The High Court has restored confidence for employers by ruling that employees cannot engage in abusive conduct designed to offend and belittle others and still hide behind the protections of the Fair Work Act. AREEA senior workplace policy adviser Lisa Matthews explains.

On 16 October 2014, the High Court by a three-to-two majority made an important finding regarding the application of the Fair Work Act’s adverse action provisions in a case which involved the CFMEU and BHP Coal Pty Ltd.

In the original November 2012 decision, Federal Court Justice Chris Jessup ruled on the case where an active CFMEU member with 24 years’ service with BHP Coal had held up “scab” signs to intimidate passing motorists and non-striking employees on a picket line.

This was said to have intimidated female employees who complained to management. The picket line was in the context of negotiations for a new enterprise agreement at the company’s Queensland mine sites.

In the original decision, Justice Jessup found the man’s conduct was protected under the Fair Work Act‘s adverse action provisions because he was advancing the views of his union which was considered lawful industrial activity over which he could not be disciplined.

Under s346(b) and s347(b)(ii) of the Fair Work Act, participation in lawful activity organised by a union is protected from adverse action, as is advancing or representing the views of one’s union under s347(b)(v).

The adverse action the company took against the man was to stand him down and later terminate his employment. The original judge ordered the man to be reinstated after rejecting the company’s claim it stood him down for breaching its workplace conduct policy and “expected workplace behaviours”.

The judge found the man’s conduct while taking part in the industrial activity could not be divorced from the industrial activity itself, ie the picket line, and his conduct was therefore protected from any adverse action.

BHP Coal successfully appealed that decision to a Full Court of the Federal Court, with the CFMEU later appealing to the High Court.

In last week’s High Court decision, the majority vindicated the actions of the employer and general manager in standing the man down and terminating his employment, actions clearly designed to ensure the wellbeing and safety of all staff.

Implications for employers

The decision confirms that while employees have lawful rights to protest and engage in industrial activities, they must continue to abide by employers’ policies and standards of appropriate conduct while doing so.

The decision means offensive conduct within the context of industrial activities can provide a valid reason for an employer to take adverse action against an employee as long as the industrial activities themselves were not a motivating factor in taking the adverse action. The High Court found in this case that offensive conduct could be divorced from the industrial activities it occurred within and be actioned appropriately.

The decision also confirms, as did the High Court’s September 2012 decision in Board of Bendigo Regional Institute of TAFE v Barclay, that the decision-maker’s motivation will be key in deciding what prompted the adverse action to be taken, i.e. whether it was over the industrial activities themselves or some other actionable behaviour within those activities.

To view the High Court decision, click here.