The Federal Circuit Court has recently considered a workplace ban on employees accessing their accrued annual leave to participate in a union demonstration. The Court overturned the ban, after deciding that it was in violation of the general protections contained in the Fair Work Act 2009 (Cth) ("Act"), including employees' rights to access leave entitlements and to participate in industrial action.
Factual Background. Various unions, including the Electrical Trades Union of Australia ("ETU") had organised an Australia-wide demonstration to be held on 17 August 2015 to protest against the China–Australia free trade agreement. An email dated 7 August 2015, leaked from management, revealed that the employer planned on preventing the employees on Curtis Island from accessing annual leave on 17 August 2015 in order to attend the demonstration. The email stated that leave requests for that day were to be denied and that the employer does not "sanction or authorise any such activity", referring to the union demonstration planned for 17 August 2015. It also stated that any leave requests which had already been approved for that day were to be reversed.
Legal Background. The ETU argued that the proposed ban was a violation of the general protection provisions contained in the Act, claiming that the employer had taken adverse action against its employees for exercising their rights to access entitlements and to participate in industrial action.
Decision. The Court accepted the ETU's argument and overturned the employer's proposed ban on the basis that it was in breach of the general protection provisions contained in the Act.
As a result, the employer agreed to enter into undertakings with the unions to permit "non-essential" employees to take annual leave on the day of the demonstration. The employer also agreed not to prevent employees from attending the demonstration and not to reject annual leave requests on that basis, and to instead approve requests in accordance with normal company processes. In relation to the 17 August 2015 demonstration, this meant that the employer agreed to approve all requests for annual leave that had been submitted within a reasonable time, provided that the relevant employee had the leave available and subject to the employer's reasonable operational requirements.
Lessons for Employers. While industrial action can be disruptive to the workplace, employers should ensure that they are always upholding the general protections afforded to employees in the Act. In relation to industrial action, employers cannot ban access to annual leave and should instead adopt their usual processes when considering requests for leave to attend industrial action.
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