Captain Underpants: Undies protest not industrial action – so what is?

A national campaign with the slogan #SaveDave, which took the dismissal of a union representative employee all the way to the Fair Work Commission (FWC), has highlighted to employers the importance of recognising what is, and what is not, industrial action.

What is industrial action?

The regulation of industrial action set out in the Fair Work Act 2009 (Cth) (FW Act) is limited, in large part, to action taken by employees and/or employers in the course of the collective bargaining process.

Section 19 of the FW Act defines “industrial action” as:

  • An employee performing work differently to the way it is normally performed or using a different practice of work, that restricts, limits or delays the performance of work;
  • A ban, limitation or restriction on the performance of work or on the acceptance of work;
  • A failure or refusal by employees to attend for work or to perform any work at all; or
  • The lockout of employees from their employment by the employer.

Section 19 also states that industrial action specifically does not include:

  • Action by employees that is authorised or agreed to by the employer;
  • Action by an employer that is authorised or agreed to by the employees;
  • Action by employees if the action was based on a reasonable concern of an imminent risk to the employees’ health or safety and the employee didn’t unreasonably fail to comply with a direction to perform other available work that was safe and appropriate.

Common examples of industrial action include strikes, work stoppages and lock outs.

The right to engage in industrial action

The FW Act sets out the circumstances in which employers and employees are able to take industrial action and be “protected” from certain civil and criminal liabilities. This is limited to industrial action taken during the collective bargaining process where the action must meet a number of requirements before it can be considered “protected”.

The general protections provisions of the FW Act also provide protection against adverse action to employees who engage in lawful industrial activity (or choose not to engage in any industrial activity).

Otherwise, industrial action is generally considered unlawful. Engagement in unprotected industrial action may result in stoppage orders from the FWC, fines or penalties, and may also give an employer the grounds to dismiss an employee.

 

The importance of knowing what is and isn’t industrial action

In McLachlan v Illawarra Coal Holdings Pty Ltd T/A South 32 [2017] FWC 5167, an employer sought to argue that they validly dismissed an employee for his organisation of, and participation in, unprotected industrial action.

The employee, who was also a member of the Construction, Forestry, Mining and Energy Union, had arranged an “undies” protest in relation to a laundry service dispute under their applicable enterprise agreement. A number of employees attended work in their underwear and gathered for 5-10 minutes under a tree to have their photos taken, before re-dressing and commencing work in the underground mines.

When local media outlets reported on the protest action, the employer commenced an investigation and ultimately dismissed the employee because of his role in what they considered to be unprotected industrial action, which had resulted in reputational damage to the employer.

In unfair dismissal proceedings lodged by the employee, the FWC rejected the employer’s argument having regard to section 19 of the FW Act. It found that the protest was not industrial action as it did not have any practical impact on the performance of work.  The employer had also tacitly authorised or agreed to the action because it had not taken any immediate action to stop the protest. As a result, “the cornerstone of the reason for the applicant’s dismissal has been established to be erroneous” and there was therefore no valid reason for the dismissal.

The FWC commented that, even if it was industrial action, it was of the “lowest order”. In this regard, it noted that the dismissal was particularly harsh because the employer had not suffered any real reputational damage.

Adding to the harshness of the dismissal, the FWC found that the employer had failed to take into consideration the employee’s clear intention to “discharge his [union] representative responsibilities in a fair, measured, and balanced manner, which respected his employer”.

The FWC conceded that, in the context of today’s modern and inclusive workplace, the protest was “an imprudent and inappropriate means” to advance the employees’ interests but it did not provide a sound, well-founded or defensible reason for the employee’s dismissal.

The FWC ordered that the employee be re-instated to his position.

Lessons

This decision showcases the complexity of defining industrial action.  As the FWC has shown, the action must have a practical impact on the performance of work.

Care should be exercised if an employer intends to rely on an employee’s conduct in the context of industrial activity as the basis for any disciplinary action, including dismissal. If unsure, legal advice should be sought before a decision is made.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

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