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
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
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
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 sacked...you'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:
The fact that the assault upon [the TWU official], although
serious, is not considered to be a premeditated action
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
The medical condition affecting Mr Utley in September
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
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.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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