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 profanity-laden names.

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 [2013] 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 retained.'

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 the employer.

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 against them.

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 officials.

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.

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