It’s My Prerogative – Employer permitted to stop delegates wearing shirts with union logo

In a recent Fair Work Commission (FWC) decision in Alcoa of Australia Limited v AWU [2016] FWC 3582, the FWC looked at whether Alcoa was entitled to require all employees, including AWU delegates covered by the World Alumina Australia WA Operations AWU Enterprise Agreement 2014 (the EBA), and working on the Western Australia Mining site, to comply with the terms of the Western Australian Mining Dress Policy (the Policy). 

Alcoa applied to the FWC under the dispute settlement procedure of its EBA to determine this issue. 

By way of background, the Application was lodged because Alcoa employees (who were also the AWU Delegates) wore Alcoa issued uniforms but had put the AWU logo on them, in contravention of the Policy.

The primary reason Alcoa introduced the Policy was to:

  • address inconsistencies in dress standards that existed within its mining operations that were impeding its ability to comply with its duty of care;
  • foster a sense of common identity and develop team culture;
  • improve standards and promote a professional image to visitors. 

The Policy provided that the shirts worn by employees on site should only bear the Alcoa logo and the first name of the employee.

The EBA specified that policies apply to all employees covered by the EBA which may be amended and replaced from time to time. There were requirements as to policy introduction that included consultation.

Prior to the policy being introduced, numerous discussions were had between late 2012 and November 2014.  In January 2015 and March 2015 employees were notified that compliance with the Policy would be mandatory from 31 March 2015.  From 1 April 2015, the AWU Delegates refused to comply with the Policy and disputed the requirement to comply with the Policy.

Despite written warnings issued to them, the AWU Delegates continued to wear shirts that displayed the AWU logo and maintained they were not obliged to comply with the Policy.

The FWC took into account the general principles of managerial prerogative and noted that Alcoa were not prevented by a statute, award, statutory agreement or contract of employment from making the Policy.  The FWC also noted that an employer has a right to conduct and manage its business as it sees fit, and without external interference. 

Alcoa submitted that it was able to require all employees, including those who were AWU Delegates covered by the EBA and working on the Western Australia Mining site to comply with the terms of the Policy because:

      (a)  It is consistent with the EBA;

      (b)  The Policy is a legitimate exercise of managerial prerogative;

      (c)  The instruction is lawful and reasonable in all the circumstances;

      (d)  There had not been any previous agreement reached in relation to what clothing may
             (or may not) be worn by AWU Delegates.

The AWU argued that the Policy did not apply to its Delegates because Alcoa had previously and still does provide support to the AWU Delegates as noted in the EBA and previous EBAs.  The AWU also argued that its Delegates should be identifiable from the other employees.

The FWC also recognised the relationship between the AWU and Alcoa and took into account that Alcoa had recognised union structures, training arrangements and made resources available.  However, Alcoa’s support to the AWU did not go as far as to allow AWU delegates to wear the AWU logo on the Alcoa uniform.  As a result, Alcoa did not have an obligation to support the AWU Delegates to wear the union logo on their shirts and had a right to enforce its policies.

Employers who have enterprise agreements in place and who are considering introducing or altering an existing policy for employees covered by an enterprise agreement should always check the agreement to ensure that  there are no additional requirements (such as consultation over a period of time) or prohibitions.  As a matter of best practice, all employers, and prior to introducing a policy should consult with their employees and if applicable, have an amnesty period to allow employees time to get acquainted with the policy before it takes full effect and is enforceable.

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.

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