Miners warn on union ‘bullying’ in workplace

Miners have warned the government against allowing bullying and harassment in the workplace if it is defined as union business, and rejected changes to the Fair Work Act.

Whitehaven’s Werris Creek coalmine in northern NSW Picture Craig Greenhill

Miners have warned the government against allowing bullying and harassment in the workplace if it is defined as union business, and rejected changes to the Fair Work Act that would give a “green light” to misconduct under the guise of industrial activity.

In response to a consultation paper into providing stronger protections for workers against discrimination, mining companies said employers must not have “their hands tied in their duties to keep their workplaces safe and free from bullying, discrimination and victimisation by any workers, including union representatives”.

The Minerals Council of Australia, representing miners including BHP, Rio Tinto, White­haven and Glencore, said while it strongly backed legislative changes supporting greater respect at work, “it is disturbing that the proposal in the consultation paper runs counter to this entire agenda”.

“Exempting those involved in industrial activities from liability for their conduct, but not exempting others, also runs counter to the whole notion of freedom of association, which has underpinned the legislation for three decades,” the MCA submission states.

The Department of Employment and Workplace Relations consultation paper is one of several released ahead of Labor’s second round of IR changes that focus on same-job, same-pay reforms.

The MCA is concerned the government is trying to overturn the High Court’s 2012 ruling in favour of Bendigo TAFE, “which suspended an employee and member of the Australian Education Union after he alleged serious instances of fraud in an email to colleagues who were AEU members but would not report or reveal details to management,” the MCA submission says.

“Any changes to the ‘adverse action’ regime should preserve the existing legal test, as settled by the High Court in Bendigo TAFE v Barclay (2012) … and subsequent High Court cases. This jurisprudence is well settled and understood, and delivers fairness. We do not understand any policy rationale for changes which protect ­seriously offensive conduct or conduct which causes psycho­social damage in the workplace. It would be a perverse outcome if such conduct was protected by the FW Act, but made unlawful by every state and territory workplace health and safety regime.

“It would provide a ‘green light’ for disrespectful workplace behaviour, bullying or victimisation that would be completely contrary to the efforts of business, government and unions to promote respect at work in Australia.”

The consultation paper raises the Bendigo TAFE decision and asks whether there are “improvements that could be made to the general protections to clarify protections for a person engaging, or not engaging, in industrial activity”.

It cites “protection against adverse action because a person is, or is not, an officer or member of an industrial association”, or is ­engaged in industrial activity.

The MCA said “the Barclay test provided critical protection against anti-social or unacceptable behaviour being given legal protection”.