Trade union conduct is constantly changing, and our team have observed trends that are reshaping the boundaries, and that have already begun to impact our clients.

Policy Measures: increased scrutiny on trade union conduct

On the policy front, the conservative government has implemented three measures addressing unlawful behaviour by unions and their members based on the findings of former High Court Justice John Dyson Heydon AC QC in the Royal Commission into Trade Union Governance and Corruption in 2015.

Two key measures passed in late 2016.

The Australian Building and Construction Commission (ABCC) has been reformed and is expected to repeat the effective reform of union practices achieved by the previous ABCC in the mid-to-late 2000’s. The ABCC regulates building and construction industry participants its functions include implementing a code of practice to regulate workplace practices and taking action to prosecute breaches of workplace laws. Sanctions can be imposed to exclude companies from tendering for government funded building work. The return of the ABCC has generally been welcomed by the construction industry.

A new regulator was introduced. The Registered Organisations Commission (ROC) was established to enhance governance and financial accountability of trade unions following multiple findings of misuse of union funds. The regime draws upon statutory duties placed upon company directors under Australia’s corporations law. Financial reporting and disclosure obligations have been strengthened, and penalties for non-compliance have increased, including criminal offences for serious breaches. New whistle-blower protections have also been introduced.

Further new laws have been proposed to prohibit making or receiving corrupting payments at the direction of unions, bringing greater accountability to unions and their office holders.

Novel application of anti-bullying protections

A recent decision of the Fair Work Commission (FWC) in its anti-bullying jurisdiction provided a novel application of existing law to address unlawful behaviour by unions in industrial disputes. The decision recognises that abusive or offensive conduct directed at other workers won’t be excused in the heat of industrial battle.

The catalyst for the dispute was a change of contractor providing maintenance services at the site on terms opposed by the unions. The dispute was heated, and a picket at the site continued for almost six months. Drawing on the power to name and shame, the union-led campaign included extensive use of social media (some against individual workers), a boycott of the targeted company’s products and fundraising activities.

A key priority for the new contractor was to protect its workers from being bullied at the site and on social media. The FWC made orders against unions and officials to restrain conduct directed at workers entering or leaving the site during the dispute.

The FWC orders prevented:

  • photographing, filming, or digitally recording any of the workers (or attempting to do such things);
  • abusing or harassing workers, including calling out offensive or insulting names, including “scab” or “dog”;
  • accosting or obstructing workers;
  • holding up any signs or material at the picket which contain offensive or insulting language towards the workers; and
  • approaching a worker, any vehicle driven by a worker or a vehicle in which a worker is a passenger.

The FWC determined it appropriate to make orders protecting the identities of workers seeking orders. This should provide comfort to workers subjected to similar tactics in future.

This matter represents the first time the FWC has made anti-bullying orders against a union and picketers in relation to protest activity and represents a novel and effective use of the FWC’s anti-bullying jurisdiction by employers. Before this decision, the FWC’s anti-bullying jurisdiction, which commenced in 2014, has most often been used by individual employees against employers and managers.

Traditional employer responses to picketing have involved seeking injunctions to stop such activity, which can be time consuming and costly. The FWC’s anti-bullying jurisdiction supplements these options with a quick and cost-effective alternative to counter intimidation during union organised picketing.