The Fair Work Commission has for the first time granted interim orders reinstating an employee whose dismissal was found to be a breach of the good faith bargaining obligations.
Implications for employers
Employers need to take care when considering termination during bargaining for an enterprise agreement. Employees who are part of the bargaining team are likely to be seen as important to the collective bargaining process, with the result that their dismissal may amount to a breach of the good faith bargaining obligations.
Whilst the interim orders made in this case have been subsequently set aside by consent, the case indicates a willingness on the part of the Commission to apply the good faith bargaining obligations in this way.
A scales and packaging company dismissed an employee when he refused to finish a job late in his work day because completing it would have required him to breach a protected overtime ban. The employer claimed this was a failure to comply with a reasonable direction to perform work during ordinary hours.
The company had previously disciplined the employee by formal warning for misconduct in making unauthorised comments to the media.
The Commission accepted that the AMWU had established an arguable case that the employer knew the overtime ban meant employees would have to complete their ordinary hours at a time that enabled them to return home by their normal finishing time.
Deputy President Gooley said that it was also arguable that the employee’s conduct was protected action and that:
the decision to terminate someone’s employment, because they took protected action, is not only unfair it is a contravention of the general protections provisions of the Act.
Deputy President Gooley went on to say:
Further there is an arguable case that in making the decision to terminate [the shop steward], Wedderburn was motivated by its belief that the employee was responsible for the industrial action being taken by the employees.
The termination of the employee (who was a shop steward and had been part of the bargaining team since bargaining commenced and who, in the Commission’s view, played an important role in ensuring the views of the employees were conveyed to the union,) was found to have the likelihood of undermining collective bargaining.
In light of this, Deputy President Gooley accepted that the AMWU had shown that Wedderburn engaged in capricious or unfair conduct that undermined freedom of association and collective bargaining by disciplining the employee.
An interim order was made for the reinstatement of the employee, however it was subsequently set aside by consent.
AMWU v W.W. Wedderburn Pty Limited T/A Wedderburn  FWC 2260