Although unprotected industrial action is unlawful under the Fair Work Act 2009, it is permissible for employees to take industrial action such as stop wpork meetings and so forth under the safety exception, typically where there is an imminent risk to their health or safety. It follows that it will not be unlawful for an employer to pay employees under these circumstances.
In CEEEIPAS Union of Australia v LCE Queensland Pty Ltd (2013) FWC 2014 Deputy President Richards of the Fair Work Commission decided that the safety exception aplied even though is was later demonstrated that the particualr safety issue then raised by the employees was not objectively shown to be an imminent risk to safety or health.
The conclusion was that the employer could not withhold wages from the employees who participated in the industrial action because the applicable enterprise agreement when properly construed meant that the employees had not been absent without leave. The case turned upon whether the employees had reasonable concern about the safety issue and the distinction between the justification for a reasonable suspicion and a reasonable belief.
The Deputy President cited High Court dicta in George v Rockett (1990) 170 CLR 104 in which the Court said that “the facts which can reasonably ground a suspicion may be quite insufficient to ground a belief…” In other words that a belief could be genuinely held upon slender evidence short of proof.
And so it was that the employees were paid. The test according to the Deputy President is the belief at the time when the industrial action is first taken, and if the decision is followed by other members of the Commission it will mean that a mere reasonable concern short of conviction of the existence of the safety issue will be enough.