Court backs company over adverse action claim

The Federal Court has ruled in favour of a company which faced an adverse action claim after giving gift vouchers to non-striking employees.

A company which decided to give workers who did not support strike action gift vouchers has been cleared of a claim that it took adverse action against workers who took part in the industrial action.

Corinthian Industries and its subsidiary, Baltic Doors, experienced protected industrial action by workers who were members of the Construction, Forestry, Mining and Energy Union (CFMEU) in September, 2011, at five of its sites around Australia during bargaining for a new enterprise agreement.

Strikers and a picket line made operations difficult at two of the sites, Employment Law Matters reported.

Workers who were not part of the action had to cross the picket line to go to work and were at risk of verbal abuse or intimidation.

Those who continued to work also had to often work longer hours or pick up the duties of their striking colleagues.

In November, 2011, bargaining finished and an agreement was reached. In early 2012, the executive managers of the companies decided to give the non-striking employees $300 Woolworths cards as a sign of gratitude for having kept the business running during a difficult time.

General managers at two sites decided not to give out the gift cards because they felt the conditions at their sites during the industrial action didn’t warrant the measure, but three other sites handed out the vouchers.

The CFMEU brought a claim against the companies, saying they had taken adverse action against striking employees by not giving them gift cards and had discriminated between them and the workers who didn’t strike.

The union also claimed that the reason for the adverse action against its members was because they were exercising their workplace right to strike.

But Justice Pagone found that the companies had not failed to give gift cards to strikers because they exercised their right to strike and that they had not suffered adverse action.

He found that the companies had decided to reward the workers who had helped them during difficult circumstances and had gone over and above their normal duties.

He held that a consequence of that decision was that the strikers didn’t receive gift cards, but it was not accurate to characterise the decision in reverse and see it as a decision not to give gift cards to those who took industrial action. 

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