The collective employee social conscience: be alert, not alarmed

By Jennifer Flinn is a Special Counsel in the Workplace team at MinterEllison, based in Perth.

Industrial relations law in Australia is designed to address our traditional understanding of what constitutes 'employee activism' – the withdrawal of labour, usually organised by trade unions, in response to a disagreement over local pay and employment conditions.

Our current industrial relations laws are not designed to regulate all forms of employee collective action. These days, employees are prepared to organise themselves in more innovative ways, and for broader social causes. There has been a groundswell of employee groups seeking to voice their opinions about business decisions and policies that impact not only the terms of their employment, but also on issues such as freedom of speech, climate change, the treatment of asylum seekers, and the #metoo movement.

Here are some recent experiences from the United States:

• combining shareholdings - employees of Amazon collated shares awarded as part of their compensation package to jointly file a resolution at the company's annual general meeting, asking that the company report publicly on its plans to reduce its use of fossil fuels.
• organising protest rallies - Wayfair workers organised a public rally protesting the company's decision to sell its products to an immigration centre that detained children, prompting international coverage of the event and causing a drop in the value of the company's shares on the same day.
• social media campaigning – 'Googlers' launched a social media offensive that pressured the company into changing its policy requiring complaints of sexual harassment in the workplace to be determined by mandatory private arbitration. The campaign was so successful that other high profile companies such as Airbnb, Facebook and eBay followed suit, as a measure to avoid similar action being taken against them.
• taking joint legal action – class actions have been filed against employers like Ford Motors and McDonalds by groups of former female workers, alleging systemic sexual harassment and discrimination and seeking substantial amounts of compensation.

The United States experience has led local commentators to predict an 'exponential' or 'unprecedented' rise in employee activism in Australia. We have already seen some movement in this direction:

• in the class action space, a number of representative claims have been filed with the Federal Court of Australia on behalf of employee groups, alleging misleading or deceptive conduct in offering employment, underpayment of wages, and sham contracting.
• other cases brought by individual employees have the potential for broader social implications than just the terms of their own employment. Recent incidences of employees challenging their sacking after making comments on social media concerning their views on religion, government policy and climate change, have brought to the fore questions as to whether Australians should have constitutional or legally protected rights to freedom of speech.
• in a novel case, an employee is suing his superannuation fund, alleging that the trustees breached their duties by not providing sufficient information as to what actions were being taken to mitigate the financial risks posed to his superannuation by climate change, and by not having a more developed climate change policy in regards to how its funds would be invested.

The predictions of increased employee activism do not necessarily mean that our industrial relations laws need to be changed. There is a different legal and industrial landscape in Australia compared to the United States that will shape the way employee activism is expressed here, at least in the short to medium term.

Unlike the United States, trade unions in Australia have significant influence over setting the agenda for political and social issues of the day, and rely on their member numbers to bring about change through not only voting with their feet, but also at the ballot box and the bargaining table.

Union campaigns seeking better protection for women from domestic violence, the preservation of historically significant sites and public participation in urban planning, and the recognition of indigenous Australians, have featured alongside other campaigns focussed on traditional workers' rights issues.

It is also more difficult for Australian employees to utilise social media as a tool to organise or participate in campaigns in order to pressure employers to implement changes to business practices. The courts here have consistently upheld the right of employers (with well drafted social media policies) to dismiss employees who use online networking platforms to make comments or voice opinions that could reflect poorly on the business or organisation. Depending upon the circumstances, this can be the case even where the posts are anonymous or made only to a private online group.

Arguments that an employee, as an individual Australian citizen, has a constitutional right to express political opinions have failed. There is also no recognised individual right to freedom of speech in relation to the expression of religious views, but that may change soon if the Religious Discrimination Bill currently before the Federal parliament passes into law.

The message for Australian employers is to be alert to, but not alarmed by, steps taken by groups of employees to voice their opinions on the impact of business decisions or on broader social issues. Depending on the circumstances, signs of collective employee concern or disharmony can open the door for genuine engagement with the workforce.

Like a 'canary in the mine', it can also serve as a warning that a certain policy or business decision is not going to be received well by the market or the public, and if identified and acknowledged early, could avoid damage to the organisation's reputation and/or share price.

Although, the predicted rise in employee activism should be prompting employers to carefully look at their suite of policies: nicely phrased but generalised statements about having a 'commitment' to take into account social issues like climate change, diversity and ethical purchasing, are not going to meet the expectations of the next generation of employees. They will not only expect their employer to have such policies, but will also want to see real evidence of that commitment.

How well the realisation of those commitments are communicated to employees will be a key feature of any effective plan to contend with employer activism into the future.