A recent decision highlights the importance of an OH&S representative’s role as the Federal Court imposes a large penalty against Visy Packaging for taking unlawful action against a representative raising safety concerns.

In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 4) [2013] FCA 930, Visy Packaging was successfully prosecuted for taking adverse action against Mr Zwart, a safety representative.

In August 2011, Mr Zwart noticed the reversing beepers on Visy Packaging’s forklifts were inaudible on the factory floor. As a result, he lodged a hazard report with management and tagged a number of forklifts as ‘not to be used’. Mr Zwart also opposed on safety grounds temporary measures suggested by management to return the forklifts to service without resolving the inaudible beeper issue.

Mr Zwart was later subjected to an investigation, followed by suspension on full pay and a final written warning for his conduct. Mr Zwart’s union challenged this as adverse action taken against him because he was exercising his rights as an OH&S representative.

The Court held that Mr Zwart exercised a workplace right when raising his legitimate safety concerns, and that management had taken adverse action against him. The fact that Mr Zwart may not have helped his situation, by failing to adopt a more conciliatory approach when discussing the safety issues with Visy Packaging, did not lessen the seriousness of Visy Packaging’s actions.

As Murphy J stated, “actions taken by a health and safety representative in asserting a particular position on a health and safety issue should not be lightly treated as constituting uncooperative or obstructive behaviour.”

Murphy J was concerned to ensure any penalty sent “a message that deters others from the type of conduct seen in this case”.

Murphy J fined Visy $47,850, being at the time:

  • 70% of the maximum available penalty for the investigation and suspension; and
  • 75% of the maximum available penalty for the final written warning.

Murphy J also imposed personal penalties of $4,620 on a manager involved in the adverse action.  

Please contact the Workplace Relations, Employment and Safety team if you would like further information about properly managing workplace health and safety issues.