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]
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:
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]
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]
A person also engages in industrial activity if she or he does or does not:
These can broadly be described as ‘participation protections’ and cover a broad range of lawful participation activities including:
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]
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.
A person is protected from adverse action for NOT engaging in any of the following unlawful industrial activities:
[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).