It has been held that the action of an employee holding up an anti-scab sign during protected industrial action when the employee was not rostered to work was not the exercise of a workplace right within the meaning of sec 340 and 341 of the Fair Work Act because the employee had not at the material time been rostered to work and was thus not undertaking protected industrial action. CFMEU v BHP Coal Pty Ltd (2012) FCA 1218. In this case the CFMEU was successful in having a finding recorded against BHP Coal that it had breached sec 346 of the Act when it terminated the employee’s employment which was found by the Federal Court to be for participating in lawful activity organized by a union.
Justice Jessop found that it was not necessary that it be proven that the display of the sign (said to be more than offensive) was lawful, but that it was enough for the activity, in this case the protest, of which the conduct formed part, to be lawful.
However in Fair Work Ombudsman v MUA (2014) FCA 440, delivered on 6 May 2014, Justice Siopis of the Federal Court distinguished the BHP Coal case when he found that a particularly offensive anti-scab poster which named several employees did prejudice those employees in their employment and agreed with the Ombudsman’s case that the poster “carried imputations that the employees were disloyal, immoral and of a ‘low life status’ and thus “the language of the posters did cast aspersions on the honesty, integrity and reputation of each of the named employees and that the words were defamatory.”
“It invited the reader to treat each of the named employees as devoid of human dignity. The recognition of respect for the human dignity of an individual is a value which finds expression in Australian law.”
The judgment, which is yet to decide the issue of compensation, suggests that a significant award of compensation may be warranted for the conclusion reached by the court that the union had contravened sec 346(c) of the Act by taking adverse action against the employees for not engaging in industrial activity.