Businesses wanted pattern bargaining gone altogether, but no such luck – the report hasn’t recommended any changes.
Here’s another win for business. The report has recommended that when an employee asks to be transferred to a new division within the existing business, the terms and conditions of that new division should apply.
Again, there’s a balance here between good and bad. Although the panel recommends that FWA be given greater power to resolve disputes about the frequency of union visits, it still says a permit holder can enter a workplace to investigate a breach following the end of that member’s employment.
This is quite a technical recommendation, so look closely.
An employee at a Bendigo TAFE sent an email to union members claiming that some employees had engaged in serious misconduct. In those emails, the employee – Barclay – identified himself as the president of his union sub-branch.
The TAFE then asked him why Barclay didn’t present that alleged misconduct to management. He was suspended on full pay.
Barclay said this constituted “adverse action”, and took the TAFE to the Federal Court. The majority decision was the email was sent as a union official, and was engaging in industrial activity.
It also found that when considered objectively, the reason the adverse action was taken against Barclay was because of that participation in industrial activity. And as a result, the TAFE was found in breach of the Fair Work Act.
Following so far?
This has been a huge case in the industrial relations world because it’s the first of its kind – especially now that it’s been sent to the High Court.
But in the Fair Work review, the panel actually took the side of a dissenting judge – Justice Lander – and says that even if the High Court rules in favour of Barclay, it recommends the government give employers a broader defense in adverse action cases.
“If the High Court adopted his view, employers would have access to the defence that their belief about the lawfulness of their action was honestly held and reasonable considering all of the circumstances,” it says.
“The panel recommends the government give employers a broader defence, especially considering employers bear the onus of proof.”
Patrick Stafford is a freelance journalist and a former deputy editor of SmartCompany.
