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How industrial activity is protected in your 


Wednesday, 26th November 2014, by Loran McDougall

In today's Workplace Bulletin:
  • When is industrial activity protected under the FW Act?
Dear Reader,

The Fair Work Act 2009 (Cth) (FW Act) contains industrial activities protections, which make it unlawful for you to do the following things to a member of the workforce because of their participation in industrial activity:
  • take adverse action against;
  • coerce;
  • make misleading representations to; and
  • exert undue influence or pressure on.
These protections are in place to protect freedom of association – that is, the freedom to be represented by a union and to participate in its activities (it is not simply the freedom to join a union without adverse consequences).
In today’s bulletin, Charles Power explains what constitutes industrial activity and details exactly what the protections prohibit you from doing.
Until next time,
Jessica Oldfield
Loran McDougall
Workplace Bulletin
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When is industrial activity protected under 

the FW Act?

by Charles Power
Editor-in-Chief, Employment Law Practical Handbook
What is industrial activity?
Industrial activity includes the following things:
  • becoming an officer or member of a union or employer association;
  • becoming involved in establishing a union or employer association;
  • organising or promoting an activity for a union or employer association;
  • participating in an activity organised or promoted by a union or employer association;
  • complying with a request made by a union or employer association;
  • representing or advancing the views, claims or interests of a union or employer association;
  • paying a fee to a union or employer association;
  • seeking to be represented by a union or employer association; and
  • taking part in industrial action.
How is industrial activity protected?
Any member of the workforce who takes part in industrial action is protected from the following four things:
  • Adverse action, i.e. conduct that reduces the advantages a person receives or expects to receive in their employment. Just as you cannot take adverse action against someone for engaging in industrial activity, nor can you take adverse action against someone for not engaging in industrial activity.
  • Coercion, i.e. you cannot take steps to coerce an employee to engage in industrial activity.
  • Misleading representations, i.e. you cannot knowingly make a false or misleading representation about another person’s obligation to engage in industrial activity, or their obligation to disclose their trade union or employer association membership status.
  • Undue influence or pressure, i.e. you cannot place undue pressure on an employee to become, remain or cease to be a member of a union or employer association.
Case Law: Conduct of unionist employees is not 100% protected
A recent High Court case, CFMEU v BHP Coal (2014), highlighted that, despite these protections, employers must also consider their non-unionist employees when dealing with unionist employees’ conduct.
During a protest, an employee waved a sign that said, “No principles SCABS No guts”. The employee was dismissed on the grounds that the sign breached the workplace conduct policy because it was offensive to fellow employees. Three out of five members of the High Court ruled that this reasoncould be separated from the protected industrial activities and, as such, the dismissal did not occur because of the employee’s engagement in union activity and so did not contravene the FW Act.
Charles Power
Charles Power

Employment Law Practical Handbook

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