Unlawful industrial action is not
Two Brisbane City Council bus drivers were dismissed after they abandoned their work and participated in unprotected industrial action. They claimed they were treated less favourably that 38 other employees who participated in the industrial action who were given written reprimands and warnings.
The tribunal found that the comparator was a person who did not engage in trade union activity who: put passengers off a City Sights bus service to stop work without lawful reason, was not at work when directed to resume work, and had previously been advised that stopping work for an unlawful reason was unacceptable.
Neither of the bus drivers claimed that participation in unlawful, unprotected industrial action is trade union activity, and the tribunal found that such participation would not be trade union activity within the meaning of the Queensland Anti-Discrimination Act. One of them was a union member and had engaged in issues such as entitlements and disputes over wages and conditions, and the other was a delegate and had engaged in safety issues, advocated for rights, represented members at disciplinary and performance meetings and communicated union news and views. They claimed that this trade union activity was the reason for their dismissals.
The bus drivers did not establish on the evidence that their employment was terminated because of their trade union activity, or that the reasons given in their termination letters were not the real reasons. There was no direct link between their trade union activity and the termination of their employment, and no evidence from which an inference could properly be drawn. The tribunal found that the reasons for termination of employment were the reasons set out in the letters of termination.
Stone & Spelta v Brisbane City Council  QCAT 507 (29 December 2015)
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Employer must know of union membership
The complainant alleged discrimination on the grounds of trade union activity in work. He claimed that he was left off the fortnightly work roster following his election as a union delegate at a time when enterprise bargaining negotiations were taking place.
The matter was not conciliated and was decided at a hearing in the Queensland Civil and Administrative Tribunal.
The tribunal found that there was no evidence that the employer knew the complainant was a union member at the time of drawing up the roster. The sequence of events also indicated that the complainant attended his first union meeting seven days after he learned that his name was not on the roster. The complainant could not prove that the employer had actual knowledge of his trade union membership at the time the roster was released. The causal link was not present.
The tribunal said the purely speculative nature of the complaint suggested the true reason for the complaint related to the union's concerns about the manner in which the workforce had been downsized and related industrial matters.
The complaint was dismissed.
Ward v Stradbroke Ferries Pty Ltd  QCAT 637
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