 |
 |
 |
Breaking News
Big fine for company that sacked union delegate after AWA strike
10th November, 2008
A stationery company that unlawfully sacked its NUW delegate after a bitter strike at the height of pre-election debate over Work Choices has been ordered by the Federal Court to pay $12,000 in penalties and $1800 in compensation.
The NUW won an interim order from Justice Michael Moore in September last year reinstating the delegate, and he made that order permanent late last month after the union succeeded at trial.
The union served a bargaining claim for a 28% increase over three years on Esselte Australia Pty Ltd in March 2006, just ahead of the April nominal expiry date of the NSW-registered Esselte Enterprise Agreement 2005 that applied at the Minto site on the fringe of south-western Sydney.
The company initially negotiated with the union, in a bid to obtain a less prescriptive and more flexible "modern" agreement, "if not an agreement that diluted or diminished existing terms and conditions of employment", Justice Moore said.
Then, in May 2006, the NUW initiated a bargaining period under the federal Act, which led to the employer offering AWAs.
Justice Moore said that the NUW opposed the AWAs and for the remainder of 2006 and early 2007, there were only "desultory" or no negotiations.
On March 22, 2007 the company's Pacific Rim regional controller wrote to employees saying it had become unlikely agreement would be reached with the NUW and that the company would be offering AWAs to all employees, with a $250 sign-on bonus available until March 31. The letter told employees that by choosing to remain on the agreement, "you have been prevented from receiving pay increases".
NUW members voted in favour of industrial action in a secret ballot in May and the industrial action started in June that "escalated into a bitter and protracted dispute that lasted for some months".
On the second day of the picket outside the site, the delegate, who was a storeman and packer, approached a car driven by a co-worker who had been on leave during the lead-up to the dispute, and was unaware of the strike.
The delegate told him not to enter the site, and when the worker asked why, the delegate said: "Go and lick the boss's arse" and made "offensive bodily and facial gestures", which the worker reported to management.
On the same day, an AWA employee sought to cross the picket line and alleged the delegate called him a "fucking cunt". The AWA employee reported the allegation to management.
The company's warehouse distribution manager on June 21 wrote to the delegate about his "serious and wilful misconduct" in each of the incidents and said he had intimidated and mislead employees and blocked access to the site. It warned him that he should behave more responsibly as a delegate, and gave him an opportunity to respond before it made a decision about whether to terminate his employment.
The following day, the company sent a further letter, accusing the delegate of distributing a leaflet, entitled "how well do you know your neighbour?" to houses near the warehouse distribution manager's home in the suburb of Wilton, and asking him to respond.
The worker sent a detailed response to the allegations, in which he denied them, and he then didn't hear anything more from the company until after the dispute ended in September 2007.
Justice Moore said the regional controller had not been entirely truthful in his evidence, and that he had made a "patently untrue" statement when he told employees in a memo that contrary to "misleading media", striking employees were not being asked to sign an AWA, and the company hadn't offered AWAs since the employees rejected them in 2006.
When the delegate returned to work after the dispute ended in September, the company wrote to him asking him to meet with them five days later over the misconduct allegations.
The delegate admitted that he had broadly done what the first employee alleged and offered to apologese to him, but denied the allegations raised by the AWA employee. However the company proceeded to dismiss him for misconduct on September 12 last year.
Justice Moore said that the factors surrounding the dismissal, when viewed collectively, raised real doubts in his mind that the company dismissed the delegate for the stated reason of misconduct. He noted that the reasons noted in the letter terminating his letter "had an air of artificiality about them".
Justice Moore noted the "manifest convenience" for Esselte "of getting rid of the union delegate who had been at the forefront of union resistance" to moving employees onto AWAs without the need for the NUW's involvement.
Justice Moore found that Esselte hadn't displaced the presumption under s809 that it had sacked the employee for the prohibited reason that he was an NUW delegate. He added that even without the presumption, the evidence established the sacking was because he was a delegate.
In determining the penalty, Justice Moore took into account that the "intense industrial campaign" waged by the union at Esselte had affected the judgement and sense of balance of the managers. But that had to be weighed against the context - that the industrial campaign was a response to the company seeking to negotiate a "modern" agreement and propose employment under AWAs.
"While it was lawful for it to do so, those making decisions for [Esselte] could not have assumed that this approach would go unchallenged by the workforce it might affect", he said.
He ordered the company to pay a "mid-range" penalty of $12,000 and to pay $1800 compensation to the delegate for the period between his dismissal and his reinstatement.
Justice Moore refused the NUW's request that it be paid the penalty.
Slater & Gordon IR practice group leader Phil Pasfield, who represented the delegate, told Workplace Express the case "shows the need for employers to be conscious of their obligations under the freedom of association provisions of the Act when considering disciplinary action, particularly where union delegates are involved."
www.workplaceexpress.com.au Tuesday 4th November 2008