Australia: Client update: Significant fine in adverse action case

Case: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Limited (No. 4) [2013] FCA 930 (13 September 2013)

The Federal Court recently imposed significant fines on Visy Packaging, in a decision which highlights the significance of protections for employees against adverse action under the Fair Work Act.

In an earlier decision, the Federal Court found that Visy and its operation manager contravened the workplace rights and protections in section 340 of the Fair Work Act when a safety representative was subjected to an investigation as a result of tagging out two defective forklifts and raising safety issues when the forklifts were being returned the service. The safety representative was also suspended on full pay and issued with a final written warning.

The Court imposed fines close to the maximum in order to ensure businesses understood the significance of these protections. In particular, the Court noted the rights that safety representatives held and the importance that they be protected from adverse action when exercising those rights. The Court said:

"In my view, the most important single factor in the present case is to fix a penalty which (while not oppressive) sends a message that deters others from the type of conduct seen in this case. I see this as indicating a penalty at the upper end of the scale."

The parties also requested that the Court impose an order that the penalty be paid to the Union. The Court considered this appropriate in the circumstances where the Union brought the proceedings in order to protect the position of the safety representative and other members of the Union.

The case demonstrates the effectiveness of the adverse action laws and the need for employers to exercise care when responding to work health & safety issues raised by its employees.

For further information about adverse action Holding Redlich has compiled an Adverse Action Update, a comprehensive 30 page publication that gives you all the information you need to know about the latest developments relating to adverse action. If you would like to receive a copy of this indispensable publication, click here.

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