Court confirms workers' right to protest

A significant ruling in the Federal Court on November 28 upheld the right of workers to use their leave as they see fit. The ruling prevents public sector organisations from issuing blanket bans on when employees can, or cannot, take leave.

The Community and Public Sector Union (CPSU) ran the test case against the Office of the Employment Advocate (OEA), the government agency that administers the anti-worker laws and advises employers on workplace agreements, after it refused to grant one of its workers, Gregory McCarron, flex leave to take part in the November 30 day of protest citing "operational reasons".

The court overturned an earlier adverse decision which ruled that McCarron had not been singled out because of his union membership because, as Justice Dennis Cowdroy put it, "the directive related to all employees of the OEA and was not directed solely to the members of the CPSU".

Claire Howell, barrister for McCarron and the CPSU, argued that the OEA management directive was "exceptional" because "it permitted no leave to be granted when ordinarily operational requirements permitted a percentage of employees to be absent on any given day."

The new ruling reinforces the fact that employers cannot dictate what workers can, or cannot, do in their time off, or how workers use their leave entitlements. CPSU national secretary Stephen Jones said it "confirms every Australian worker's right to democratically participate in the affairs of their union, exercise their freedom of speech and attend a protest demonstration".

The OEA had sent staff a memo stating that on November 30, the ACTU-called national day of action, the office must be able to "provide the full range of services to its clients", and that this was why leave, including flex leave, would not be approved.

McCarron had requested clarification saying, "I fail to see the difference between using my flexible working conditions to go shopping for a couple of hours ... or going to listen to some speakers for a couple of hours". He did not receive a response.

McCarron claimed he was discriminated against because he was a union member, and that the normal process for assessing leave applications — as set out in his AWA — had not been followed.

From GLW issue 693