Adverse Action & Union Activity under the Fair Adverse Action & Union Activity under the Fair Work Act: Culture & PracticeWork Act: Culture & Practice

Lisa HeapLisa Heap

Executive DirectorExecutive Director

Australian Institute ofAustralian Institute of

Employment RightsEmployment Rights

• What are the cues about workplace What are the cues about workplace culture & practice that we can take from culture & practice that we can take from the FC decision in Barclay v Bendigo the FC decision in Barclay v Bendigo TAFE?TAFE?

CuesCues

• An object of the Act is the An object of the Act is the promotion of fairness & promotion of fairness & representation at work.[14]representation at work.[14]

CuesCues

Work place rights (and laws) Work place rights (and laws) as part of a suite of human as part of a suite of human rights.[15-17]rights.[15-17]

CuesCues

Where human rights are concerned Where human rights are concerned protective & remedial legislation protective & remedial legislation should not be narrowly construed [17].should not be narrowly construed [17].

Why?Why?

CuesCues

Protection of union representatives from Protection of union representatives from victimisation as a key foundation stone of our victimisation as a key foundation stone of our industrial history.[18-21]industrial history.[18-21]

Why? What particular role do they play?Why? What particular role do they play?

Just a thought!Just a thought!

What is the connection between what What is the connection between what has happened in this case and what we has happened in this case and what we see happening currently in Egypt and see happening currently in Egypt and Libya?Libya?

What is it about freedom of What is it about freedom of association?association?

The individual right to come together with other individuals and collectively express, promote, pursue and defend common interests.

A fundamental human right.

Extends to the right to freely form and join trade unions and participate in their activities.

The challenge for employersThe challenge for employers

• To situate themselves, their activities, To situate themselves, their activities, responses and approaches and what they do responses and approaches and what they do within their individual organisations within the within their individual organisations within the context of a society and community.context of a society and community.

• That is to understand and recognise why That is to understand and recognise why freedom of association is important to our freedom of association is important to our democracy.democracy.

The Challenge for unionsThe Challenge for unions

• To understand their existence as an To understand their existence as an expression or symbol of the human rights of expression or symbol of the human rights of individual workers.individual workers.

• To take responsibility for the role they play as To take responsibility for the role they play as as a cornerstone in our democracy. as a cornerstone in our democracy.

The Challenge for The Challenge for practitionerspractitioners

• To move beyond compliance To move beyond compliance

To culture

To achieve compliance

A framework for understanding: A framework for understanding: Australian Charter of Employment Australian Charter of Employment RightsRights

• Good Faith PerformanceGood Faith Performance• Work with DignityWork with Dignity• Freedom from Discrimination & harassmentFreedom from Discrimination & harassment• A safe & healthy workplaceA safe & healthy workplace• Workplace DemocracyWorkplace Democracy• Union membership & representationUnion membership & representation• Protection from unfair dismissalProtection from unfair dismissal• Fair minimum standardsFair minimum standards• Fairness & balance in industrial bargainingFairness & balance in industrial bargaining• Effective dispute resolutionEffective dispute resolution

• If you were advising Bendigo TAFE with If you were advising Bendigo TAFE with the benefit of having read the majority the benefit of having read the majority decision in this case what would you decision in this case what would you say?say?

A different approach?A different approach?

What is the real issue? What is the real issue?

Are there fraudulent practices occurring?Are there fraudulent practices occurring?

Are staff being intimidated into carrying Are staff being intimidated into carrying out these practices?out these practices?

What processes can we use to investigate What processes can we use to investigate this?this?

Given the union has raised the issue how Given the union has raised the issue how can we work with the union to solve this can we work with the union to solve this problem?problem?

An approach to the union delegate and An approach to the union delegate and to the union office with a request to meet to the union office with a request to meet to identify concerns and solve the to identify concerns and solve the problem.problem.

The employee as a The employee as a representativerepresentative

No threat to the individual employee (delegate) or their employment.If there were concerns about the statements made by the delegate - for example they were not substantiated or were expressed in an inflammatory way this can be taken up with the union office with a discussion about establishing a protocol about how these things could be dealt with in the future.