Australia: safety first — adverse action in the context of work health and safety

The recent Federal Court decision in AMWU v Visy Packaging Pty Ltd (No 3) [2013] FCA 525 demonstrates the careful balancing act an employer faces when disciplining an employee for misconduct where the employee has raised safety concerns. The case also highlights how a wide range of actions by an employer to manage an employee could be considered ‘adverse action’ under the Fair Work Act 2009 (Cth), including: commencing an investigation into an employee’s conduct; suspending an employee from employment on full pay; and giving an employee a written warning.

Jonathan Zwart was employed by Visy Packaging Pty Ltd in the role of a fitter and machine setter. Mr Zwart was a member of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU). Relevantly, he was also an elected health and safety representative for Visy under the Occupational Health and Safety Act 2004 (Vic). Forklifts used at Visy’s workplace were equipped with ‘warning beepers’ as a safety measure to manage the risk of a forklift causing injury on the noisy factory floor…

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