Most people accept the need for respect and conduct that
conforms with the basic tenets of civility in the workplace –
between employees; employer and employees; and generally. Well,
what about from union officials?
The Australian newspaper recently reported that an organiser
with the Maritime Union of Australia, Doug Heath, delivered an
'expletive-filled tirade' against a union member who
criticised his work. In a 2400-word email distributed to
colleagues, Mr Heath labelled the member 'gutless' 26
times, called him a 'snivelling grub' and several other
Mr Heath also wrote that he has 'been locked up by coppers
plenty of times in pursuit of industrial outcomes' and enjoys
spending 'all day, every day bluing with bosses.'
This incident begs the question of what employers can do when
confronted with obnoxious, offensive or otherwise objectionable
conduct by union officials in contexts including exercising a right
of entry or a bargaining meeting.
In Bechtel (Western Australia) Pty Ltd v Construction,
Forestry, Mining and Energy Union  FWC 2039, Deputy
President McCarthy of the Fair Work Commission suspended the entry
permit of a union official , Mr Brad Upton, who when exercising his
right of entry refused to hold his meeting with employees in the
permitted area and refused to leave the site when requested. The
decision records that Mr Upton also racially abused and threatened
the Deputy Employee Relations Manager for the project.
In reaching his decision, McCarthy DP referred to Munro J's
statement in Vivienne Daniels v Joe Patti that:
Permit holders exercise a power that causes them to
be exercising a public right and duty. Those rights, powers and
duty stem from the statute. Due diligence, reasonable civility, and
avoidance of unnecessary obstruction in the exercise of the powers
under Division 11A are not only to be expected, they are a
statutory condition of the powers being
McCarthy DP decided that Mr Upton had failed to comply with
'basic tenets of civility' and suspended Mr Upton's
entry permit for the remainder of 2013, which was a good result for
There are also good faith bargaining provisions that require
union officials engaged in bargaining for a proposed enterprise
agreement to afford proper recognition to other bargaining
representatives and refrain from unfair or capricious conduct.
Arguably, a union official who abuses another bargaining
representative will not satisfy the obligation to bargain in good
faith and might be vulnerable to a bargaining order being made
Would, for example, an email like the one reported by The
Australian take a union official outside of the basic tenets of
civility and thereby raise questions of whether they are meeting
the good faith bargaining requirements?
Employers should not have to put up with personally offensive or
aggressive behaviour by union officials. There may not be a defined
line dividing behaviour that attracts a remedy from behaviour that
does not. However, everyone is entitled to reasonable civility in
their dealings with others in the workplace, including from union
It is entirely reasonable for employers to consider what rights
they have if faced with conduct by union officials that does not
conform with the basic tenets of civility whether in a right of
entry or a bargaining context, and take action where they can to
protect themselves, their management, and their employees.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Most awarded firm and Australian deal of
Australasian Legal Business Awards
Employer of Choice for
Equal Opportunity for Women
in the Workplace (EOWA)
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).