Industrial update – employee protections and industrial activity
October 31, 2014
Two recent decisions shed light on the extent to which employees are protected by the Fair Work Act 2009 (Act) when engaging in industrial activity.
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd  HCA 41 (16 October 2014)
The High Court of Australia’s ‘scab sign ruling’ confirms that employers are within their rights to undertake legitimate disciplinary action for reasons which are unrelated to an employee’s union involvement or industrial activities.
The decision was not unanimous, which is perhaps a reflection of the complexities associated with drawing a distinction between reasonable disciplinary action and employee protections where industrial activity is involved.
In 2012, Mr Doevendans’ employment with BHP Coal Pty Ltd (BHP) was terminated after he held and waved a sign at passing motorists which read ‘No principles SCABS No guts’. This was during a lawful protest at a mine site, and the sign had been provided to Mr Doevendans by the relevant union.
High Court decision
Essentially, the issue on appeal was whether the termination of Mr Doevendans’ employment was an action that was taken for a reason which is prohibited by the general protections provisions of the Act.
This was an appeal from the decision of the Full Federal Court where it was accepted that BHP’s real reasons for terminating Mr Doevendans’ employment were unrelated to his union activity, and were as follows:
- The word ‘scab’ was offensive, intimidating and humiliating, and had the potential to cause workers and other people at the mine to feel harassed, insulted, abused, bullied or intimidated
- Mr Doevendans’ use of the word was a violation of BHP’s workplace policy, of which he was well aware
- Mr Doevandans’ conduct was contrary to the culture being developed at the mine
- Mr Doevendans had shown no contrition and was defensive and arrogant when confronted about his behaviour.
The High Court majority judgment found that the above reasons ‘related to the content of Mr Doevendans’ communications with his fellow employees, the way in which he made those communications and what that conveyed about him as an employee’.
By reference to the earlier High Court decision of Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1]  HCA 32, the majority judgment confirmed the real focus when considering whether or not adverse action has been taken for a prohibited reason is on ‘a determination of fact as to the reasons which motivated the person who took the adverse action.’
It is not relevant to consider whether the adverse action can be considered to have a connection with protected industrial activity, but rather to focus on discerning the real reasons which motivated an employer to take its particular course of action.
The decision confirms the Act does not require an employer to ‘dissociate its adverse action completely from any industrial activity’. Even if an employee’s union position and activities ‘were inextricably entwined with the adverse action’, courts will focus on examining the real reasons for an employer’s actions, rather than assuming that those reasons were prohibited due to a real or perceived connection with industrial activity.
What does this mean for employers?
The decision makes it clear that employees will not necessarily be immune from disciplinary action simply because of their involvement in industrial activity.
However, it is important to remember that the onus remains on employers to clearly demonstrate that the real reasons for disciplinary action were not in any way related to a prohibited reason such as an employee’s union membership, or their involvement in any industrial activities.
The High Court decision also reminds us that courts will closely examine the factors which motivated the decision-maker within an organisation, and that there is a particular onus on the decision-maker to be able to clearly explain and evidence the reasons which led to their decision.
Employers should ensure their investigation processes are thorough and well documented so that the objective reasons for disciplinary action or termination of employment are clear and capable of being supported by factual evidence.
Ambulance Victoria v United Voice  FCA 1119 (17 October 2014)
The Federal Court of Australia has recently examined the definition of industrial action, and held that the provision of sensitive employer information to the media will not necessarily constitute protected industrial action.
The Ambulance Employees Australia Victoria (AEA), a branch of United Voice, had been engaged in a long running dispute with Ambulance Victoria regarding an enterprise agreement.
On 22 September 2014, the AEA notified Ambulance Victoria that it would be engaging in various protected industrial activities that included Ambulance Victoria’s managers releasing response time information to the media.
The response time is the time taken between the receipt of a call for ambulance assistance and the time at which the first responding unit arrives to treat the patient.
Ambulance Victoria immediately sought an injunction to restrain its team managers from providing the response time information to the media.
Federal Court decision
The central issue for the Federal Court to determine was whether or not the provision of Ambulance Victoria’s response time information constituted industrial action which is protected by section 415 of the Act.
The Federal Court accepted it ‘was common ground that, were the managers to release response time data to the media without the approval of more senior managers, they would breach terms of their employment contract which proscribed the disclosure of such information without authority’, and that they would also be breaching Ambulance Victoria’s media comment policy.
The AEA argued that the proposed action was within the definition of industrial action under sections 19(1)(a) and 19(1)(b) of the Act. This is because by not complying with Ambulance Victoria’s policy or directions, the managers were either working in a manner which was different from the way in which they customarily worked, or imposing a limitation on the conditions under which they customarily worked.
In rejecting this argument, Tracey J of the Federal Court noted it was not part of the managers’ normal duties to provide response time information to the media, and so the provision of that information to the media could not be characterised as the performance of normal work in a different manner.
Tracey J stated that the ‘fact that the proposed action is contrary to contractual terms which are binding on the employees does not, for that reason, amount to the performance of duty in a manner different from the norm. Rules, policies and contractual provisions which proscribe conduct of certain kinds by employees regulate the conduct of those employees in the course of their employment. They do not impinge directly on the manner in which work is performed.’
Tracey J also stated that, were it otherwise, employees who contravened sexual harassment or discrimination policies could claim their actions were protected on the basis that they constituted a departure from their normal performance of work.
Ultimately, it was held that the proposal to provide sensitive employer information to the media constituted a proposal for the managers to take action which was above, beyond and outside the realms of their normal work.
In those circumstances, the Act does not protect action taken by employees.
While an injunction was deemed unnecessary, Tracey J noted that if the managers were to provide the response time information to the media, their actions would not be protected by section 415 of the Act and they would potentially be liable for breaches of their contracts, conduct with intent to coerce Ambulance Victoria, and other potential causes of action.
What does this mean for employers?
In this case, it was deemed that the provision of sensitive employer information to the media does not constitute protected industrial action.
The decision demonstrates that employee actions will not be protected purely because they are contrary to an employer’s rules, policies or contractual provisions. It is open to employers to challenge proposed industrial action which encourages employees to breach their employment obligations by engaging in activities which are outside the realms of their ordinary work.
In these circumstances, employees are not automatically protected by the Act and may be ordered to refrain from undertaking their proposed action.
Authored by Elizabeth Radley, Partner and Kaitlin Foxall, Lawyer, Newcastle.
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