Court slugs employer for denying protesters leave

The Government has been fined for a ‘serious’ breach of employee entitlements – a clear warning for every boss to understand your staff’s rights. By PETER VITALE.

By Peter Vitale

In a warning to employers of all sizes, the Federal Court has fined the Federal Department of Workplace Relations $30,000 for a “serious contravention” of the Workplace Relations Act freedom of association provisions.

The decision to fine a Federal Government department highlights the need for employers to understand the difference between unlawful industrial action and legitimate requests by employees to enjoy the benefit of their legal entitlements.

In November 2005, the Australian Council of Trade Unions organised a “Day of Protest” in opposition to the then proposed WorkChoices legislation. The Community and Public Sector Union (CPSU) encouraged its members, many of whom were public servants, to attend the rally.

The Department of Workplace Relations is responsible for advising all other government agencies about industrial and workplace relations matters. It issued all other government agencies with a memorandum advising that requests for leave made by employees for the purpose of attending the rally should be refused.

The CPSU commenced the Federal Court action alleging that the Commonwealth was in breach of freedom of association provisions of the Workplace Relations Act because it sought to discriminate against employees who were union members by refusing them leave.

The Court emphasised that attendance at the rally could only be potentially considered industrial action by the employees, if their non-attendance at work was unauthorised.

The issue of whether leave should be granted, thus making the non-attendances authorised and therefore not industrial action, was a separate issue. In determining the basis upon which leave was granted, the Court considered that the appropriate consideration was the operational requirements of each of the relevant government agencies.

The Court found that the department memo was easily interpreted to mean that attendance by employees at the rally was industrial action regardless of whether they had leave approved or not. To the extent there was any question about what the memo meant, the department did nothing to correct this impression.

As a result, the Government was found to have unlawfully prejudiced its employees’ position because of their membership of the CPSU.

The Court considered this to be a serious breach of the act because the department was responsible for advising other government departments of their obligations.

It fined the Department of Workplace Relations $30,000 of the maximum $33,000 available under the act. It was also noted that because of the large number of employees who were members of the union, the actions of the department potentially constituted a separate breach in relation to each employee, but this issue was not pressed.

The lessons for employers:

• Employees are entitled to request leave for their own private purposes.
• Don’t assume that employees engaging in activity in support of union campaigns are necessarily engaging in industrial action.
• Employers aren’t obliged to grant leave to any employee who wishes to attend a union rally – the operational requirements of the business should be the major, and in most cases the only, consideration for business.
• Seek advice if you are confronted with the prospect of mass absences from work – dealing with it the wrong way could see your bank balance severely dented.

Peter Vitale is the principal of CCI Victoria Legal .