Unprotected industrial action

Unprotected industrial action must have two elements, these being:

• the action must be industrial action, and
• the industrial action is not protected.

Industrial action does not include action by an employee if:

• the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety, and
• the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.[1]

Action found to NOT be protected industrial action

ASP Ship Management Pty Ltd v Maritime Union of Australia, The

ASP Ship Management Pty Ltd v Maritime Union of Australia, The [2015] FWC 7898 (Cambridge C, 17 November 2015)

Permission to appeal refused [2015] FWCFB 8057 (Watson VP, Gooley DP, Gostencnik DP, 4 December 2015), [(2015) 254 IR 143].

Facts

Employees of ASP Ship Management, who were members of the MUA, were refusing to perform work as directed to enable the vessel MV Portland to sail from Portland, Victoria, to Singapore where the ship was to be sold. ASP made an application for an order that the industrial action stop which was granted at first instance. On appeal, the MUA advanced that the action taken was not industrial action on the basis that the direction of the employer was not a reasonable or lawful direction. Further, the union asserted that the one-way voyage of the MV Portland from Australia to Singapore was outside the scope of employment and therefore did not constitute industrial action.

Outcome

The Commission found that uncertainties in relation to the details of the voyage (such as the arrangements for repatriation to Australia) did not render the direction of the employer unreasonable. The MUA’s argument that the direction fell outside the scope of employment was also rejected.

The Commission determined that the action organised by the union and taken its members satisfied the definition of industrial action under the Act and that such action was not protected industrial action.

Relevance

The employees had legitimate concerns about particular arrangements applicable to the performance of work which should have been addressed with the employer directly in the first instance and then by making an application to the Commission if the concerns could not be resolved. The existence of such concerns could not validate the taking of unprotected industrial action.

Action found to NOT be protected industrial action once suitable alternative work made available

The AWU v United Group Resources Pty Ltd; AFMEPKIU v United Group Resources Pty Ltd

The Australian Workers' Union v United Group Resources Pty Ltd; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v United Group Resources Pty Ltd [2010] FWA 14 (Blair C, 7 January 2010).

Facts

Employees were advised that a substance suspected to be asbestos had fallen onto a scaffold in the prefrack area during work on the Shell Geelong refinery refurbishment. Employees were advised to remain in the sheds until the matter was resolved. The incoming night shift presented for work at 7.00pm but did not commence work. At around 9.30pm proposal was put forward by the respondent that work could commence in other areas. This was rejected by the workers and after further discussions the night shift employees left the site. The issue also impacted the day shift on the following Monday morning, after more suspect material had been discovered over the weekend. The day employees left the site after being advised at around 4.00pm that they would not be paid. In both instances the night shift and day shift employees believed that there were genuine concerns regarding occupational health and safety.

Outcome

The Commission was satisfied that the nightshift employees were not taking industrial action for the first two and half hours of their shift because, during that time, they held a reasonable concern about an imminent risk to their health or safety relating to the finding of asbestos, sufficient to activate the exclusion in s.19(1)(c). However, later in the shift suitable alternative work, within the meaning of s.19(1)(c)(ii) was available to them which would have enabled them to complete their shifts. They left the site rather than perform that suitable alternative work and in so doing commenced unprotected industrial action. In relation to the day shift on the Monday, the Commission was satisfied that for part of the shift the employees did hold a reasonable a concern about an imminent risk to their health and safety but their decision later in the day to leave the workplace was due to being advised that they would not be paid, rather than because of their concerns about their safety.

Relevance

The ceasing of work due to a reasonable concern about an imminent risk to health or safety may, in some circumstances, fall within the exceptions to the meaning of industrial action. The exception would only arise where alternate, appropriate and safe work is unavailable to be performed by the employees, either at the same site or another workplace. Importantly, where suitable alternative duties do not become available until some time after a risk is identified, it is possible that a refusal by employees to perform work may not be industrial action for particular period, but will be industrial action for the period after that suitable work did become available.

Dismissal for active participation in unprotected action – Found to be valid reason for dismissal

Petrunic v Q Catering Limited T/A Q Catering

Petrunic v Q Catering Limited T/A Q Catering [2019] FWC 3981 (Hamberger SDP, 7 June 2019).

Facts

The applicant was dismissed after an investigation into her role in actively participating in unprotected industrial action by in attending her workplace on a rostered day off, as well as encouraging other employees to participate in unprotected industrial action by making and distributing posters.

The unprotected industrial action, and the associated blockade of staff vehicles, meant that the catering for flights due to leave from Sydney’s international and domestic terminals on the morning of 15 June 2018 were not loaded. This resulted in 50 flights and over 7,500 customers being adversely affected. In particular 12 international flights were delayed, four of them by over two hours, (with consequent disruption to flight schedules that extended into that afternoon), and three flights to New Zealand departed without catering. There were also 22 domestic flights and 13 regional flights which were delayed by up to 31 minutes and departed without catering.

Outcome

The Commission was satisfied that the respondent had a valid reason to dismiss the applicant because of her conduct on 15 June 2018. The Commission also had regard to the dishonest responses the applicant gave to her employer when she was given the opportunity to respond to the allegations made against her.

The Commission was satisfied that the applicant’s dismissal was neither harsh, nor unjust nor unreasonable. Accordingly, it was not unfair. The application was dismissed.

Relevance

The applicant was an active participant in the blockade of Q Catering’s premises. While she was not actually at work that day, she supported and encouraged her colleagues to engage in the stoppage. The stoppage and the associated blockade was intended to, and did, have the effect of significantly impeding the respondent’s operations that day, in support of certain employee demands. The action was not ‘protected’ by the Fair Work Act. The applicant’s conduct in this regard was fundamentally inconsistent with the obligations she owed to her employer.