Commission rejects union appeal against e-mail blocks

A precedent has been set in the Australian Industrial Relations Commission (AIRC) allowing companies to block employee access to union e-mail. The ruling has widespread ramifications in the enterprise concerning how companies manage e-mail. It is also a serious setback for unions seeking access to employees in the workplace.

The ruling is the result of an appeal by Channel Seven management to overturn a previous decision that favoured the Media Entertainment and Arts Alliance (MEAA), and the Commonwealth Public Sector Union (CPSU).

The AIRC decided that reasonable access to communications for unions does not include the automatic right to contact membership in the workplace via e-mail provided by the employer.

On-site union officials at Channel Seven will still be allowed to receive union e-mail, but they must continue to utilize less sophisticated means of communications such as company notice boards to communicate with rank and file.

The decision makes no mention of what rights employees have to access union Web sites, nor does it stipulate what the position an employee initiating e-mail contact with a union is – other than that the union would not legally be able to reply. The question of employee access to Web mail is for union purposes also remains unresolved.

Professor of Industrial Law at the University of Sydney, Ron McCallum, says that because employers largely own the computers, networks and servers that e-mail is conveyed upon, at law, employers are just as entitled to block union e-mail as they are spam.

“There have been a number of these cases. There was a case several years ago involving Ansett Airlines and union access to e-mail. It’s fairly clear that under the law as it stands at the moment – companies own the e-mail. They can give permission for trade unions to send around e-mails,” McCallum said.

Even so, McCallum cautions that attempting to firewall out industrial activists brings with it it’s own issues. “If a custom or practice develops where (union) shop stewards regularly send around material, and it’s not frowned upon by management, then you can’t fire them on that basis.

An employer can block e-mail-providing that it is not interfering with a person’s privacy, or the amendments to the privacy act.

“My own view is that unless people are sending e-mails that are clearly wrong, we ought to allow people access to information. At the moment the law is that the employer owns the e-mail server etc…so provided that the employer does not discriminate against one union or another, the employer can block it, McCallum said.

Ron Callus, director of industrial relations think tank ACIRRT, says while the decision is a setback for unions, the case would probably have never come about had Channel Seven not been attempting to negotiate a non-union agreement with employees at the time.

“You have to wonder if…the only reason they are doing it (to impede communications) to members in the context of being in conflict over a non-union (workplace agreement negotiation). It’s a bit of a silly game really. If the union wins (the right to keep the union negotiated award) it will probably go back to them having access,” says Callus, adding that many workplaces have little problem with unions using e-mail for communications.

“In some other countries there are laws about bargaining in good faith – we don’t have those here…,” Callus says.

Neither the MEAA nor Channel Seven were available for comment.