6 March, 2018
There is no question that social media is a powerful tool. What is now becoming increasingly clear is that it can be a tool in enterprise bargaining, with unions now frequently using social media to garner support for their position, and to cheaply and easily reach a wider audience. Similarly, social media also presents an opportunity for employers, particularly in the mining and resources industries, to directly engage with their workforce.
However, the use of social media in enterprise bargaining remains subject to legal parameters, including the Fair Work Act 2009 (Cth).
The use of social media in an enterprise bargaining disputation was most visible, and highly publicised, in the AMWU’s #streetsfreesummer campaign. After Streets made an application to the Fair Work Commission to terminate its enterprise agreement, the AMWU launched a national boycott of Streets’ products. The union’s social media campaign included emails, Facebook announcements and Twitter posts. It gained significant traction, reaching a national audience.
The use of social media, as well as its reach and potential effectiveness, were also evident in the dispute at the Webb Dock terminal in late 2017. There, a picket line continued despite the Victorian Supreme Court ordering that it come to an end. The continued presence of the picket was, at least in part, attributable to a large social media campaign providing information in relation to the protest.
There are, however, limitations imposed by the FW Act which bargaining parties need to be aware of.
The FW Act prohibits a person from knowingly or recklessly making false or misleading representations about workplace rights, or exercise of those rights, by another person.
Further, the FWC has found that misleading information disseminated during bargaining is capable of being the subject of bargaining orders. In 2016, the FWC found that “bargaining updates”, published by the NTEU on its website and on Facebook, were misleading and undermined collective bargaining.
More recently, Murdoch University commenced proceedings in the Federal Court alleging that, among other things, NTEU social media posts and campaign materials amounted to coercive conduct in contravention of the FW Act.
While these recent examples highlight the increasing use of social media in bargaining campaigns, they also confirm that there are legal parameters concerning the dissemination of material on social media. Employers should:
- review campaign materials produced by unions and bargaining representatives to ensure it is accurate and consistent with good faith bargaining obligations
- be prepared to respond to union social media campaigns
- consider innovative options for utilising social media to communicate with workers and other stakeholders; and
- always ensure information they disseminate via social media is factually correct and not misleading.
For further information, please contact:
James Hall, Partner, Ashurst
james.hall@ashurst.com
