The Fair Work Act makes it permissible for employees to engage in “industrial action” under certain circumstances. Crucially, for such action to be ‘protected’ (i.e. lawful) it must meet a number of preconditions, including that it must be taken in the context of enterprise bargaining negotiations. In order to be protected, industrial action must be supported by a ‘protected action ballot’ and parties seeking to take the industrial action must be ‘genuinely trying to reach an agreement’. If these requirements are not met, the action will not be protected, and therefore, an employer will have greater grounds to take disciplinary action against participants in response.
“Industrial action” by employees can encompass a variety of actions, such as (but not limited to):
• performing work in a manner different to how it is normally performed
• adopting a practice that restricts, limits or delays the performance of work
• a ban, limitation or restriction by employees on performing or accepting work
• a failure or refusal by employees to attend work or perform any work
This was the case in June 2018, where employees of Qantas’ subsidiary catering company, Q Catering, walked off the job to protest the recent dismissal of a co-worker, and remained away from work for four hours. In that time, employees waved signs, chanted slogans and parked two cars in front of the gates to the airport’s dispatch dock, so no meals could be delivered to planes. This caused significant delays to over 50 regional and international flights, with many flights departing without catering.
The key issue was that the protest, orchestrated by TWU delegates, was organised due to the dismissal of an employee. As the industrial action was not organised in the context of enterprise agreement negotiations nor authorised by a protected action ballot, it was thus considered to be unprotected industrial action.
Following a thorough investigation, most employees received final warnings for their participation in the walk-off. However, it was found that the Applicant (an employee with over 20 years’ service) had prior knowledge of the proposed action, made signs, came in on her day off to distribute those signs and participated in the action. The Applicant subsequently lied during the course of meetings with her employer about the extent of her involvement in the unprotected action. She was ultimately dismissed for her participation in the action and her dishonesty.
The Applicant argued that her dismissal was unfair because her participation wasn’t materially different from that of the rest of her co-workers. However, the Commission found that there was a difference between the majority of workers, who were only informed of the proposed action that morning and essentially ‘herded’ by the TWU to the dispatch dock, and the Applicant, who came in on a rostered day off to join and inflame the strike action.
The Commission commented that caution should be shown when seeking to compare differential treatment amongst employees, as there may be factual and subjective issues at play. In this instance, the Commission clearly agreed with Q Catering’s differential treatment between employees who were mere ‘participants’ in the unprotected action, as opposed to the Applicant who had prior knowledge of the action that was to take place.
Lessons for employers
Employers have the right to engage in disciplinary proceedings against employees who engage in unprotected industrial action.
However, even in such circumstances, the decision to dismiss an employee should always be well considered, even when an employee’s actions seem obviously contrary to their ongoing employment. Employers should ensure that any dismissals are documented, and that procedural fairness is accorded to all employees.
Case Study: Loata Petrunic v Q Catering Limited T/A Q Catering [2019] FWC 3981
