Although, to date, adverse action remedies have largely worked against employers, in a recent decision the Federal Court of Australia found that a union had contravened the general protections provisions in section 346 of the Fair Work Act2009 (Cth) for distributing offensive posters against several named employees who were victimised for not engaging in industrial action.
Negotiations for a new enterprise agreement between employees and their employer commenced in September 2010 and the current agreement was to expire in June 2011. Many of the employees were members of the union and a number of them appointed the assistant secretary of their Western Australian branch of the union as their bargaining agent.
The Fair Work Commission granted the union’s application for a protected action ballot to determine whether the employees wished to engage in taking protected action in relation to the 2011 negotiations for a proposed enterprise agreement. The action concerned wage and rostering conditions by way of organised stoppages as employees had experienced fatigue as a result of the work conditions.
Several employees resigned their membership of the union as they disagreed with the tactics of the assistant secretary. Although the majority of employees took the strike action for a 48 hour period, a number of employees worked during the strike, resulting in the strike’s failure as the operations were not shut down. The assistant secretary responded by distributing posters throughout the workforce that named and condemned the employees who had worked during the strike and organised another strike to take place.
The applicant argued that the effect of the adverse action of distributing the posters had the effect, directly or indirectly, of prejudicing the named employees in their employment. The named employees felt ostracised, exposed to vilification and intimidation from co-workers and suffered emotional distress and other psychological injuries. The respondent argued that the prejudice suffered by the employees by other co-workers was not caused by distribution of the posters but because they had worked during the strike.
The Court found that the adverse action had the effect of prejudicing the named employees as the posters were intended to cause fear, emotional harm and distress to each of the named employees in their employment.
It was the distribution of the posters that informed other workers of the identity of each of the named employees and that they had worked during the strike. The offensive language used in the posters was extreme, cruel and abusive. It condemned the named employees as being unworthy of being treated with the respect and dignity otherwise to be accorded to co-workers.
It implicitly invited the other employees to share, give effect to that view, marginalise the named employees and treat them in a negative way, which before the distribution of the posters was not a burden to the named employees.
Lessons for employers
The decision shows that the courts will hold unions who victimise people for exercising a workplace right such as the right to work to account for their actions.
Employers should be aware that the general protections/adverse action provisions can be an important tool in preventing union vilification of their workforce who choose to work during periods of industrial unrest which can be important in assisting employers to trade at the same time they are resisting union demands.