The most effective protection for delegates against victimisation or harassment by their employer is a strong and active union presence in the workplace.
However, there are also legal protections enshrined in legislation.
NSW public sector agencies
Under section 210 of the NSW Industrial Relations Act 1996, it is unlawful for an employer to victimise an employee because they:
- are a member or official of a union (under industrial law, a delegate is deemed to be an official of the union, i.e. they are an elected representative)
- claim a benefit to which they are entitled under an act, award or agreement
- lodge a complaint about a breach of an award
- appear in proceedings regarding an industrial matter (the Industrial Relations Commission)
- engage in a public or political activity (unless it interferes with their work).
The Crown Employees (Public Service Conditions of Employment) Award 2009 also includes the provisions of the Industrial Relations Act and reiterates the rights of union members to take lawful industrial action and not be victimised.
Universities, TAFE, State Owned Corporations or any other federal system employer
Sections 342, 346 and 347 of the Fair Work Act 2009 combine to provide protection for delegates from any ‘adverse action’ by their employer.
This includes delegates representing or advancing the views of the union or encouraging other employees to participate in lawful activities organised by the union.
Prohibited action by the employer includes:
- dismissal of the employee
- altering a position to the employee’s detriment
- discriminating against the employee
- any action that ‘injures’ the employee in their employment.
Protections are also available to all members under Sections 104–109 of the Work Health and Safety Act (2011).
These measures prevent an employer from discriminating against a worker in response to them exercising any function, power or responsibility under the Act.
Fines of up to $500,000 can apply in relation to such conduct.
Harassment or threats
Any delegate being harassed or threatened in relation to their duties should contact the PSA immediately.
If the matter cannot be resolved through negotiation with management, it will be taken to the NSW Industrial Relations Commission or Fair Work Commission.