In a recent Fair Work Commission decision of Deputy President Gooley, the AMWU has secured an interim order for reinstatement of a former shop steward whose employment was terminated contrary to the good faith bargaining obligations on parties in enterprise agreement negotiations. This appears to have been the first instance where a bargaining representative has successfully relied on these provisions to get a worker reinstated.
Protected industrial action and the termination of employment
The AMWU had been engaged in enterprise agreement negotiations with Wedderburn for some time. In September 2015, in the course of these negotiations and during protected industrial action at the Wedderburn site, the AMWU’s shop steward spoke to a number of media outlets about the poor conduct of Wedderburn in the negotiations and the successful ballot for strike action.
Though the parties reached an in-principle agreement on 17 September 2015, the AMWU notified further industrial action on 2 December 2015 when an agreed document was not concluded.
On 12 January 2016, in a meeting, Wedderburn alleged that the shop steward had engaged in misconduct by making the unauthorised comments to the media in September 2015 and disclosing confidential information regarding clients in contravention of his contract of employment. After he left the meeting early, Wedderburn then accused him of abandoning his employment and a breach of confidentiality.
The shop steward was issued with a formal warning, disputed by the AMWU principally for the lapse of time between the events occurring and the allegations being levelled shortly after industrial action had recommenced.
Subsequently, on 12 February 2016, the shop steward left a jobsite prior to his formal finish time of 4:30pm. It was the evidence of the shop steward that he was entitled to overtime if he returned home after 4:30pm. Accordingly he left at 3:00pm, as his home was approximately 90 minutes away, to comply with an overtime ban which formed part of the protected industrial action taken by members of the AMWU.
On 15 March 2016, Wedderburn alleged, amongst other matters, that the shop steward had not taken protected industrial action as he had refused to perform work during ordinary hours and had therefore refused to obey a reasonable direction to complete the work. On 17 March 2016, the shop steward was called into a meeting and his employment was terminated.
The legislative framework
Section 228(1)(e) of the Fair Work Act 2009 (Cth) requires bargaining representatives in enterprise agreement negotiations to refrain from capricious or unfair conduct which undermines freedom of association or collective bargaining.
Section 231(2) of the Act provides that the Commission can make an order for reinstatement of an employee where they have been terminated, “if the termination constitutes, or relates to, a failure by a bargaining representative to meet the good faith bargaining requirement referred to in paragraph 228(1)(e)…”
In order to secure an interim order pursuant to these provisions, the AMWU was required to demonstrate that it had an arguable case and that the balance of convenience favoured the making of the order. The AMWU argued that the reason for, and manner of his termination, was unfair and capricious.
Decision of Deputy President Gooley
In reinstating the shop steward, Deputy President Gooley held that it was arguable that the shop steward’s conduct was protected industrial action and a decision to terminate someone’s employment on this basis was unfair and contrary to the general protections provisions of the Act. Moreover, it was arguable that in terminating his employment, Wedderburn was motivated by the belief that he was responsible for the protected industrial action taken by other workers.
Her honour was:
“…satisfied that there is an arguable case that terminating a shop steward who has been part of the bargaining team since bargaining commenced and who plays an important role in ensuring the views of the employees are conveyed to the union will undermine collective bargaining. Further I am satisfied that there is an arguable case that such conduct would undermine freedom of association. Employees must be free to join unions or not join unions. They must be free to represent employees in bargaining. The Act provides that their involvement in these activities must not result in adverse action."
Ultimately, the balance of convenience also favoured the making of the order, in that some of the damage suffered by the AMWU and the shop steward was not compensable and he could successfully be reintegrated into the workplace.
While a final decision in the matter has not been handed down, this appears to have been the first successful use of these provisions to secure the reinstatement of a worker in the course of enterprise agreement negotiations. Unlike unfair dismissal or general protections claims involving dismissal, these provisions do not require that an application be filed within 21 days of termination. In view of this recent decision, it may be that these provisions are used more often by representatives of workers.
Decision: "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)  FWC 2260