Adverse Action & Union Activity under the Fair Work Act: Culture & Practice Lisa Heap Executive Director Australian Institute of Employment Rights

What are the cues about workplace culture & practice that we can take from the FC decision in Barclay v Bendigo TAFE?What are the cues about workplace culture & practice that we can take from the FC decision in Barclay v Bendigo TAFE?

Cues An object of the Act is the promotion of fairness & representation at work.[14]An object of the Act is the promotion of fairness & representation at work.[14]

Cues Work place rights (and laws) as part of a suite of human rights.[15-17]

Cues Where human rights are concerned protective & remedial legislation should not be narrowly construed [17]. Why?

Cues Protection of union representatives from victimisation as a key foundation stone of our industrial history.[18-21] Why? What particular role do they play?

Just a thought! What is the connection between what has happened in this case and what we see happening currently in Egypt and Libya?

What is it about freedom of association? The individual right to come together with other individuals and collectively express, promote, pursue and defend common interests. A fundamental human right. Extends to the right to freely form and join trade unions and participate in their activities.

The challenge for employers To situate themselves, their activities, responses and approaches and what they do within their individual organisations within the context of a society and community.To situate themselves, their activities, responses and approaches and what they do within their individual organisations within the context of a society and community. That is to understand and recognise why freedom of association is important to our democracy.That is to understand and recognise why freedom of association is important to our democracy.

The Challenge for unions To understand their existence as an expression or symbol of the human rights of individual workers.To understand their existence as an expression or symbol of the human rights of individual workers. To take responsibility for the role they play as as a cornerstone in our democracy.To take responsibility for the role they play as as a cornerstone in our democracy.

The Challenge for practitioners To move beyond complianceTo move beyond compliance To culture To achieve compliance

A framework for understanding: Australian Charter of Employment Rights Good Faith PerformanceGood Faith Performance Work with DignityWork with Dignity Freedom from Discrimination & harassmentFreedom from Discrimination & harassment A safe & healthy workplaceA safe & healthy workplace Workplace DemocracyWorkplace Democracy Union membership & representationUnion membership & representation Protection from unfair dismissalProtection from unfair dismissal Fair minimum standardsFair minimum standards Fairness & balance in industrial bargainingFairness & balance in industrial bargaining Effective dispute resolutionEffective dispute resolution

If you were advising Bendigo TAFE with the benefit of having read the majority decision in this case what would you say?If you were advising Bendigo TAFE with the benefit of having read the majority decision in this case what would you say?

A different approach?  What is the real issue? Are there fraudulent practices occurring? Are staff being intimidated into carrying out these practices? What processes can we use to investigate this?

Given the union has raised the issue how can we work with the union to solve this problem?  An approach to the union delegate and to the union office with a request to meet to identify concerns and solve the problem.

The employee as a representative   No threat to the individual employee (delegate) or their employment. If there were concerns about the statements made by the delegate - for example they were not substantiated or were expressed in an inflammatory way this can be taken up with the union office with a discussion about establishing a protocol about how these things could be dealt with in the future.