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Adverse action finding results in $25,500 worth of penalties being imposed

A crane hire company has been ordered to pay $25,500 in penalties after it was found to have taken adverse action against a union delegate who raised complaints about his pay.

The employee claimed that he and his colleagues, who were covered by the Company’s enterprise agreement, were entitled to penalty rates in addition to an all-purpose allowance. The employer and the employees had different views on the interpretation of a particular clause in the enterprise agreement.

Crucially, a Director of the Company sent the following to the employed union delegate (and other Employees):

“All, It has come to my attention some of you are unhappy with our interpretation of the crane allowance and how it should be paid. We will not be paying this at penalty rates. I’m aware you are planning on getting the union involved. However please note both companies are currently experiencing negative cashflow. We believe the $5 allowance is more than fair at a flat rate given the current climate. If this issue is pushed we have no option but to close down the current [project].”

About a week after the text message, and following discussions with the CFMEU, it was agreed that penalties would be paid until the interpretation of the enterprise agreement could be clarified.

At a toolbox meeting the following day, the union delegate and two other employees were terminated.

At hearing, Judge Lucev was very critical of the Company’s decision to sack the union delegate, stating:

“It is totally unacceptable for any employer to sack a worker because they have complained about not being paid as they are lawfully entitled to be, and for it to be done in such a humiliating and degrading fashion in front of other workers.”

However, Judge Lucev gave credit to the Company for conceding its liability and agreeing to pay penalties of $25,500.

Lesson for Employers

This case is a reminder for employers that employees have a workplace right to make a complaint about their wages, and it is unlawful to terminate an employee because they have raised such a complaint.

Lisa Aitken is an Accredited Specialist in Workplace Relations Law and the Managing Partner of Aitken Legal, a law firm specialising in employment law for employers. The information in this column is intended as a guide only.  Liability limited by a scheme approved under professional standards legislation.