What are the legal risks of disciplining a union member?

By Trent Sebbens, partner, Ashurst

Disciplining union members or representatives can involve legal risks, such as where it is alleged that the employer has breached some of the general protections provisions of the Fair Work Act.

When the facts surrounding an adverse action taken against an employee involve a protected reason – such as union activity or involvement in industrial action – an employer will need to ensure that the reason for any disciplinary action taken against a union member is for lawful reasons, so that the reverse onus of proof under the general protections provisions can be met.

However, some useful points to remember are:

1. An employee who is a union delegate will not be protected by a cloak of immunity from disciplinary action by reason of their union position if that employee engages in misconduct or poor performance;
2. It is possible for an employer to disaggregate the conduct of an employee, such as protected industrial activities that they are lawfully engaged in, from other unlawful or unprotected activities; and
3. This approach will also apply to Health and Safety Representatives (HSR), who are often union elected members, when the HSR is exercising their powers work health and safety legislation.

How can conduct be "disaggregated" from union membership or activities?

Industrial tribunals have long held that while they will be vigilant to protect the position of any union member or delegate unjustly dealt with by an employer for legitimate activity on behalf of his or her union, that this does not provide such persons with a "magic cloak conferring on the wearer immunity from liability for wrongful actions" (as stated in the Newcastle Steel Works Case (1961) AR 48)

The High Court decisions in The Board of Bendigo Regional Institute of TAFE v Barclay [2012] HCA 32 and CFMEU v BHP Coal Pty Ltd [2014] HCA 41 confirm that the question of why an employer took adverse action against an employee is a question of fact that must be answered in light of all the evidence in the proceedings. If a decision-maker establishes to the satisfaction of the Court that his or her motivation for taking adverse action was free from any unlawful consideration (ie a workplace right, industrial activity or discriminatory attribute) then this will be a successful and complete defence to an adverse action claim.

On that basis, it is not open to the court to draw an objective or unconscious connection between the decision to take adverse action and the protected attribute or activity and find a contravention of the adverse action provisions.

In the particular facts of the Barclay case, the High Court accepted the decision-maker's evidence that she had taken an adverse action against the employee because of his inappropriate conduct, rather than his industrial activities or affiliation. Similarly in CFMEU v BHP Coal, an employer's decision to dismiss an employee who waved a sign with offensive words on it during a picket at the employer's mine. The High Court accepted the evidence of the decision-maker, who said that the employee was dismissed for breaching company policies and not his involvement in union activities.

On this basis:

• It is incorrect to suggest that any conduct in a union capacity – regardless of whether it is inappropriate or in breach of an employer's policies or procedures – is immune from any disciplinary action.
• A distinction can lawfully be drawn between taking action for employment misconduct and taking adverse action for unlawful reasons.

• Engagement in industrial activity may be closely related to a decision to take adverse action without necessarily being the cause of such a decision.

The Full Court decision in State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 provides a clear statement of that the existence of a close relationship between the adverse action and a prohibited reason does not mean that the two cannot be disaggregated (although in that case considering misconduct and a medical condition). In that case, the Court held that the misconduct may not be so interwoven with the unlawful consideration that it could not be disaggregated.

The decision in AMWU v Visy Packaging Pty Ltd (No 4) [2013] FCA 930 demonstrates similar approaches may be adopted in relation to the exercise of rights by a Health and Safety Representative.

How can employer's deal with any potential risk?

Employers should carefully determine whether the reasons for taking adverse action against an employee include the exercise of any workplace rights or engages in industrial activities – and any action taken should be taken for those reasons. Where an employee has recently exercised a workplace right or engaged in industrial activities prior to any adverse action being taken, then allegations of breach of the general protections provisions can and do arise. The reverse onus that applies can be met by the decision maker giving evidence, accepted by the court, that the reason for the taking of action was not motivated by any unlawful criteria.

While union delegates will not automatically have immunity under the general protections where their misconduct or poor performance can be severed from their lawful industrial activities, navigating a course through these, at times, rough waters can be challenging, and a cautious approach needs to be taken.