Federal Court determines penalties after ruling employer took adverse action against union

Federal Court determines penalties after ruling employer took adverse action against union

Federal Court determines penalties after ruling employer took adverse action against union

The Federal Circuit and Family Court of Australia have determined the appropriate penalties to be imposed after previously ruling that a company took adverse action against two employees by selecting them for redundancy, partly due to their activities as union delegates. The Court also ruled that the company breached the prevailing enterprise agreement by failing to pay redundancy entitlements and comply with provisions governing Rostered Days Off (RDOs).

The two employees, ‘David N’ and ‘Darren B’ were employed in the construction division of United Lift Services Pty Ltd (“United”), a lift company that provides lift and escalator installation and repair services. On 18 June 2021, David N was elected as the initial site delegate for the CEPU, and Darren B was elected to represent the AMWU.

Following a period of enterprise bargaining negotiations, United advised employees in writing that they were seeking to make two positions redundant and sent out an expression of interest in relation to voluntary redundancy.

Before the expiry of the nomination period, both David N and Darren B were advised that United’s NSW Manager had made the decision to terminate them. Justice Douglas Humphreys largely accepted the submission on behalf of the two employees that their redundancy was linked to previous workplace complaints they had made, including the progress of enterprise bargaining, unlicensed employees doing electrical work, management of COVID-19, unsupervised apprentices, as well as incorrect pay classifications.

Justice Humphrey ruled that the company had breached the employees’ workplace rights.

With regard to David N, Justice Humphreys determined it was likely he would have remained in employment with United for a period of not less than 12 months. After discounting monies paid to him as part of his redundancy, he assessed the economic loss, including relocation costs to gain employment alternate employment, at $52,057.69.

Justice Humphreys also accepted evidence that David N’s termination caused him to seek medical advice to cope with anxiety and stress and awarded him $15,000 for non-economic loss.

With regard to Darren B, Justice Humphreys determined it was likely he would have remained in employment with United for a period of six months. After discounting monies paid to him as part of his redundancy, he assessed the economic loss at $13,993.55.

Justice Humphreys also awarded Darren B a sum of $10,000 for non-economic loss.

For the various breaches of the Fair Work Act 2009 committed by United, Justice Humphreys imposed fines totalling $120,000.

The amount reflected the seriousness of the breaches, the lack of remorse shown by the employer, and the extent to which United fought against its liabilities in the court proceedings.

Australian Manufacturing Workers’ Union v United Lift Services Pty Ltd (No 2) [2023] FedCFamC2G 614 (14 July 2023)

For queries about redundancies, employee rankings and assessment, enterprise bargaining, adverse action, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

Ref: 350.0723

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