Employees who are made redundant because they participated in the unprotected industrial action may be eligible to bring an unfair dismissal case against the media giant, says Senior Associate Trent Hancock from McDonald Murholme.
“Employees who are dismissed because they engaged in any industrial activity may be entitled to make a general protections application to the Fair Work Commission,” Hancock says.
“In order for such an application to succeed, Fairfax must be shown to have terminated the employment because of
the industrial activity rather than the need to retrench the employee for commercial reasons,” he says.
Fairfax management last week announced some 120 fulltime positions would be slashed from The Sydney Morning Herald and The Age.
Some 500 editorial staff responded by staging a four-day strike, which gathered support from Fairfax publications across Australia.
Fairfax management called the striking of journalists “unprotected industrial action” and said journalists who strike will have their pay docked.
Protected industrial action is essentially action that has been authorised by the Fair Work Commission and approved by a majority of voters in a workplace ballot process, and industrial action is ordinarily only protected if it is in relation to bargaining for a new enterprise agreement, Hancock says.
By contrast, unprotected industrial action is action that has not been authorised by the Fair Work Commission.
Hancock says employers can legally withhold payments to employees who engage in unprotected industrial action.
“In fact, under the Fair Work Act 2009
(Cth) an employer is ordinarily required
to withhold payment from an employee who engages in unprotected industrial action,” he told HC Online.
Fairfax’s HR department now faces the challenge of ensuring all its redundancies are fair and in line with employment law.
“There are a number of things that Fairfax must do in order to ensure that any redundancies are fair and lawful,” Hancock says.
“Firstly, Fairfax must comply with the terms of each individual employment contract. This may also include any applicable redundancy policy that is incorporated into the employment contract,” he says.
Secondly, he says Fairfax must comply with the terms of any applicable modern award or enterprise agreement that imposes obligations with respect to notification, consultation, redeployment, retrenchment and entitlements.
If Fairfax decides to dismiss 15 or more employees, it may also need to comply with additional notification and consultation obligations under Part 3-6 of the Fair Work Act 2009
“Fourthly, it must ensure that it applies a fair selection criteria free from bias or discrimination when determining which positions are made redundant,” Hancock says.
He warns Fairfax may face serious legal implications if it does not comply with these obligations.
“These implications can be considerable, ranging from individual claims for unfair dismissal or breach of contract to larger claims regarding breaches of civil remedy provisions of the Fair Work Act 2009
(Cth),” Hancock says.
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Fairfax Media should take care when retrenching editorial staff who took part in last week’s strikes to avoid potential adverse action claims.