Visy Packaging Fined for Adverse Action Against Safety Officer

Packaging company Visy Packaging has been fined for taking adverse action against its employed safety officer under the Occupational Health and Safety Act 2004 (Vic). The safety officer had labelled two forklifts at the Melbourne facility as being defective and unfit for use which led to his eventual warning for engaging in serious misconduct.

Resulting from the safety officer’s initial determination that the two forklifts were defective, senior management had initiated meetings with the officer to resolve the matter. This was ineffective as the proposed replacement forklift was further labelled as defective by the officer.

Visy was concerned with the safety officer’s failure to accept alternative proposals put forward by Visy’s senior managers and with his “uncooperative” and “obstructive” manner during the meetings. As a result of this concern, Visy suspended the safety officer on full pay while it conducted an investigation into the matter. This later led to his official warning for serious misconduct accompanied with a warning that further misconduct would lead to termination.

The safety officer and the AMWU commenced proceedings in the Federal Court against Visy and two managers of Visy claiming they had taken adverse action against the safety officer in contravention of the Fair Work Act 2009 (Cth). The two cases were Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Pty Ltd (No 3) [2013] FCA 525 and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 4) [2013] FCA 930.

Justice Murphy found that the safety officer had exercised a workplace right when undertaking his duties. Any adverse action taken against him, Murphy concluded, was resulted directly from his exercise of that right. The investigation exposed the safety officer to a “reduction in the security of his future employment” and this “represented a deterioration in the advantages of his employment”.

The case highlights the point that provided that there is a genuine concern for safety in their action, an employee exercising duties under OH&S legislation will have a workplace right that is protected under the Fair Work Act 2009. An employee is entitled to disagree with an employer in relation to an occupational health and safety issues. Employers should not regard a safety representative as un-cooperative or obstructionist simply because his or her opinion differs from that of the employer.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

Large fines to deter adverse action