Union Member Rights and General Protections Under the Fair Work Act
Union member rights are protected under the Fair Work Act, including where an employee exercises workplace rights, participates in lawful union activity, or is dismissed for exercising workplace rights.
Hall Payne Lawyers successfully represented United Voice in a general protections matter in the Federal Court of Australia, after a union member’s employment was terminated following union activity and efforts to pursue an enterprise agreement. The decision reinforces the protections available to employees and union members under Fair Work Act general protections, including protections relating to workplace rights, industrial activity and adverse action.
Federal Court General Protections Matter for United Voice
Hall Payne Lawyers has won a general protections matter in the Federal Court of Australia for United Voice. The proceeding concerned the termination by child care employer MDBR123 Pty Ltd and Mr Denis Hinton of the employment of a United Voice member in May 2013.
United Voice contended that the termination was effected in contravention of the Fair Work Act. The Court agreed.
Workplace Rights Claim Under the Fair Work Act
From March 2013, the union member attempted to recruit her fellow employees to the Union in an attempt to make an enterprise agreement with the Employer, which the Court accepted was the exercise of a “workplace right”.
The Court also accepted that the Union Member proposed to engage in “industrial activity” by encouraging her fellow employees to become members of the Union, seeking to make an enterprise agreement, advancing the interests of the Union, and seeking to increase membership of the Union.
In May 2013, the Union Member’s employment was terminated, which is “adverse action” for the purpose of the Act. This type of workplace rights claim can arise where an employee is dismissed or treated unfairly because they exercised, or proposed to exercise, a protected workplace right.
Employer Arguments Rejected by the Court
The Employer argued that the termination was effected because of complaints from fellow employees about the Member engaging in bullying and harassment, the receipt of a complaint from a fellow employee about misrepresentations by the Member, the receipt of complaints from parents in respect of aggressive and unprofessional conduct by the Member, and no other reason.
The Court rejected the Employer’s arguments and evidence. The Court found that the Employer’s concerns about the Union Member’s conduct were overstated and exaggerated, and found that the Employer and the Director were concerned about unionisation and therefore the conduct of the Union Member.
General Protections Dismissal and Adverse Action Claim
The Court found that the Employer and the Director contravened the Act by terminating the Union Member’s employment for prohibited reasons, namely that the Union Member had exercised a workplace right and proposed to engage in industrial activity.
This general protections dismissal matter shows how an adverse action claim may arise when an employee is dismissed because of union activity, workplace rights, or protected conduct under the Fair Work Act.
The matter is back before the Court for a hearing as to compensation and penalty on 4 February 2015.
Why This General Protections Decision Matters for Union Members
This is a strong outcome for the Union Member and the Union. The decision reinforces the protections given to union members and activists by the general protections provisions.
The decision means that the Union Member may receive compensation and the Employer and the Director may be penalised for contravening the Act. It also demonstrates the importance of union membership when workplace rights, industrial activity, and employee rights for union activity in Australia are involved.
Get Employment Law Advice on General Protections Matters
Hall Payne Lawyers has significant experience in litigation involving the general protections provisions in the Act. Unions and employees must act quickly if they are dismissed for a prohibited reason.
If you need employment law advice, an industrial relations lawyer, or an employment lawyer for adverse action claims, Hall Payne Lawyers can help you understand your options.
Union member rights matter, especially where an employee has been dismissed for exercising workplace rights, taking part in lawful union activity, or making a workplace rights claim under the Fair Work Act.
General Protections and Union Member Rights FAQs
What is a general protections claim?
A general protections claim is a legal claim under the Fair Work Act that may arise when an employer takes adverse action against an employee because they exercised a workplace right, engaged in lawful industrial activity, or had another protected attribute.
What is adverse action in Australian employment law?
Adverse action in Australian employment law can include dismissal, injury in employment, altering an employee’s position to their disadvantage, or discriminating between employees for a prohibited reason.
Can an employer dismiss a worker for union activity?
An employer may breach the Fair Work Act if they dismiss or take adverse action against an employee because that employee engaged in protected union activity or exercised a workplace right.
What should employees do if they are dismissed for exercising workplace rights?
Employees should seek legal advice quickly if they have been dismissed for exercising workplace rights. General protections matters can involve strict timeframes, and early advice can help employees understand whether they may have a claim.
Can general protections apply during enterprise agreement negotiations?
Yes. General protections may apply where an employee exercises workplace rights or engages in protected industrial activity during enterprise agreement negotiations, including union-related activity or efforts to advance collective workplace interests.