Focus Workplace Relations – March 2008

In this issue: we look at restrictions on industrial action orders; use and misuse of right-of-entry permits; challenging medical certificates; and false and misleading statements about union membership.

• Restrictions on industrial action orders
• Use and misuse of entry permits
• When can medical certificates be challenged?
• Union threats under scrutiny

Restrictions on industrial action orders

In brief: The Federal Court has identified some important restrictions on Australian Industrial Relations Commission orders preventing or stopping industrial action. Partner Jamie Wells and Senior Associate John Naughton report.

How does it affect you? Orders to prevent or stop industrial action need to be drafted with precision, and consistently with the available evidence about the industrial action being organised, threatened or occurring. Despite the urgency usually surrounding these applications, the Federal Court's approach makes it more difficult to frame orders both to the court's satisfaction and to be effective in preventing or stopping industrial action.

Background

In response to an application by TNT (Australia) Pty Ltd and Riteway Transport Pty Ltd, the AIRC made orders preventing the Transport Workers Union of New South Wales (the TWU) from taking industrial action.

The orders were made under section 496(1) of the Workplace Relations Act 1996 (Cth) (the Act), which provides:

If it appears to the Commission that industrial action by an employee or employees, or by an employer, that is not, or would not be, protected action: is happening; or is threatened, impending or probable; or is being organised; the Commission must make an order that the industrial action stop, not occur and not be organised.

Ultimately, the TWU appealed to the Federal Court, alleging that the breadth of the AIRC's orders went beyond what s496 of the Act allowed.¹   

Legislative change

Before WorkChoices, s127 of the Act gave the AIRC a broad discretionary power to order industrial action to stop or not occur. However, amendments brought about by WorkChoices compelled the AIRC to make orders whenever unlawful industrial action was being organised, threatened, or taking place.

The decision

On appeal, the TWU asserted that s496 could not have been intended to require the AIRC to make an order that industrial action stop, not occur and not be organised unless there was evidence that industrial action was, relevantly, occurring, being threatened, and being organised.

A majority of the Federal Court accepted this technical approach, agreeing that s496 required the AIRC to make orders:

• that industrial action stop, only if it appeared to the AIRC it was occurring;
• that industrial action not occur, only if it appeared to the AIRC it was threatened, impending or probable; and/or
• that industrial action not be organised, only if it appeared to the AIRC it was being organised.

The Federal Court's interpretation means there must be a factual trigger for each order. Employers will not be granted orders preventing threatened industrial action unless evidence about the threat is available. Similarly, if industrial action is taking place, but there is no evidence that further industrial action is being contemplated (even if that is likely), the order will be limited to ending the industrial action being taken. An employer would need to make a separate application if evidence of a further type of industrial action emerged.

Alternate view

The dissenting judge observed that the majority's approach may lead to impractical results. In particular, he:

• questioned an interpretation that would not permit an order that industrial action not occur when there was evidence it was being organised; and
• accepted that s496 should be construed as requiring the AIRC to make orders preventing further industrial action being organised or threatened, even if the only finding was that industrial action was happening.

In view of the way these applications are usually heard under extreme urgency, there is much to be said for this dissent. However, while the majority view stands, applicants for orders must assess the available evidence carefully and frame their application (or at least the final orders) with the specific action in mind.

top of page

Use and misuse of entry permits

In brief: Permit holders entering an employer's workplace must not abuse that right. Partner Jamie Wells and Law Graduate Will Brennan report.

How does it affect you? Employers are generally not permitted to attach conditions to a permit holder's right of entry. An employer may – in appropriate circumstances – nominate the location for discussions between permit holders and employees, effectively allowing employees to  elect whether to participate or not. When an employer suspects that a permit holder is entering the workplace to poach staff or for another improper purpose, the employer is entitled to seek orders limiting, suspending or revoking the permit.

Background

BGC (Australia) Pty Ltd operates the 'Brickworks' site in Western Australia. Some of its employees are members of the Construction, Forestry, Mining and Energy Union (the CFMEU).

In November and December 2007, CFMEU representatives were refused entry to the Brickworks site, despite holding valid right-of-entry permits under the Workplace Relations Act 1996 (Cth) (the Act).

BGC claimed it refused entry because the CFMEU representatives were attempting to induce employees at the Brickworks site to leave their employment and take up higher paying jobs with another employer. BGC demanded, as a condition of entry to the Brickworks site, the CFMEU give an undertaking that permit holders would not attempt to induce any Brickworks site workers to terminate their employment. BGC also tried to reserve a right to have witnesses present during discussions between permit holders and employees.

The CFMEU claimed before the Australian Industrial Relations Commission (the AIRC) that the right of entry had been exercised validly and no conditions should be imposed.² 

The decision

The AIRC agreed with the CFMEU, ordering that:

• there was insufficient evidence of the alleged poaching; and
• permit holders must be allowed to act in accordance with their permits.

The AIRC noted that, even when an employer discovers an attempt by a permit holder to poach staff (or to effect some other improper purpose), the employer should not take the law into its own hands by refusing entry or imposing conditions upon entry. Rather, the AIRC observed that poaching was likely to be considered improper, entitling an employer to formal relief.

The AIRC found that imposing a right for an employer representative to listen in on union meetings with employees would defeat the purpose of the right-of-entry provisions. However, it accepted that:

• it was permissible for an employer to ask employees about the content of a union meeting to determine whether the content was in any way improper; and
• an employer may refuse to allow union meetings to be held in the employees' break areas, to enable employees to choose whether to participate or not.

top of page

When can medical certificates be challenged?

In brief: Dismissing an employee for taking sick leave when they are not sick may be legitimate, even if the employee has a medical certificate. Partner Jamie Wells and Lawyer Andrew Stirling report.

How does it affect you? It is unlawful to dismiss an employee for being temporarily absent from work because of illness or injury. If an employee obtains a medical certificate justifying their absence from work, this will almost always be sufficient evidence that their temporary absence is because of an illness or injury. Although a certificate is usually clear evidence of illness or injury, it is not beyond being challenged if there is clear evidence to the contrary. Where an employee obtains a medical certificate but their absence is not because of illness or injury, it will not be unlawful to dismiss the employee.

Background

Mr Anderson was an employee of Crown Melbourne Ltd and an avid AFL fan. Essendon's last game of the season was in Perth against the West Coast Eagles on 1 September 2007 and would be the last time Kevin Sheedy would coach the team and the last time James Hird would play. In early August 2007, Mr Anderson decided he would attend the game, and bought a ticket and booked airfares to Perth.

Mr Anderson was rostered on to work on 1 September 2007 and asked management whether he could drop the shift so that he could attend the game. This proved unsuccessful, and believing he had no chance of successfully applying to take annual leave, Mr Anderson told management he would obtain a medical certificate for the day. Management counselled Mr Anderson against doing this but, against their advice, he obtained a medical certificate and went to the game. Upon his return, he was dismissed for misusing sick leave.

Mr Anderson commenced an unlawful termination claim in the Federal Magistrates Court,³ arguing that his dismissal was in response to his temporary absence for reason of his illness or injury.

Decision

The court held that Mr Anderson's absence from work was temporary, and that he was required to obtain a certificate signed by a registered health practitioner verifying that the absence was for reason of illness or injury. The court concluded that, despite having a medical certificate to the contrary, Mr Anderson was in excellent physical health, was not suffering from depression or from any other diagnosable medical condition, and that he was not ill on 1 September 2007.

Importantly, the court stated:

[A] medical certificate from a qualified medical practitioner within the practitioner's area of expertise is prima facie to be accepted. It would only be in the most unusual and exceptional circumstances that an employer and/or by inference a court would not accept the validity of such a certificate.

The flaw in Mr Anderson's argument was the assumption that a certificate was conclusive proof of illness or injury. Rather, the illness or injury must still be demonstrated, and supported by a certificate.

The court characterised Mr Anderson's dismissal as being for misconduct, for the misuse of sick leave.

The case demonstrates that when an employer can show – with strong supporting evidence – that a medical certificate does not disclose a proper reason for the temporary absence, it may lawfully terminate an employee's employment. Prudence would suggest further enquiry of the medical practitioner's basis for issuing the certificate, as rarely will the claim be as bold as that put by Mr Anderson.

top of page

Union threats under scrutiny

In brief: Claims based on threats about the need for union membership will depend almost entirely on the specific words used. Senior Associate Della Stanley reports on a Federal Court decision dismissing a claim about misleading statements on union membership.

How does it affect you? Employees cannot be forced to join a union. It is unlawful for a union to try. It is also unlawful to misrepresent the law and to state that membership at a site is compulsory. When a dispute escalates, a court will take a forensic approach in deciding whether or not unlawful statements have been made. General impressions about what was said or what occurred will usually be insufficient to convince a court that a false or misleading representation was made. When important conversations or meetings take place in the workplace, employers should prepare accurate notes for future reference. Even in the midst of heated discussions, it is important to maintain precise records of key words and their context.

Background

A battle for union supremacy arose at two building sites in New South Wales. During heated discussions with some non-union workers, a union organiser associated with the Construction, Forestry, Mining and Energy Union (the CFMEU) made a threatening remark to the effect that the site 'was going to be a union site'.

Section 298SC(c)⁴ of the Workplace Relations Act 1996 (Cth) (the Act) prohibited false or misleading representations about another person's obligation to join an industrial association. The legislation is designed to thwart attempts to mislead workers into believing they have to join a union to work.

When the case went to court, the trial judge found the union organiser's statement not to be false or misleading. Rather than describing the site at the time, the union organiser was announcing a future intention or objective. This decision followed a detailed analysis of several witnesses' evidence about the conversation in question and extensive cross-examination about the specific words said and their context.

The decision

On appeal to the Full Federal Court,⁵ only one of the judges agreed with the trial judge's analysis. The majority found that there could still be a contravention of s298SC(c) when a person expressed themselves in terms of their objectives, rather than in terms of an existing factual situation.

However, the court's in-depth analysis of the conversation in question, and the fact that the court was ultimately split 2:1, illustrates how difficult it can be to predict how a dispute might be determined when the result hinges on a particular conversation, involving witnesses with differing recollections of what took place and no (or little) contemporaneous evidence regarding the conversation.

Employers can improve their prospects by recording carefully and thoroughly what was said and what was done, making it easier for the court to accept that offending statements were made.

Footnotes

1. Transport Workers Union of New South Wales v Australian Industrial Relations Commission [2008] FCAFC 26.
2. Construction, Forestry, Mining and Energy Union v BGC (Australia) Pty Ltd [2008] AIRC 55.
3. Anderson v Crown Melbourne Ltd [2008] FCMA 152.
4. Pre-WorkChoices reforms. The equivalent provision is now at s805(1)(c) of the Act.
5. Hadgkiss v CFMEU [2008] FCAFC 22.

top of page

For further information, please contact:

Jamie Wells Partner, Brisbane Ph: +61 7 3334 3268 Jamie.Wells@aar.com.au		Tim Frost Partner, Sydney Ph: +61 2 9230 4930 Tim.Frost@aar.com.au
Peter Arthur Partner, Sydney Ph: +61 2 9230 4728 Peter.Arthur@aar.com.au		Rowan Kelly Special Counsel, Perth Ph: +61 8 9488 3804 Rowan.Kelly@aar.com.au
Gavin MacLaren International Partner, Singapore Ph: +65 6535 6622 Gavin.MacLaren@aar.com.au		Adam Lunn Partner, Melbourne Ph: +61 3 9613 8481 Adam.Lunn@aar.com.au

Home | Top of page | Disclaimer | Privacy | Sitemap
Allens Arthur Robinson - a leading international law firm
© 2008 Allens Arthur Robinson, Australia | contactus@aar.com.au