Three disciplinary actions in quick succession, all after enterprise bargaining kicked off
A sports centre operator disciplined a union delegate during enterprise bargaining. The Fair Work Commission had to decide whether that crossed the line.
The State Sports Centres Trust, which operates venues including the Melbourne Sports and Aquatics Centre, had been bargaining with the United Workers' Union for a replacement enterprise agreement since October 2025. Neil Hayes, a duty manager employed since November 2003 and a UWU delegate since 2021, was central to the union's bargaining team.
On 21 December 2025, Hayes encountered children in an unauthorised area of the aquatic centre who had already run from staff once. When he and a colleague approached the group again in the basketball area, the children jumped over the back of a score bench. Hayes grabbed one child's shirt; the child fell back into the bench but landed on his feet. Hayes filed an incident report that day.
He was stood down with pay on 29 December 2025. SSCT engaged an external investigator over allegations of inappropriate conduct and breach of its obligations under the Child Wellbeing and Safety Act 2005 (Vic) and the Reportable Conduct Scheme. The investigation substantiated a reportable conduct allegation of physical violence against a child. No injury was confirmed and no imminent injury found, but Hayes' actions were capable of causing harm and the contact and force deemed unnecessary. Hayes believed his actions were lawful, that contact was necessary to prevent injury, and the force proportionate. His conduct was intentional but he did not intend to hurt the child; he was found reckless about that possibility. He had no prior similar misconduct in 19 years as duty manager.
On 20 January 2026, SSCT issued a show cause letter proposing termination. A further letter on 29 January referenced two earlier incidents: informal counselling on 20 November 2025 over how Hayes concluded a September 2025 event, and a warning on 5 December 2025 involving a child with known challenging behaviours. Before bargaining began, Hayes had no disciplinary history.
UWU applied for a bargaining order on 10 February 2026, arguing SSCT's conduct was capricious or unfair and undermined freedom of association or collective bargaining. Hayes was the only duty manager in the union's bargaining unit; whether the agreement would cover duty managers was a contested issue. UWU said he was critical given his long service and cross-site relationships. SSCT noted three of eight delegates were duty managers. UWU argued termination would be disproportionate given 23 years of service, self-reporting, and no prior similar allegation. SSCT undertook not to progress the show cause until the matter was determined.
Commissioner Tran dismissed the application on 8 April 2026.
The Commissioner found a rational basis for SSCT's conduct. The three incidents occurred during Hayes' performance of work, not during or in connection with bargaining. "SSCT engaged in a process; it did not act abruptly or without warning or contrary to its own policies." Suspending Hayes was the usual course when investigating alleged reportable conduct of physical violence against a child. The timing of the November counselling, weeks after the September incident, raised a suspicion of capriciousness, but its relevance was minimal; SSCT's case rested on the 21 December incident.
The Commissioner accepted Hayes' absence had affected bargaining and removing a key delegate could chill freedom of association. But he was one of eight or nine delegates, no other faced action, four meetings continued after his suspension, and both sides described bargaining as productive. The Commissioner was not satisfied bargaining had been undermined.
The Commissioner observed that "it does not strike me that dismissing Mr Hayes is the only way SSCT can ensure child safety in similar circumstances in future."
The Commissioner drew a clear distinction with unfair dismissal. Hayes had not been dismissed, but proportionality, mitigating factors, and harshness of termination would all be relevant in such a case; those considerations fall outside the scope of a bargaining order.
For HR leaders, disciplinary action against a delegate during bargaining is not automatically a good faith breach, provided the conduct relates to workplace performance rather than bargaining activity. Clearing the bargaining order threshold does not foreclose scrutiny of a dismissal on different grounds.
