AMWU v Visy Packaging Pty Ltd (No 3)  FCA 525
On 5 August 2011 an employee, Jonathan Zwart (Mr Zwart), who was also an AMWU delegate and elected Health and Safety Representative (HSR), was taken by surprise by a reversing forklift at the Visy Packaging Pty Ltd (Visy) Food Can factory in Coburg, Victoria. As a consequence Mr Zwart, acting in his capacity as an HSR, tagged the forklift as unsafe to operate because he could not hear the reversing warning beepers on that forklift. Mr Zwart subsequently tagged a second forklift that morning for the same reason.
Shortly after tagging the forklifts, Mr Zwart attended a number of meetings with management. Mr Zwart explained that he had tagged the forklifts because their beepers could not be heard above the factory noise. Alternative solutions were suggested, including using forklifts from a different part of the factory and using the horn while reversing. Mr Zwart was unhappy with these suggestions and said that he would tag any forklifts which had inaudible beepers.
The Production Manager consulted with the company which leased Visy the forklifts, who said that there was no Australian Standard for the required decibel level of a forklift warning beeper.Visy management at the factory decided that a WorkSafe Inspector should inspect the forklifts and provide advice. Mr Zwart was asked to attend a meeting with management and a WorkSafe Inspector. It became apparent that the WorkSafe Inspector disagreed with Mr Zwart’s actions, stating that a forklift needed only one of four warning signals; the beepers, the horn, warning lights, or reversing lights. The WorkSafe Inspector was also of the opinion that Mr Zwart had issued a “cease work” direction under the Occupational Health and Safety Act 2004 (Vic) (OHS Act) by tagging the forklifts, which Mr Zwart denied.
Mr Zwart became uncomfortable at this point, and left the meeting to seek advice from the AMWU. He returned to the meeting, and explained that he would not answer any more questions until he had a union representative present.
Mr Zwart then left the meeting, and the WorkSafe Inspector decided that the temporary measure proposed earlier, for employees to use the forklift horn while reversing, was satisfactory. The forklifts were returned to service while Mr Zwart took his lunch break. Federal Court explains that HSRs have a “workplace right” to express a different view on the resolution of WHS issues
A mechanic was called in later in the afternoon and repaired the beepers so that they were audible above the factory background noise. The Court found that there had been little lost production time.
The Operations Manager was concerned about how Mr Zwart behaved during the meetings over the course of the day, and decided that an investigation into his behaviour should take place. He suspended Mr Zwart from work with pay while the investigation was conducted. The Operations Manager thought that Mr Zwart had failed to cooperate during the meetings about the forklifts.
The AMWU sought an injunction to halt the investigation and suspension, which was ultimately unsuccessful. However, following this, Visy decided that the investigation should be conducted by an independent party.
As a result of the investigation, the General Manager for Visy’s Food Can Division determined that Mr Zwart had been uncooperative with managers during the meetings, and decided to issue to him a Final Written Warning.
The AMWU then made an application to the Federal Court for declarations and penalties against Visy, alleging that the investigation, suspension and Final Written Warning constituted adverse action taken for a prohibited reason contrary to s 340 of the Fair Work Act 2009 (Cth) (FW Act). They brought the action against Visy as well as the Operation and Production Managers individually as parties responsible for the alleged contraventions.
The AMWU’s argument was that Mr Zwart tagged the forklifts because he had a duty to protect the safety of his workplace both as an HSR and as an “ordinary” employee under the OHS Act. It argued that duties under the OHS Act are “workplace rights” for the purposes of FW Act. The AMWU also submitted that Mr Zwart was subjected to adverse action, being the investigation, suspension and Final Written Warning, because he exercised his workplace rights in tagging the forklift.
Was adverse action taken against Mr Zwart?
Justice Murphy explained that an action is “adverse” for the purposes of the FW Act where it exposes the employee to a “reduction in security of their future employment”. What this means is that any action which could potentially lead to an employee being dismissed is adverse action. However, adverse action is only unlawful if it is for one of the prohibited reasons set out in the FW Act.
His Honour said that the investigation, suspension and Final Written Warning were all examples of adverse action which was taken against Mr Zwart, because all three involved reductions in the security of his employment.
Investigations, even when brought in good faith and carried out properly, are examples of adverse action where they expose the employee to a reduction in the security of their employment. The outcome of an investigation can include disciplinary action against an employee, bringing them closer to having their employment terminated. Justice Murphy was careful in his decision to explain that nothing he said was to be understood as preventing employers from conducting investigations where necessary for nonprohibited purposes.
The suspension from duty on full pay was adverse action because it was a substantive change to Mr Zwart’s employment and causing him a detriment; being forced to be away from work on full pay was detrimental to Mr Zwart because he could no longer talk to or spend time with his workmates or “obtain the satisfaction that work tends to bring.”
The Final Written Warning was also adverse action, because it meant that Mr Zwart could have his employment with Visy terminated without any further warning or opportunity to improve his conduct or performance.
Was Mr Zwart exercising a workplace right?
Justice Murphy said that Mr Zwart’s actions in tagging the forklifts and attending the meetings with management were all part of a single course of events. There was some contention between the parties about whether Mr Zwart tagged the forklifts as an HSR or a “concerned employee”, but this distinction was not important. Work Health and Safety legislation, in this case, the OHS Act; impose duties on all employees, and not just HSRs, to exercise reasonable care with relation to workplace health and safety.
Mr Zwart was found to have exercised a workplace right by tagging the forklifts and discussing in good faith with management the best way to address his concerns.
The Court held that part of an HSR’s workplace right is the ability to disagree with an employer, and even the safety regulator, about the correct method to address a safety hazard. The right to advocate a different solution is part of the HSR’s role. The Court said that action taken as a HSR in asserting a particular position on a health and safety issue “should not be lightly treated as constituting uncooperative or obstructive conduct”.
What was Visy’s reason for taking the action?
Visy attempted to claim that Mr Zwart was suspended for his conduct in the meetings, rather than for tagging of the forklifts. Visy argued that Mr Zwart’s conduct during the meetings were such that an investigation and suspension from work was necessary. It alleged that Mr Zwart:
- failed to consider a temporary measure suggested by the Production Manager and began to walk out of the office
- refused to answer questions put to him by the WorkSafe Inspector
- refused to follow instructions given by the WorkSafe Inspector and left the meeting early, and
- was generally uncooperative and obstructive.
It also argued that the General Manager made the decision to issue a Final Written Warning for reasons independent of Mr Zwart’s actions in tagging the forklifts. The General Manager argued that he was quarantined from the fact finding process, and relied solely on the independent investigator’s report.
Justice Murphy was not satisfied with the General Manager’s evidence, and found that Visy had a “guiding hand” in how the investigation was conducted, and that the General Manager was not an impartial decision maker solely reliant on the investigation report. It was relevant that:
- Visy approved all of the questions asked by the investigator.
- Mr Zwart was interviewed for the investigation with managers present, unlike any other parties.
- The General Manager was part of conversations with managers about the events.
- The General Manager received a written summary of the events from Visy’s Human Resources department which included statements such as “Mr Zwart had caused a cessation of work” and had caused a “loss of production time”.
- The General Manager had a discussion with the Operations Manager, a witness to the events, about what course of action to take in dealing with Mr Zwart’s alleged misconduct.
Justice Murphy found that there was insufficient evidence to prove that the adverse action taken against Mr Zwart was done for a reason other than a prohibited one. Visy had failed to show that the tagging of the forklifts was not an operative factor in the decision to investigate, suspend and issue a Final Written Warning to Mr Zwart.
Justice Murphy explained that HSRs, simply for being HSRs, are not immune to any adverse action, but that in the specific circumstances there was a lack of evidence of any non-cooperation by Mr Zwart. Visy had, in its defence, not launched any attack on Mr Zwart’s motives during the events, or alleged that he was not genuinely concerned with safety during the meeting.
Individual liability of Visy managers
Justice Murphy found that the Operations Manager was the main decision maker in Mr Zwart’s suspension. He based his decision to suspend Mr Zwart on prohibited reasons, and was found to have personally contravened the FW Act .
By contrast, the Court found that the Production Manager, who passed on the message to Mr Zwart that he was suspended, did not know the reasons for the suspension, and therefore was not found to have been individually responsible for the contravention.
Lessons for employers
This decision is a timely reminder that adverse action does not just include termination, but any interaction between employers and employees on a dayto- day basis. Any action taken by an employer which can make employment less “secure” is potentially adverse action.
This does not mean that an employer cannot take action against employees for misconduct, simply because they are HSRs. However, managing an HSR requires a more stringent approach to ensure that no inference can be drawn that action was taken for a prohibited reason. Visy’s extensive evidence in this decision was largely ignored by Justice Murphy, who preferred Mr Zwart’s evidence.
Carrying out the duties of an HSR in accordance with health and safety legislation and in good faith is a workplace right, and part of that right is the right to constructively disagree with others, including the safety regulator, about the best course of action to deal with a safety concern.
Visy was found to have contravened the FW Act, not because they took action against an HSR, but because they took action for a prohibited reason. There was never any indication of misconduct or anything disingenuous about how Mr Zwart went about his HSR or general employment duties. HSRs who do not conduct themselves properly in the role are not immune from employer’s taking “adverse action” against them for that reason.
It is also a timely reminder that penalties can also be imposed on individuals for contraventions of the General Protections provisions under the FW Act.