Fair Work Ombudsman v Australian Workers' Union
Citation: [2020] FCA 60
At a glance
- Penalty
- $18,000
- Employees affected
- 2
What happened
In March 2015, the Australian Workers' Union gave notice of protected industrial action at an Orica manufacturing plant in Deer Park, Victoria, where employees worked under an enterprise agreement. Two employees chose not to participate in the union's industrial action. In response, a AWU organiser petitioned to bring charges against these employees under the union's rules for 'gross misbehaviour' and 'failing to comply with a resolution or direction'. The AWU charged the employees on 16 March 2015. Between 29 April and 2 September 2015, the charges remained undetermined, effectively threatening the employees with potential fines, suspension, or expulsion. On 2 September 2015, the charges were withdrawn.
What was decided
The Fair Work Ombudsman successfully prosecuted the claim that the AWU contravened ss 340(1) and 346 of the Fair Work Act. The court found the AWU took adverse action against members who chose not to participate in industrial action. The charges constituted adverse action by threatening penalties and disability of membership. Justice Snaden imposed pecuniary penalties totalling $18,000 ($9,000 per member for breach of both ss 340 and 346). The court applied totality principles and considered the 'course of conduct' comprising the multiple months during which charges remained outstanding.
What it means for employers
While this case concerns union conduct rather than employer conduct, it confirms that adverse action against workers for not participating in protected industrial action is unlawful. Employers should not implement similar policies or disciplinary action against employees for declining to participate in strikes or protected action.
What it means for employees
Employees have the right not to participate in industrial action without facing adverse action from their union. Unions cannot bring charges or threaten penalties against members for choosing to work during protected action periods. Employees should report union misconduct of this type to the Fair Work Ombudsman.
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https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2020/2020fca0060Want more cases like this?
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This summary was drafted from the published decision and reviewed before publishing. It is general information, not legal advice. For your specific situation, speak to the Fair Work Ombudsman (13 13 94) or a qualified lawyer. About these summaries & corrections →