In an unusual twist of events a recent case held that the employer had suffered adverse action. More commonly, adverse action cases involve situations where the employer has allegedly taken adverse action against one or more employees. This cause of action, however, is available to a number of parties, including employers. 

In BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCA 1291 a claim was brought by BHP against the CFMEU and was based on one or more breaches of the enterprise agreement. The relevant enterprise agreement included a term that employees were required to work reasonable overtime.

The union had put up posters in the workplace which included an overtime policy directing employees not to work overtime beyond specified limits and handed out leaflets with the same directive. One poster said employees who breached the policy would be required to make a donation to charity and would be temporarily removed from the overtime roster.

Employers also have workplace rights

BHP brought a successful action against the union claiming that the union overtime policy breached the company’s workplace right to have employees work reasonable overtime, which included some un-rostered overtime. The union submitted there was no case to answer and chose not to provide any evidence for the hearing.

The federal court magistrate agreed that BHP had suffered a breach of its workplace rights, namely its entitlement to reasonable overtime from employees under the enterprise agreement; that false and misleading statements had been made by the union; and that the actions of the union constituted unlawful industrial action. The claim against other union officials for promoting and distributing the policy was not successful.  Penalties are to be determined at a later date.

Lesson for Employers

Put simply, the employer’s workplace right was their right to certain overtime from employees and the actions of the union breached this right.  Although not a common occurrence, employers are also able to bring adverse action claims: employers, as well as employees, have workplace rights.  

Sarah Waterhouse – Solicitor – BlandsLaw

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