You can leave your hat on (but take the union sticker off)

Recently in our blog article It’s my prerogative – Employer permitted to stop delegates wearing ... we discussed managerial prerogative and the ability for management to direct employees not to wear shirts with a union logo on them in accordance with the employer’s policy. 

The issue with respect to union material on employee work uniforms again came before the Fair Work Commission (FWC) in CEPU, AMWU, CFMEU v Laing O’Rouke Australia Construction Pty Ltd [2016] FWC 3699 (8 June 2016) (Laing Case).

In the Laing Case, the CEPU, AMWU and CFMEU (the Unions) made an application to the FWC asking it to deal with a dispute in accordance with the dispute settlement procedures in the Laing O’Rouke Construction Australia Pty Ltd Ichthys Onshore Construction Greenfields Agreement (the Agreement). 

Laing had directed its employees who were either members or eligible to be members of the Unions to remove stickers from their hard hats.  The Unions’ application alleged that this direction was not lawful and reasonable.  Laing employees had been disciplined for their refusal to follow a direction to remove stickers from their hard hats.  The Unions submitted that the direction to remove the stickers from the hard hats was a misapplication of Laing’s obligations under the Building Code 2013 and was a form of adverse action (as the employees were engaging in industrial activity).

The FWC considered the Agreement to firstly determine whether or not it had jurisdiction to hear this issue.  It determined that the dispute must be about a matter arising under the Agreement. In particular, that clauses 6(a)(6) or 6(b)(3) (dealing with the Agreement objectives) and clause 18 (objectives and steps of the dispute resolution process) did not give rise to a dispute under clause 18.  Those clauses dealt with listening to another’s point of view and acting amicably to resolve differences of opinion.  The clauses also required leaders act to address concerns raised appropriately and in a timely manner.

As a result, the Application was dismissed. 

So what does this mean for employers?

Practically speaking and as the FWC has previously confirmed, an employer can direct an employee with respect to uniform requirements.  Should an employee fail to comply with the policy or directive, the appropriate disciplinary action would then be enforced.  It is important however, that employers make it clear in writing about changes in its expectations to prevent any employee arguing they were not aware of new requirements.  Of course, any disciplinary action should be conducted, as always, in accordance with the rules of procedural fairness.

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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