The AMWU has won a major victory for workers’ health and safety in a case where packaging giant Visy was condemned by a Federal Court judge for persecuting an AMWU delegate for honestly doing his duty as an OH&S representative.
Visy threatened Jon Zwart with dismissal after he put OHS “tag” notices on two unsafe forklifts at its Coburg can factory in 2011 because their beepers were not loud enough, consistent with the company’s own “zero tolerance” safety campaign.
The court agreed with the AMWU position that the company’s attitude to Mr Zwart was totally unjustified.
Justice Bernard Murphy found the result of an “independent” inquiry the company instigated into the worker’s conduct was neither impartial or truly independent of Visy mangement.
Justice Murphy criticised evidence by Visy’s plant operations manager Robin Street as “unreliable,” finding he should have never suspended Jon Zwart from work, investigated his actions or later issued him with a final warning notice.
The judge found Mr Street’s “prevarication and the contortion his evidence involved, has led me to conclude he was not frank with the court.”
Mr Street had suspended Mr Zwart and ordered the “independent” investigation because he claimed the AMWU member was “uncooperative” by insisting safety regulations be followed.
When Mr Zwart rejected a company proposal that forklift drivers honk their horn and turn their head when reversing as unsafe, Mr Street accused him of trying to disrupt production. Mr Zwart’s stance was later endorsed by two outside safety experts.
Disruption to work turned out be minimal with the forklifts adjusted with louder beepers later on the day of the incident, August 8, 2011.
AMWU Victorian Secretary Steve Dargavel hailed the decision as a victory for all workers.
He said it proved that unions were able to take legal action under the Fair Work Act to remedy a health and safety matter, reducing reliance in Victoria on WorkSafe which has the lowest prosecution rate in the nation.
Mr Zwart said the case had proven the rights of workplace health and safety representatives to disagree with employers without suffering discrimination.
“I think it’s a big lesson for standing your ground when you believe you’re right and standing up to bullying,” he said.
“I’m forever grateful to the union for backing me up.”
The AMWU’s lawyer in the case, Slater and Gordon’s Brad Annson, said Justice Murphy’s decision confirms OH&S care as a workplace right. It means:
*employers should not regard an OH&S rep as un-cooperative just because his or her opinion does not agree with theirs. Bosses should accept that an independent OH&S rep has a duty of care to fellow workers under OH&S law.
*employers cannot evade their possible liability for wrongly imposing disciplinary actions by engaging an external consultant to investigate an employee.
*OH&S reps have protections under the Fair Work Act, provided they act with a genuine concern for safety. This applies whether or not those concerns are ultimately proved to be justified.
*wrongly suspending an employee was adverse action because it deprived a person of the satisfaction and dignity of work, with the final written warning jeopardising the security of Mr Zwart’s future employment.
The court found that Visy had engaged in adverse action against Mr Zwart, leaving it open to a maximum $33,000 fine on each of three breaches of the Fair Work Act.
Mr Street also faces two potential $6600 fines for his conduct.
The penalties will be determined by the judge in an upcoming hearing.