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Union wins adverse action claim

August 04, 2016

A Western Australia crane hire company was recently fined $25,500 for contravening sections of the Fair Work Act when they terminated a crane operator’s employment for expressing his workplace right of being underpaid for overtime.

In May 2014, the mobile crane operator and the Construction, Forestry, Mining and Energy Union (CFMEU) confronted WA Universal Crane Hire Pty Ltd, complaining that multiple crane operators had been underpaid as they were not being paid overtime penalties as per the Universal Crane Hire Enterprise Agreement.

Although the enterprise agreement entitled employees to overtime penalties on top of the “all purpose” crane allowance, the company’s director stated penalty rates would not be paid as the company was experiencing a negative cash flow.

On 6 June 2014, WA Universal Crane Hire dismissed the mobile crane operator and two other employees at a meeting in front of other crane operators, the director and three of the company’s shareholders. The CFMEU who represented the crane operator, claimed that the dismissal was adverse action for expressing a workplace right to enquire about his entitlements. This action contravened section 340 of the Fair Work Act.

Adverse action takes many forms, however, in this case, Section 342 of the Fair Work Act describes it as “action, such as dismissal, taken by an employer against an employee”.

Judge Antoni Lucey determined the conduct of the crane hire company and its contraventions to be of medium to upper level of seriousness and therefore the penalty agreed upon between the union and the employer was 50% of the maximum penalty. The Judge ordered the company to pay $25,500 in penalties to the CFMEU which would then be passed on to the employee.

This case serves as a reminder to members that terminating an employee’s employment because they have expressed a workplace right is unacceptable and will be addressed by the Commission.

The National Retail Association is here to provide members with advice on how to avoid adverse action claims and also represent members when situations as such as this arise. For further information, please contact one of our Workplace Advisors on the NRA Hotline by phoning 1800 RETAIL (738 245).

The full case can be read here.

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