Union Busting

In Australia, employees have the legal right to join labour unions and participate in union activities. They also have the legal right to choose not to do so. Historically, employers have often viewed unions as problematic and taken a range of steps to try to weaken trade unions or disrupt their membership growth in the workplace. These tactics are referred to as ‘union busting’, activities that at times have been both violent and insidious. This article looks at the current laws around union busting activities in Australia, through the lens of several recent cases.

Significance of unions

Since federation, Australian workers have been entitled to rights and conditions enjoyed nowhere else in the world. It was the power of unions, and the collective power of workers united in a common purpose, that enabled Australia to become known internationally as the ‘workingman’s paradise’. Rights that workers today take for granted – such as a weekend off, compensation for injured workers, a social security system, and decent pay rises – were all originally won through the actions of unionists.

Perhaps understandably, the success of unions in winning better pay and conditions for workers did not always endear them to business owners. In some Australian industries, the adversarial relationship between unions and bosses has been in existence for centuries and shows no signs of disappearing even in the modern world. However, today there is a more symbiotic relationship between unions and business owners, and a recognition that rewarding and incentivising workers can ultimately improve business profitability.

The strong positives that unions have delivered in Australia are, however, only part of the history of these organisations. Unions have also acted as gatekeepers in some industries, sometimes using intimidation to force all workers to join the union, or forcing non-union workers off work sites. In modern-day Australia, this sort of strong-arm union action is regarded as fundamentally unacceptable. Unions are a protected aspect of the Australian employment landscape, but there is also recognition that a worker should not be forced to participate in a union against their will.

Freedom of association

The Fair Work Act 2009 provides workers in Australia with freedom of association, protecting the rights of employees to join (or not join) a union. It is prohibited for an employer to pressure an employee, or a business to pressure an independent contractor over union membership, taking part in industrial activity, or choosing to be represented by a union. Employers who try to interfere with their workers’ right to join a union or participate in industrial action are vulnerable to serious legal consequences.

Some employers try to undermine the relationship between workers and unions, for example, creating a stressful work environment and blaming it on unionisation. Other employers hold anti-union meetings and interrogate their workers about their union membership. Notably, there have even been recent examples where employees were threatened with demotion, lost promotional opportunities and limited shifts if they do not resign their position in the union.

Case study 1

A McDonald’s franchisee in Murray Bridge, South Australia, admitted to union busting by unlawfully discouraging their workers from joining their union. The labour union Shop Distributive and Allied Employees’ Association (SDA) brought a case against the employer for dissuading employees against joining the union and directing managers to persuade workers not to join. In breaches of their workplace rights, the employer provided workers with a template to resign from the union and managers informed workers that they would not be promoted if they were SDA members. One worker was threatened with demotion if they did not resign from the union, while another was repeatedly encouraged to cancel her membership.

The franchisee paid a significant penalty of $275,000 and admitted to wrongdoing.

Case study 2

Even unions themselves can be complicit in busting other union organisations. Such a situation was revealed by a case before the Federal Circuit and Family Court of Australia in Retail and Fast Food Workers Union Incorporated v Woolworths Group Limited [2022].

This case centred around adverse action taken by Woolworths senior management towards a RAFFWU union delegate who had raised a serious car park safety issue. The litigation uncovered the fact that the company kept a secret ‘RAFFWU Tracker’ to record issues raised by this particular union and its delegates. The case also revealed that the store manager had contacted a rival union, the SDA, for help suppressing complaints about the safety issue raised by the RAFFWU. SDA officials threatened workers who supported the campaign with losing their jobs unless they apologised to the store manager.

The court’s findings balanced the seriousness of the contravention against the respondent’s lack of prior contraventions, expressed contrition and commitment to avoid similar situations in the future. Woolworths agreed to give the delegate a written apology and $3,000 compensation. The company promised to recognise their workers’ freedom of association, the standing of RAFFWU as a workers’ union and their right to represent their members. Additionally, the Woolworths Group has issued guidance memos to its HR, People Services staff and Store Managers.

The employment law team at Go To Court Lawyers can provide advice about the consequences of union busting and how to address the issue in the workplace. Please communicate with our team today on 1300 636 846 for advice on any legal matter.