Employment & Safety – Tips and Trends: Edition 26


  • Employer sticks to their gums in adverse action case – The Federal Court rejected a dentist’s unfair dismissal claim in Avenia v Railway & Transport Health Fund Ltd [2017] FCA 859. Most interestingly, the court found that the worker’s refusal to attend disciplinary meetings amounted to a repudiation of his contract of employment and justified summary dismissal. The claim was decided against the dentist, in no small part because the reasons which the Dentist suggested had motivated his dismissal were found by Justice Lee to be convoluted and unintuitive. However, the Court’s observation that the employer was not faultless and behaved at times in an “aggressive, confrontational” manner could have had significant consequences under different circumstances. It is entirely lawful for an employer to direct an employee to answer for disciplinary concerns in writing or in person, but this should always be done in a measured way, allowing ample time for consideration and response.
  • Well, Aldi damned… – The High Court has now finished hearing argument in a case concerning the approval of an enterprise agreement for the supermarket chain Aldi’s new distribution centre in South Australia. The case is significant because it centres on fundamental questions about which employees are eligible to vote for the approval of an enterprise agreement. Specifically, the case will provide guidance about whether future or prospective employees who will be covered by an enterprise agreement can cast a valid vote. Stay tunes for news about the Court’s decision.
  • High Court enters the fray – The High Court has denied BHP special leave to appeal a decision regarding workplace right of entry. The decision relates to the location where talks can be held with employees during visits by permit holders. Legislation provides that the default location for talks (if there is no agreement) is any location where workers “ordinarily take meals or other breaks”. The decision which BHP sought to appeal gives an expansive interpretation to this phrase, meaning that any location where employees are permitted to take their breaks may be used as a venue for right of entry talks, even if it is not a break room or rest area in the usual sense of the word.


  • “On one condition” –  The Fair Work Commission has imposed conditions on the entry permit of a union official who was found to be misinformed about the interplay between WHS laws and workplace rights of entry. In AMWU Victorian Branch [2017] FWC 3888, the FWC ruled that the union official’s application will be conditional upon him obtaining special training about when it is lawful to order a stoppage of work for safety reasons. The official was found to have spearheaded unlawful industrial action on a previous occasion under the guise of an exemption for safety-related concerns. Safety complaints are sometimes used by workers or unions as a pretence for unlawful entry or industrial action, but employers should always be conservative in the approach they take to dismissing concerns related to workplace safety. Legitimate safety hazards do provide additional rights to permit holders to examine worksites and for workers to cease work and penalties for unsafe work practices can include devastating fines and even imprisonment for individuals responsible. It is incumbent upon all parties to inform themselves of the law in this area and act reasonably.
  • The long and short of itABCC v Auimatagi [2017] FCCA 1722, the CFMEU was found to have engaged in adverse action against John Holland. It is unusual for an adverse action claim to be made against a union rather than an employer, but the basic principles are the same. The CFMEU organised a boycott and protest in response to John Holland’s “two longs” safety policy which requires employees to wear long pants and sleeves to ensure adequate protection from injury and to mitigate heat stress. The Court found that John Hollands policy was lawful and had been instituted for genuine safety reasons to ensure compliance with WHS laws. Judge Emmet referred to the actions taken by the CFMEU as unconscionable and ruled that the protest which involved encouraging workers to wear short sleeves and shorts amounted unprotected industrial action.

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Published: 18 August 2017

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