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Workplace law special edition: Fair Work Act: Freedom to associate

Workplace law special edition: Fair Work Act: Freedom to associate

By Malcolm Harding

Workplace 

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The second form of 'industrial association' recognised by the Fair Work Act 2009 and some of the interesting ways it is deployed by the Act are addressed here. A recent Full Court Decision considered the concept.

Snapshot
  • The article examines the concept of “industrial association” in the FW Act from the perspective of the human right to associate.
  • It posits a practical way of applying the informal form of association recognised by the statutory conception of “industrial association” in the context of the protections conferred by the FW Act for engaging (or not engaging) in “industrial activity”.
  • Recent Federal Court decisions have examined some of the forms of “industrial activity” referred to in s347(b) of the FW Act.

Open the Fair Work Act 2009 (FW Act) and you will find that it refers to something called an “industrial association”. Despite the singularity of the phrase, the statutory conception of this type of body is broad, flexible and multifarious. It is one way in which the FW Act gives effect to the link it makes, through its objects, between freedom of association and fairness, representation at work and the prevention of discrimination.

Freedom of association is a familiar idea in human rights discourse. It is not unique to employment. Human beings associate for all sorts of reasons. As Bromberg J recognised in Australian Building Construction Commissioner v Construction, Forestry, Mining and Energy Union (Bay Street Case), the freedom to do so is a fundamental human right in a free society.2 It entails, Bromberg J said, not only a right of individuals to form groups but also for those individuals to be represented by, and to participate in, the activities of those groups.3 For Australian industrial law practitioners it is common to think of that freedom in formal, binary terms – on one side, employees and their unions and on the other, employers and their registered organisations. The statutory idea of an “industrial association” does not, however, confine itself in this way. Rather, it embraces more fully the human right described by Bromberg J. 

The statutory recognition of informal associations

Section 12 of the FW Act defines “industrial association” in three ways – two are relevant: 

  1. an association of employees or independent contractors, or both, or an association of employers, that is registered or recognised as such an association (however described) under a workplace law
  2. an association of employees, or independent contractors, or both (whether formed formally or informally), a purpose of which is the protection and promotion of their interests in matters concerning their employment, or their interests as independent contractors (as the case may be).

The second form, paragraph (b), is, in two quite important ways, different from the first: it does not need to be registered or recognised under a workplace law and may be informal.4 This is apparent from the parenthesised words “(formed formally and informally)”. While “formed formally” overlaps with paragraph (a), “formed informally” was a genuine reform. The Explanatory Memorandum specifically draws attention to the informality aspect and the low threshold for establishing an association’s industrial purpose as distinguishing features of the FW Act definition, which it illustrates with the example of “Andrea”:

“Andrea works at the Bouncy Bluebell Childcare Centre. The manager, Bernadette, has been asking childcare workers to put away heavy equipment at the end of each day while also watching the children. This requires the staff to leave the children without supervision. Andrea is concerned that this breaches the relevant government regulations. She suggests to a number of her co-workers that they meet after work to talk about whether they should take a collective approach on this issue, including reporting the issue or contacting the union. If the other employees agree to the meeting, they will be an industrial association within the meaning of [the definition]”.

Andrea’s association is spontaneous and unstructured. Those she invites to meet are co-workers who may, and probably do, already associate with each other at and for work (and perhaps also for social purposes). This pre-existing association may occur within an organisational structure arranged by her employer according to its interests. Still, Andrea’s meeting offers a further, employee interest based, purpose that engages the meaning referred to in paragraph (b). 

Nothing about Andrea’s proposed meeting implies any particular structure or longevity. The membership of those who meet may be fluid and inchoate, their combination transitory: existing for a time and then ceasing, its purpose spent. On the other hand, Andrea’s meeting may evolve into a group who together progress her original objectives or develop quite different ones. These qualities illustrate the lack of statutory presumption as to the form or government of informal associations. They need only be formed and have, as one of their purposes, the protection and promotion of the interests of its members as employees or independent contractors. The contrast with the paragraph (a) form of association is stark. 

The fuller embrace by the FW Act of the freedom to associate has resulted in the FW Act conferring broad protection on those who join industrial associations and participate in their lawful activities. It also confers on informal, as well as formal, associations the ability to enforce those protections. 

Standing and informal associations

The FW Act arms courts with broad powers to remedy and penalise contraventions of the FW Act. Contraventions are organised around prohibitions labelled “civil remedy provisions,” which are enforceable at the suit of named persons and organisations with interests and functions relevant to the subject matter of a particular civil remedy provision. So, for example, the employer and employees to whom an enterprise agreement applies can sue for a contravention of it. But so too can an “employee organisation” (which has a particular meaning that denotes an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009)) to whom the agreement applies or a fair work inspector (which is the Fair Work Ombudsman or a person he or she appoints as an inspector). However, when it comes to the FW Act’s “general protections” from, among other things, adverse action, coercion and misrepresentation, an “industrial association” has standing to sue.5 This reflects the centrality of representational choice of the freedom to associate, which is given statutory effect by a standing rule that, by s540(6), authorises an industrial association to sue in its own right or for a person it is “entitled to represent the industrial interests of” if either are “affected by the alleged contravention” of a general protection. Interesting questions arise when this idea is pressed into service as a tool of enforcement. For example, how is an informal association “affected” by a contravention? It is pure abstraction, with no existence that is independent of the flesh and blood humans who associate. Likewise, how is the informal association’s entitlement to represent the industrial interests of those for whom it sues to be discerned where it lacks a structured means to express collective interests? 

The High Court touched on the last of these two questions in Regional Express Holdings Ltd v Australian Federation of Air Pilots (Regional Express). The Court drew on historical ideas rooted in Australian industrial jurisprudence about the role of unions in industrial disputes at a time when a dispute had to exist before an award could be made that settled it. The Court concluded that the “entitlement” referred to in s540(6) derived from a collective conception of industrial associations as guardians of the interests of a class or of industrial groups.6 Viewed in this way, the industrial association is not merely an agent of those individuals who are affected by breaches of industrial laws, but has an independent interest as the embodiment of an identifiable class of interests of which the individual is but an emanation. 

There is nothing necessarily radical about this. Australian industrial jurisprudence has long viewed formal, registered bodies corporate as the vehicle through which to enforce industrial laws as common informers. However, a feature of the body corporate form of association is its ability to aggregate and hold together a potentially ever-changing pool of employee members under rules that express the requisite entitlement. An informal association, by contrast, is unlikely to possess these characteristics. However, the Court in Regional Express expressly declined to limit s540(6) to registered associations. Instead, it embraced the possibility that an unregistered industrial association could also satisfy the “entitlement” requirement if it had a “real interest in ensuring compliance with a civil remedy provision for a particular class of person”.

Of course, this is all very well in theory. In theory, conferring litigation rights on a group of individuals offers the opportunity to spread the costs and risks of litigation and advance the interests each have in common. However, so far this doesn’t seem to have offered much encouragement. The very flexibility of the “industrial association” idea is reason enough though to jettison pre-conceptions about how collective interests can and should be advanced. One, practical, way in which this may be done is by viewing informal and formal associations as workplace companions. The effect of doing so may also serve to expand the protection from adverse action for engaging in “industrial activity” of the kinds recognised by ss347(a) and (b) of the FW Act. 

A role for informal associations as workplace companions 

There is no statutory reason why, say, an employee cannot be a union member and also associate with a group of other employees in an informal association. 

A union activist who organises a group of co-workers to meet after work or during their lunch break to discuss how they may resist or change the employer’s policy on discipline forms an industrial association and is a member of it and his union. If the employer then denies the activist overtime and adverse action litigation ensues, the employer may be called on to negate the activist’s establishment of the informal association of co-workers as a reason for denying him or her overtime. In this situation, both the union and the group of employees constituting the informal industrial association have standing to enforce the protection conferred by s347(b)(i) of the FW Act (a protection that applies to a person who establishes an industrial association). Two other interesting hypothetical examples illustrate other protected forms of industrial activity. 

The first concerns an employer who disciplines a worker, who also happens to be a union delegate, for acceding to a request from co-workers to arrange a meeting in their own time to discuss bargaining. Here, the source of the request is not the delegate’s union, but another informal industrial association of co-workers who seek to associate with the delegate. If the employer’s reasons for the disciplinary action include the union delegate’s compliance with the other association’s request, the employer will infringe the protection conferred by s347(b)(iv). So too will the employer who takes adverse action against an employee who is an individual bargaining representative for a new enterprise agreement if its reasons include her promotion and advancement of the bargaining views and claims of a union that is bargaining for other employees. The individual employee is protected from reprisal by s347(b)(v). The bargaining representative’s activity is her choice to associate herself with the union (a formal industrial association) by promoting its views and claims. The individual need not be a member of, or eligible to join, the union. 

Recent judicial consideration 

The example of the union delegate who is disciplined bears some resemblance to the hypothetical union shop steward suggested by Jessup J in Australian Building and Construction Commissioner v Australian Manufacturing Workers Union (the Australian Paper Case)8 who convenes a meeting of other employees during their lunch break at the request of another industrial association, and is dismissed. This hypothetical was used by Jessup J to illustrate the breadth of the protection afforded by s347(b)(iv) of the FW Act, which protects compliance “with a lawful request made by, or requirement of, an industrial association”. Jessup J construed the text of this provision literally, with the result that any person who complied (or on the facts of the case, refused to comply) with a lawful request or requirement made by an industrial association engaged in industrial activity and was accordingly protected, on pain of civil penalty. Bromberg J thought this de-coupled the protection from the freedom to associate and expanded things too far.9 For reasons of context and consequence, his Honour would have required that the lawful request or requirement be one that asked or required the person to whom it was addressed to associate in, or with, the association, accepting, in common with Jessup J, that it was not limited to the participation of members in the affairs of an association.10 

Bromberg J’s approach has prevailed.11 In the appeal from his Honour's decision, the Chief Justice concluded that construing s347(b)(iv) literally resulted in protected “industrial activity” extending to activity with no connection to industrial affairs or activity of any kind, or the subject of the Act.12 Considerations of context required that this protected activity be confined to compliance with a request or requirement to participate in the lawful activities of, or concerning, an industrial association. Allsop CJ accepted that his formulation differed from Bromberg J’s but did not perceive those differences as substantial.13 Flick J, the other majority judge in the appeal, viewed the concept in a similar way to Bromberg J.14 

Conclusions

It is notable that the protection the FW Act confers for engaging (or refusing to engage) in broad categories of industrial activity follows from the FW Act’s conception of it in general, activity-based terms. Indeed, this is something that provoked Bromberg J to observe that the activity based criteria contained in s347(b) reflected a change that recognised that the Act had embraced informal collectives of individuals.15 

The Full Court’s re-affirmation of the relationship between these activity based protections and the freedom of association does nothing to diminish this recognition. But statutory recognition has not resulted in much development either. This may reflect the real politic of industrial relations. Certainly, what development there has been has occurred in proceedings against registered unions by regulators. It may also reflect a failure to appreciate the full extent to which the FW Act has embraced the freedom (including for independent contractors and combinations of employees and contractors) and to make the connection between this and the inherent flexibility of informal associations, which, at least in employment, often reflects how organising is actually done. 

It is useful to reflect on these things more than a decade after the FW Act became law. ■


Malcolm Harding SC is a barrister at the Victorian Bar. He has been at the Bar since 2003 and was appointed Senior Counsel in 2019.

  1. FW Act, s3(e).
  2. (2018) 260 FCR 564, [2018] FCA 83, at [48], citing Toohey J in Kruger v the Commonwealth [1997] 190 CLR 1 at 91. See also Construction, Forestry, Maritime, Mining and Energy Union v Building and Construction Commissioner (the Bay Street Appeal) [2020] 300 IR 383, [2020] FCAFC 192, at [15] (Allsop CJ).
  3. Note 2 above, at [63]. The freedom is recognised directly in s16(2) of the Victorian Charter of Human Rights and Responsibilities Act 2006, including, but limited to, the right to form trade unions.
  4. In passing it is worth noting that both paragraphs (a) and (b) of the definition refer to associations of employees and of independent contractors as if they are functionally equivalent. But see Construction, Forestry, Mining and Energy Union v McCorkell Constructions [2013] 232 IR 290, [2013] FCA 446 at [81]-[131] (Bromberg J).
  5. Standing is also conferred on industrial associations for contraventions of the statutory prohibitions on termination of employment for reasons prohibited by the FW Act and contraventions of an order made by the Fair Work Commission requiring an individual or group of individuals to stop bullying a worker. However, the Explanatory Memorandum to the Fair Work Bill states that the definition of industrial association is mainly relevant to the Act’s general protections.
  6. [2017] 262 CLR 456, [2017] HCA 55, at [32], referring to the principle in R v Dunlop Rubber Australia Ltd; ex parte Federated Miscellaneous Workers’ Union of Australia [1956] 97 CLR 71 at 81.
  7. Note 6 above, at [50]. This “real interest” may simply re-express the need for a protection and promotion purpose, albeit in a way that views this purpose objectively and as an emanation of collective work interests.
  8. [2017] FCA 167, at [188].
  9. Which his Honour viewed as the purpose of the provisions: see Bay Street Case, at [53].
  10. Note 9 above, at [65]-[66]. Nonetheless, for reasons of comity his Honour applied Jessup J’s construction: Bay Street Case at [85].
  11. The Bay Street Appeal at [29] (Allsop CJ); at [59] (Flick J); (White J dissented, he would have upheld Jessup J’s construction, see at [193]. In doing so, his Honour recited at [170]-[171] a list of single judge decisions that had followed Jessup J’s construction).
  12. Note 11 above, at [37] (Allsop CJ).
  13. Note 11 above, at [28].
  14. Note 11 above, at [71].
  15. Bay Street Case at [63]. In Esso v AWU [2015] 253 IR 304, [2015] FCA 758, at [198]-[199], Jessup J characterised ss346 and 347 as instruments of real law reform that had expanded the scope and generality of the protections.

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