Australia: Employer fined for punching union member

Last Updated: 13 November 2011
Article by Vanessa Marano


The Federal Court of Australia recently heard a case brought by the Transport Workers' Union (TWU) against the former Director / Manager of a trucking company known as No Fuss Liquid Waste Pty Ltd (No Fuss Liquid).

The TWU brought actions against the former Director / Manager of No Fuss Liquid for breach of the General Protections provisions of the Fair Work Act (the Act), which specifically protect employees from adverse action taken by their employer on the basis of having or asserting and exercising a workplace right and being or not being involved with an industrial association (e.g. a union).

The Facts

Mr Utley was the Director / Manager of No Fuss Liquid, a business which removed, carted and disposed of liquid waste. The business had about eight staff members who were employed in varying capacities.

Mr Utley's employees took issue with the calculation of their correct entitlements, particularly penalty rates. In particular, employees were being asked to take 'sick leave' on days where there was not enough work for them to do. One employee also alleged that a period of sick leave had been deducted from his annual leave.

Employees also raised their concerns with respect to vehicle maintenance and their safety to drive, as well as being threatened by demotions from permanent positions to casual positions.

On one particular occasion, an employee sought the assistance of the TWU in relation to a threat of demotion after a customer had complained about the employee's unsafe operation of a truck. Mr Utley met with the TWU official at which time he stated 'we have no union here.'

A few weeks later, the TWU official convened a meeting of employees outside the company's Emu Plains site. One employee who was attending the meeting contacted Mr Utley to inform him that 'the union said the trucks can't leave the yard just yet.'

Mr Utley arrived at the site shortly after being contacted by his employee. Upon his arrival he pointed in the direction of his employees and said 'You're're all f**king fired. I'm closing the f**king business. You can't get nothing out of it.' Mr Utley then proceeded to punch the TWU official in the face with both hands.

Mr Utley suffered a nervous breakdown after the incident and was taken for treatment to hospital. He was subsequently diagnosed with a psychological illness.


The TWU sought penalties against both Mr Utley and No Fuss Liquid. The Act permits the Federal Court and / or the Federal Magistrates Court to order penalties be paid by a person and / or company who has acted in contravention of the Act. The TWU in addition to seeking penalties generally, sought that 75% of the maximum financial penalties be awarded for each breach.

In delivering his judgment, Justice Flick found that the penalties sought by the TWU were too severe and accordingly, he rejected their submissions that each penalty should be assessed at 75% of the maximum for each breach.

Justice Flick said :

'[some of] those factors which in the circumstances of the present case warrant the penalties being less than those sought by [the TWU] are the following:
  1. The fact that the assault upon [the TWU official], although serious, is not considered to be a premeditated action
  2. The admissions of No Fuss Liquid and Mr Utley as to contraventions of the Act. [Mr Utley admitted that his actions and the actions of the company constituted taking adverse action against his employees for exercising a workplace right, i.e seeking union assistance and for being a member of an industrial association, i.e a union member
  3. The medical condition affecting Mr Utley in September 2010.'

In determining a penalty he stated:

'While the penalty needed to act as a deterrent and to take into account the fact that workers had not been paid out, mitigating factors included a lack of clear proof that the company owner had expressed his opposition to union activity, the co-operation of the former owner and his medical condition.'

Accordingly, the orders were:

  • No Fuss Liquid and Mr Utley pay to the TWU the amount of $12,250 (in total being comprised of penalties imposed on both the company and Mr Utley separately)
  • No Fuss Liquid and Mr Utley pay and are jointly and severally liable to pay to three employees the amount of $8,333 and $5,001 to a fourth employee as 'compensation for loss' as a result of the adverse action taken against them.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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