Most Read Contributor in Australia, September 2016
Case: Automotive, Food, Metals, Engineering, Printing and
Kindred Industries Union v Visy Packaging Pty Limited (No. 4)
 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
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
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
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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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