Victoria backs appeal against key IR ruling on union email

Victoria has indicated it will support a High Court appeal on a ruling supporting union activities during work hours.

The case involved Greg Barclay, a union representative at Bendigo TAFE, who was suspended over an email warning union members not to assist in the preparation of false documents for an internal audit.

According to industrial relations lawyer Peter Vitale, Bendigo TAFE said the motivations for taking disciplinary action were concerns about breaches of its services code, and the email’s content damaging its reputation.

Vitale says the Federal Court ruled it was “effectively impossible to separate the employee’s activity as a union delegate and his activities as an employee.”

“The net result of the Barclay decision is that the fact that email sent by the employee might have actually resulted in damage to the employer and might have been inaccurate and potentially defamatory made no difference, because the court said you can’t separate that from his work.”

Vitale adds that usually courts would expect an employee to perform related to their role as a union delegate in their spare time.

According to the Australian Financial Review, State Workplace Relations Minister Richard Dalla-Riva said the decision had “significant implications for all employees and employers” and could “unfairly apply to innocent employees or employers in a wide range of circumstances – not just those that might involve union activities.”

“We also note that concerns of the business community that the full Federal Court decision impacts on an employer’s right to require reasonable standards of behaviour at work and to take fair disciplinary action against employees who engage in misconduct, regardless of whether they also perform union activities,” Dalla-Riva is quoted saying.