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General protections benchbook

An overview of legal procedure & case law

What are industrial activities?

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Table of contents

On this page

  • Introduction
  • Participation and non-participation in lawful industrial activities
  • Non-participation in unlawful industrial activities
  • Case examples
  • References

 

Introduction

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]

Participation and non-participation in lawful industrial activities

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.

Non-participation in unlawful industrial activities

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]

Case examples

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:

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.

References

[1] Explanatory Memorandum to the Fair Work Bill 2008 [1400].

[2] General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605; cited in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 (7 September 2012) at para. 62, [(2012) 248 CLR 549]; and United Firefighters Union of Australia v Easy [2013] FCA 763 [23].

[3] Explanatory Memorandum to Fair Work Bill 2008 [1401]; Fair Work Act s.12.

[4] Fair Work Act s.12.

[5] Explanatory Memorandum to Fair Work Bill 2008 [1401].

[6] Explanatory Memorandum to Fair Work Bill 2008 [1408].

[7] Fair Work Act s.347(b).

[8] Explanatory Memorandum to Fair Work Bill 2008 [1416].

[9] Explanatory Memorandum to Fair Work Bill 2008 [1417].

[10] Explanatory Memorandum to Fair Work Bill 2008 [1418].

[11] Explanatory Memorandum to Fair Work Bill 2008 [1419].

[12] Explanatory Memorandum to Fair Work Bill 2008 [1419].

[13] Fair Work Act ss.347(c)‒(g).

Updated time

Last updated

15 June 2018

 

 

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        • When the Commission may suspend or terminate
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          • Threats to persons or the economy
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  • JobKeeper benchbook
    • Glossary
    • Introduction
      • Provisions of the Fair Work Act
    • JobKeeper enabling directions – general
      • Service & entitlement accrual
      • When a JobKeeper enabling direction will have no effect
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    • Jobkeeper enabling stand down directions – entitled employers
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  • Modern Awards Review 2012
    • Introduction
      • Modern Awards Review 2012
  • Sir Richard Kirby Archives
    • Home
    • Sir Richard Kirby
    • About the Archives
    • Cases
      • Case
      • The Honourable Justice Henry Bournes Higgins (1851–1929)
    • Centenary
    • Exhibitions
      • Exhibition launch: The history of the Australian minimum wage
      • Guide – Opening Exhibition
      • International Industrial Dispute Resolution Conference
        • Speaker – Justice Alan Boulton AO
        • Speaker – Mr Arthur F Rosenfeld
        • Speaker – Mr Craig Smith
        • Speaker – Mr James Wilson
        • Speaker – Mr Kieran Mulvey
        • Speaker – Mr Peter Anderson
        • Speaker – Ms Ginette Brazeau
        • Speaker – Ms Nerine Kahn
        • Speaker – Ms Rita Donaghy CBE
        • Speaker – Ms Sharan Burrow
        • Speaker – Senator Guy Barnett
        • Speaker – The Hon. Julia Gillard
      • The Journey
        • Court
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      • The history of the Australian minimum wage
        • The Great Strikes
        • The first minimum wage: The Victorian minimum wage
        • The Harvester Decision
        • The impact of the Great Depression
        • Working it out: Cost of living versus capacity to pay
        • The removal of award rate discrimination
        • The wage explosion & economic crisis
        • The modern era: The development of a modern minimum wage
      • Treasures of the archives
        • Launch speech?Treasures of the Archives
        • 1. Professor Isaac
        • 2. Register of organisations
        • 3. Perlman letters
        • 4. Sir Richard Kirby photograph
        • 5. Oral history program
        • 6. AIRC sign
        • 7. Folder of wage decisions
        • 8. Centenary exhibition
        • 9. Women's exhibition poster
        • 10. Isaac letters
    • The modern era
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  • Unfair dismissals benchbook
    • Overview of unfair dismissal
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    • Coverage for unfair dismissal
      • Who is protected from unfair dismissal?
      • People excluded from national unfair dismissal laws
        • Independent contractors
        • Labour hire workers
        • Vocational placements & volunteers
        • Public sector employment
      • Constitutional corporations
      • High income threshold
      • Modern award coverage
      • Application of an enterprise agreement
      • What is the minimum period of employment?
        • How do you calculate the minimum period of employment?
        • What is continuous service?
        • What is an excluded period?
      • Bankruptcy
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    • What is dismissal?
      • When does a dismissal take effect?
      • Terminated at the employer's initiative
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      • What is a transfer of employment?
      • Periods of service as a casual employee
      • What is a genuine redundancy?
        • Job no longer required due to changes in operational requirements
        • Consultation obligations
        • Redeployment
      • What is the Small Business Fair Dismissal Code?
    • What makes a dismissal unfair?
      • Valid reason relating to capacity or conduct
        • Capacity
        • Conduct
      • Notification of reason for dismissal
      • Opportunity to respond
      • Unreasonable refusal of a support person
      • Warnings – unsatisfactory performance
      • Size of employer's enterprise and human resources specialists
      • Other relevant matters
    • Making an application
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      • Timeframe for lodgment
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      • Who is the employer?
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        • Order for reinstatement cannot be subject to conditions
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        • Compensation cap
        • Instalments
    • Dismissing an application
    • Evidence
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      • Costs against representatives
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    • Appeals
      • Staying decisions
    • Role of the Court
  • Waltzing Matilda and the Sunshine Harvester Factory
    • Introduction
    • The book
      • Book launch
    • The film
      • Film launch
    • Historical material
      • 38 Hour Week Wage Principle [1983]
      • 40 Hour Week Case [1947]
      • 44 Hour Week Case [1927]
      • Apprenticeship indentures
      • Australian Minimum Wage and fitter (trades) rate since 1906
      • Boot Trades Case
      • Careers in Bootmaking and Boot Repairing
      • Cattle Industry Case 1966
      • Commercial Printing Case [1936]
      • Commonwealth Conciliation and Arbitration Act 1904
      • Cost of living newspaper articles from the early 1900s
      • Debates
      • Equal Pay Case 1969
      • Equal Pay Case 1972
      • Fruit Pickers Case
      • Gas Employees Case
      • Graph of Australian Minimum Wage since 1906
      • Harvester Case
      • Historic case judgments on the Fair Work Commission's website
      • Kingston's evidence
      • Linesmen's Case
      • Maternity Leave Case [1979]
      • Metal trades base level minimum wages [1967–2015]
      • Methods of wage adjustment
        • Establishing an Australian Minimum Wage 1907?1922
          • The origins of the Australian minimum wage
          • The 'needs' principle and 'capacity to pay'
          • Women's wages
          • First indexation decision
        • Quarterly indexation 1922–1953
        • The Great Depression 1931
        • Prosperity loadings 1937
        • World War II 1939–1945
        • The post-war period: 1953–1965 basic wage inquiries
        • The total wage 1966–1967
        • Removal of discrimination in award rates
        • Reintroduction of quarterly wage indexation 1975–1978
        • Six monthly wage indexation 1978–1981
        • Wage explosion 1981–1982
        • Reforming awards and work and management practices 1987–1991
        • Six monthly wage indexation 1983–1987
        • Enterprise bargaining and a minimum wage safety net 1991–1996
        • Statutory adjustments
        • The minimum wage in real terms
      • Mrs Beeton's cookbook
      • Paternity Leave Case [1990]
      • Personal/Carer's Leave Test Case [1995]
      • Piddington report
      • Re Bagshaw [1907]
      • Significant cases on the Fair Work Commission's website
      • Statistics for the purpose of comparison with the Australian minimum wage
      • The Amalgamated Society of Engineers v. The Adelaide Steam-ship Company Limited and Others
      • The Australian minimum wage from 1906
      • The Federated Marine Stewards and Pantrymen's Association v. The Commonwealth Steamship Owners' Association and Others
      • The Victorian minimum wage 1896
        • Legislative Council Second Reading Speech to the Factories and Shops Bill 1896
      • The first Award: 1906 Steam-ship Crew
      • 100 years of the minimum wage—Statistical comparison
    • Mrs Beeton's cookbook
    • Glossary
    • Related sites
    • Educational materials
  • AWRS First Findings report

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