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.
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.
Membership and officers
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:
- unions and employer associations (whether or not registered or recognised under a law), or
- employees and/or independent contractors who come together informally in the workplace for a purpose which includes protecting and promoting their interests in matters concerning their employment.
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.
An illustrative example
is provided in the Explanatory Memorandum:
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.