Workers were negotiating a new enterprise agreement before dismissal
The Federal Circuit and Family Court of Australia (FCFCOA) denied the application for reinstatement of a union on behalf of its two members who alleged their dismissal violated their workplace rights because it was based on union-related activities.
The controversy happened in the process of negotiating a new enterprise agreement. And while the FCFCOA said that the two workers were entitled “to advocate in the workplace,” it sided with their employer.
‘Adverse action’?
An industrial association filed the application on behalf of two members employed by an organisation that provides water and sewerage services in South Australia.
The union alleged that “adverse action” was taken against the members because they had encouraged colleagues to participate in protected actions during the negotiations relating to enterprise bargaining, and participated in various authorised shutdowns.
According to records, before their dismissal, the employer had investigated them for allegations of malicious activity in the workplace and alleged ethical violations. They were accused of “tampering” with certain parts of the employer’s equipment which “created a health and safety risk.”
‘Irretrievable breakdown’
The employer argued that the members were dismissed because they “consciously acted in a manner which was contrary to its interests, and when caught out, lied about what had happened.” The employer also denied that the union activities “had anything to do with its decision to dismiss them.”
The court noted that the evidence of the employer as to why the workers’ employment was terminated “appears intact and untainted by any association with a protected purpose.”
Pending trial, the union had applied for their reinstatement before the FCFCOA, saying that “it will be emotionally devastating for each of them to be deprived of the sense of meaning work provides for an individual,” aside from the financial impacts.
The employer said that there had been an “irretrievable breakdown in the employment relationship” between it and the members and denied reinstatement.
In its decision, the FCFCOA denied the union’s application to reinstate the members, saying that its argument is “weak” against the employer’s claim that they acted against its interests.
“The return to work of the two men would have significant practical and logistical implications for [the employer]. If its case is established, both men have acted clandestinely and maliciously against its interests, as both a corporate entity, and statutory organisation,” it said.
“It is axiomatically not in the public interest that its facilities and plant be subject to malicious damage. As such, it is entitled to act expeditiously, when it perceives its interests and those of the community which it serves, have been actively harmed, or compromised.”
