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The Federal Court of Australia has ordered the Australian Workers Union (AWU) to pay $18,000 in penalties following its pursuit of disciplinary action against its own members.
The AWU was in the throes of negotiating a new enterprise agreement with Orica Pty Ltd in 2015 when it began organising protected industrial action for its members.
The industrial action consisted of a number of two-hour work stoppages (at 5.00am, 7.00am and 3.00pm) on 3 March 2015. When the time for the work stoppages came, a number of Orica employees, who were members of the AWU, decided not to participate.
An AWU organiser noticed that two members in particular had decided not to participate and he petitioned the secretary of the AWU’s Victorian branch to bring “charges” against those individuals under the AWU’s Rules.
The secretary wrote formal letters to the two employees advising them that they had been “charged” with “gross misbehaviour” and “failing to comply with any resolution or direction passed or given under any Rule of the Union after having notice thereof”, in accordance with the AWU’s Rules. The employees were summoned to a meeting to defend the charges against them and to explain their actions. The letter went on to state that if the charges were sustained, the employees may be fined or suspended or expelled from the AWU.
The employees attended a meeting in April 2015 and the charges remained in place, although not officially sustained.
The Fair Work Ombudsman (FWO) then commenced legal proceedings against the AWU in the Federal Court, alleging that the AWU had taken adverse action against the employees for exercising a workplace right and for choosing not to participate in the industrial action.
After the proceedings were commenced, the AWU formally withdrew the charges and apologised to the employees.
Once before the Court, the AWU conceded that it had contravened the Fair Work Act 2009 (Cth) (FW Act) and had taken unlawful adverse action against its two members.
The Court agreed and held that the AWU sought to or threatened to penalise the employees for their decision not to engage in the industrial action organised by the AWU and this had caused the employees to become concerned and anxious. This conduct contravened ss340 and 346 of the FW Act.
The Court commented,
It is, to say the least, surprising that an experienced union official occupying a position as senior as that which [the secretary of the Victorian branch] occupied might genuinely believe that punitive action could lawfully be taken against a person because he or she opted not to participate in union-sponsored industrial activity. [at 38]
The Court ordered that the AWU pay $18,000 in penalties for its contraventions of the FW Act.
Lessons for employers
Under the FW Act, employees are protected from adverse action being taken against them for prohibited reasons. Two such reasons include the exercise of a workplace right and a person’s choice to engage or not engage in protected industrial action.
In most general protections cases, it is the employer that has allegedly committed unlawful adverse action. However, this case demonstrates that unions can also be held accountable for their treatment of employee members when that treatment infringes upon the protections afforded to employees under the FW Act.
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