIT's reputation. Therefore, BRIT made out the defence that its actions were not because ofthe staff member's union activity.
Full Court of the Federal Court
In a detailed judgement, the majority of the Full Court (Justices Gray and Bromberg) held that the test was not whether the person taking the adverse action had intended to take adverse action because of the staff member's status or union activity but whether, based on the facts, this was a reason why the action was taken.
They concluded that the CEO had taken action against the staff member because of the email that was sent. In their view, that email was sent by Mr Barclay in the exercise of his functions as an officer of the AEU. Accordingly, whatever may have been the actual intentions of the CEO, she took adverse action in response to Mr Barclay exercising his powers as a union official. Even if he had overstated the nature of the complaints, his failure was not as a staff member but as a union official.
The dissenting judge, Justice Lander, held that the test was whether the person taking the adverse action did so because that other person was a union delegate or engaged in lawful industrial activity. In his view such a contravention of the FW Act was not proven by simply establishing that adverse action was taken whilst the union official was engaged in lawful industrial activity. The contravention was only established if in fact that was a reason for taking adverse action. He concluded that the finding of the primary Judge about the intentions of the CEO should stand to the effect that that was not the reason for taking the action.
Implications for employers
This decision means that an employer will rarely be able to take disciplinary or any such adverse action against a staff member in relation to a lawful industrial activity or in relation to such activity taken in the capacity of a union representative or member. If a staff member engages in industrial activity that is unlawful and is then the subject of disciplinary action, it is probable that the staff member will not be protected by the FW Act. However, the scope of what is lawful industrial activity is wide.
A union official who engages in any activity in their capacity as a staff member can be treated likeother staff members if they act in a manner that warrants admonition or disciplinary action.
There are wider implications for this decision in generally determining the connection between whether 'adverse action' taken against a staff member is connected to the staff member's 'workplace right' (which is separate to any protection given for lawful industrial activity) . Such a workplace right can include the right to make a complaint or enquiry about employment. It may not be sufficient for an employer to assert or even to have theirassertions accepted, as in this case, that the so called adverse action had no connection with the workplace right. If on an objective basis there is that connection, then the employer may be in breach of the FW Act.
A breach can result in a penalty of up to $33,000, compensation (plus interest) and any other order that the Court deems appropriate, such as reinstatement. It is wide power, and in this case the Federal Court has clarified the width of it.
This case does not mean that union representatives are members of an untouchable class in the workplace. However, as long as their activities are lawful, any attempt to rein them in while acting in their capacity as union representative will potentially result in a breach of the FW Act.
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