What are industrial activities?

See Fair Work Act s.347

The Fair Work Act 2009 provides protections in relation to a person’s freedom of association and participation or non-participation in industrial activities. The protections revolve around the right to engage or not engage in certain industrial activities – namely, being a member or officer of an industrial association or engaging in activities of industrial associations. The Fair Work Act describes the meaning of ‘engages in industrial activities’ at s.347.

The Fair Work Act prohibits adverse action, coercion and misrepresentations in connection with these industrial activities. It also prohibits inducements to be, or not be, a member of an industrial association.[1]

An employer contravenes s.346 if it can be said that engagement by the employee in an industrial activity was a ‘substantial and operative factor’ in the employer’s reasons for taking the adverse action.[2]

Membership and officers

Section 347 prohibits a person from taking adverse action against another person because the other person is, or is not, or was or was not, an officer or member of an industrial association.

Industrial associations are defined as:

• unions and employer associations (whether or not registered or recognised under a law), or
• employees and/or independent contractors who come together informally in the workplace for a purpose which includes protecting and promoting their interests in matters concerning their employment.[3]

An officer of an industrial association is a person who holds an office in the association, or an employee of the association, or a delegate or other representative of the association.[4]

An illustrative example

is provided in the Explanatory Memorandum:[5]

Andrea works at the Bouncy Bluebell Childcare Centre. The manager, Bernadette, has been asking child care workers to put away heavy equipment at the end of each day while also watching the children. This requires the staff to leave the children without supervision. Andrea is concerned that this breaches the relevant government regulations. She suggests to a number of her co-workers that they meet after work to talk about whether they should take a collective approach on this issue, including reporting the issue or contacting the union.

If the other employees agree to the meeting, they will be an industrial association within the meaning of clause 12.

The protections also prohibit a person from taking adverse action against another person because of the person’s membership or non-membership of a particular industrial association – i.e., they would operate to protect someone from adverse action because they are a member of union A rather than unions B or C.[6]

A person also engages in industrial activity if she or he does or does not:

• become or remain an officer or member of an industrial association
• become involved in establishing an industrial association
• organise or promote a lawful activity for, or on behalf of, an industrial association
• encourage or participate in a lawful activity organised or promoted by an industrial association
• comply with a lawful request made by, or requirement of, an industrial association, or
• represent or advance the views, claims or interests of an industrial association.[7]

These can broadly be described as ‘participation protections’ and cover a broad range of lawful participation activities including:

• carrying out duties or exercising rights as an officer of an industrial association, and
• participating in union discussions at the workplace where a union has exercised a right of entry for this purpose.[8]

Persons exercising a representative function in the workplace are protected, even if the person is not a union member, officer or workplace delegate.[9]

A person also engages in industrial activity if she or he does or does not pay a fee to an industrial association. This covers payment (and non-payment) of bargaining and other fees.[10]

A person also engages in industrial activity if she or he seeks or does not seek to be represented by an industrial association.[11]

An illustrative example

is provided in the Explanatory Memorandum:[12]

Kylie is employed by Daffy Duke Pty Ltd (Daffy Duke). Daffy Duke proposes, during negotiations for an enterprise agreement, to make a number of rostering changes at the workplace. A number of staff are unhappy about the proposal and the relevant union organises protected industrial action that includes a strike against Daffy Duke. Kylie is happy with the proposed rostering changes and declines to participate in the protected action ballot to authorise the taking of industrial action or participate in the protected industrial action.

The union would be prohibited from taking adverse action against Kylie (eg, refusing to provide her with union services) because she refused to participate in the protected action ballot and any subsequently approved protected industrial action.

A person is protected from adverse action for NOT engaging in any of the following unlawful industrial activities:

• organising or promoting an unlawful activity for, or on behalf of, an industrial association
• encouraging, or participating in, an unlawful activity organised or promoted by an industrial association
• complying with an unlawful request made by, or requirement of, an industrial association
• taking part in industrial action, or
• making a payment that the person must not pay, or to which an employee is not entitled, in relation to periods of industrial action.[13]

Adverse action taken because a person engaged in industrial activities

Employment denied to non-union members

Fair Work Ombudsman v Offshore Marine Services Pty Ltd [2012] FCA 498 (17 May 2012), [(2012) 219 IR 435].

Fair Work Ombudsman v Offshore Marine Services Pty Ltd (No 2) [2013] FCA 943 (18 September 2013).

Fair Work Ombudsman v Skilled Offshore (Australia) Pty Ltd [2015] FCA 275 (27 March 2015).

A couple applied for work as ship stewards in 2009 and although the respondent wished to employ them, it told them they would need to first join the Maritime Union of Australia (MUA). The MUA refused their membership applications, in line with its policy of giving preference to ‘beached’ out-of-work members.

The Court found that the conduct of the MUA, not only in refusing the couple membership, but in the intimidation by threats of industrial action to which that company succumbed, such that the respondent, although it wanted to employ the couple, did not do so. The MUA’s conduct involved its blatant use of illegitimate industrial action power to bully the respondent into not employing the couple.

The MUA was culpable at two levels: first, for refusing the membership applications; and second, by illegitimately using the threat of industrial action to pressure the respondent not to employ non-union members. The respondent was also culpable, although at a lesser level than the MUA, for applying and maintaining the unlawful employment practice.

Penalty ordered
The MUA was ordered to pay the couple $79,200 as a pecuniary penalty.

Compensation ordered
The MUA and the respondent were ordered to pay the couple a total of $723,300 for loss suffered.

Filing an affidavit in court proceedings

Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd [2011] FCA 333 (8 April 2011), [(2011) 193 FCR 526].

The applicant was dismissed because he had engaged in industrial activity by swearing and filing an affidavit in freedom of association proceedings in the Federal Court in which he represented or advanced the views, claims or interests of the union.

Penalty ordered
The respondent was ordered to pay the applicant $10,000 as a pecuniary penalty.

Compensation ordered
The respondent was ordered to pay the applicant $94,572.02 for loss suffered including interest.

Denial of accommodation on mining site

Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36 (14 August 2013), [(2013) 248 CLR 619].

An employer provided its fly in/fly out employees on a mining site with accommodation on location for the duration of their work at that location. Some of those employees intended to engage in protected industrial action within the meaning of s.470 of the Fair Work Act. The employer sought, not to terminate their employment, but to cease providing them with accommodation on the basis of s.470(1) which provides:

[Indent]If an employee engaged, or engages, in protected industrial action against an employer on a day, the employer must not make a payment to an employee in relation to the total duration of the industrial action on that day.

The union applied to the Federal Magistrates Court for relief on the basis that the employer’s refusal to provide accommodation contravened an employment agreement between the employer and the employees and constituted adverse action against the relevant employees in contravention of s.340.

The application was dismissed on the ground that the employer was required to act as it intended by s.470. An appeal by the union to the Federal Court of Australia was dismissed. The union was granted special leave to appeal to the High Court from the decision of the Federal Court.

The High Court held that the employees’ contractual entitlement to accommodation while on location was dependent on the subsistence of the employer-employee relationship and not on whether the employees were ready, willing and able to work. The employer’s denial of accommodation would be an alteration to the position of the employees to their prejudice so was considered adverse action.

Adverse action NOT taken because a person engaged in industrial activities

Offensive behaviour on a picket line

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41 (16 October 2014), [(2014) 253 CLR 243].

A member of a union participated in a lawful activity at the Saraji mine organised by the union. During the course of that participation, he held and waved a sign supplied by the association which read ‘No principles SCABS No guts’. His employment was terminated three months later. The union alleged that the employer had taken adverse action in contravention of ss.340 and 346 of the Fair Work Act in dismissing the employee because the employee was a member of the association, or because he had participated in a lawful activity organised by the association, or had represented or advanced its views or interests.

The union commenced proceedings against the employer in the Federal Court. The reasons for the dismissal were explained in evidence given by the decision-maker on behalf of the employer which was accepted at trial. The reasons included that the decision-maker considered that the use of the word ‘scab’ was inappropriate, offensive, humiliating, harassing, intimidating and flagrantly in violation of the employer’s workplace conduct policy, of which the employee was aware, and that the employee demonstrated arrogance when confronted with objections to his conduct. The primary judge accepted that the fact that the employee had engaged in industrial activity did not play any part in the reasons for the decision to terminate his employment.

At first instance the claim under s.340 was dismissed but the employer was found to have contravened s.346 by taking adverse action against the employee for engaging in industrial activity and was ordered to reinstate the employee and pay a penalty of $7,500 to the union for the contravention. The employer appealed to a Full Court of the Federal Court. The appeal was allowed by the Full Court with the orders for reinstatement and payment of the penalty set aside. The union was granted special leave to appeal to the High Court.

The majority of the High Court held that there had been no contravention of s.346. None of the reasons accepted as fact by the primary judge was a prohibited reason. The employer did not dismiss the employee because he participated in the lawful activity of a protest organised by the union, nor was he dismissed because, in carrying and waving the sign, the employee was representing or advancing the views or interests of the union, as the union alleged. The employer’s reasons related to the content of the employee’s communications with his fellow employees, the way in which he made those communications and what that conveyed about him as an employee. The reasons included a concern that the employee could not, or would not, comply with the standards of behaviour which the employer was attempting to instil in employees at the mine.

Wearing of a union T-shirt

United Firefighters Union of Australia v Easy [2013] FCA 763 (2 August 2013).

The applicant claimed she had engaged in ‘industrial activity’ by taking ‘protected action’, namely wearing a union T-shirt at work.

The Court found that, whilst wearing a union T-shirt could constitute ‘industrial action’ in certain circumstances, in this case it did not because there was no ban, limitation or restriction on the performance of work by the employee. Since the wearing of the union T-shirt did not constitute industrial action, the applicant was not exercising a workplace right; nor was she engaging in an industrial activity.

Expulsion from a union

Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402 (10 December 2012), [(2012) 208 FCR 178].

The applicant’s argument that he engaged in industrial activity by reason of his expulsion from the union was rejected. Each subsection in s.347 refers to or identifies a conscious decision or act by a person. The applicant did not take any conscious action to cease to be a member—it was done by the union.

Application for unpaid leave to attend a union meeting

Construction, Forestry, Mining and Energy Union v Bengalla Mining Company Pty Limited [2013] FCA 267 (28 March 2013).

The applicant asked for unpaid leave to attend a union meeting on 3 occasions and his requests were refused. The employer’s leave policy stated that unpaid leave was only available if an employee had first exhausted all accrued leave. The applicant was told that he could apply for annual leave and that the company would support such an application. The applicant did not apply for annual leave. As a result, his absences were treated as unauthorised and disciplinary action ensued.

The Court found the disciplinary action was not taken for a prohibited reason.