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Exercise your managerial prerogative, but don’t be “anti-union”

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The Federal Court of Australia (Court) recently found that Thornton Engineering had terminated the employment of three workers for reasons that included the fact they were union members.

The Court decision included:

  • The imposition of a $60,000 fine (representing $20,000 for each terminated employee);
  • Compensation for lost wages in excess of $12,000;
  • A statement that the contraventions were serious matters;
  • A statement to the effect that the employer was “dogmatic” and “inflexible” and had “a deep seated antagonism to the union, union membership, and any meaningful role of unions in his workplace”;
  • A statement that the employer’s views were those of “a dogmatic, inflexible person, unprepared to engage in argument with any who disagree and who simply rejects the views opposed to his own. The respondent has not exhibited any genuine contrition for the contraventions”.

What can employer’s learn from this case?

Most employers will be aware that workplace legislation prohibits disciplining or terminating employees for discriminatory (race, religion, sex, etc) or unlawful/adverse (union membership, lawful industrial action, etc) reasons.

Employers are entitled to exercise managerial prerogative in running their businesses without such prerogative being unduly fettered.  Occasionally,however, an employer will be found to have exercised such prerogative in a discriminatory fashion and they will feel the displeasure of a Court or Tribunal.

Always bear in mind the objects of the Fair Work Act including object 3(e) which reads that the Fair Work Act is intended to have the effect of:

“enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms”.

For further information please contact one of Workplace Relations lawyers.

Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union v Thornton Engineering Australia Pty Ltd [2009] FCA 1584.

Author: James Hooper