Employer ordered to take back sackings by text – even though the jobs don’t exist anymore!
Posted on August 27, 2015
Earlier this month, 56 stevedores based in Sydney and 41 stevedores based in Brisbane received a text message from their employers, Sydney International Container Terminals Pty Ltd and Brisbane Container Terminals Pty Ltd, telling them to check their emails. Each of the employees had been emailed a letter confirming that their positions would not be “retained”, that their employment would end on 14 August 2015, and that they were not required to attend for work effective immediately.
On the employees’ behalf, the Maritime Union of Australia (the Union) launched urgent proceedings in the Federal Court of Australia seeking declarations that the employers had contravened an enterprise agreement in breach of the Fair Work Act 2009 (the Act), and orders for the employers to reinstate the employees. The Union’s application also sought an interim injunction restraining the employers from proceeding with the termination of the employment of the employees.
Central to the Union’s application was the fact that the employers were subject to the Maritime Union of Australia Terminals Greenfields Enterprise Agreement 2013 (the EBA). The EBA, like all EBAs, contained consultation obligations which required the employers to:
- Notify the Union and employees of changes in the workplace that are likely to have significant effects on its employees;
- Discuss certain issues concerning relevant changes in good faith with both the Union and the affected employees; and
- Provide to the Union and the employees concerned “appropriate relevant information about the changes”.
On the Union’s argument, the text message and email notification provided to the employees didn’t cut it.
The employers argued that the orders sought would amount to “reverse slavery” insofar as they would see the employees return to work where there was nothing to do. However Justice Rangiah decided to make the orders sought, justified as follows:
I am conscious that the grant of injunctions will force the respondents to maintain a relationship of employer and employee which they wish to sever, and this may be undesirable. However, the respondents are not obliged to provide the relevant employees with work if they are unwilling or unable to do so. The respondents will be required to continue to pay wages to those employees until the final judgment of the Court… The orders do not, contrary to the dramatic suggestion made by respondents, impose obligations on the respondents that may be likened to a form of reverse slavery.
The full hearing regarding alleged contraventions of the Act will take place next week. In the meantime, the orders obtained by the Union at the interim hearing mean that the employers must rescind their decision to terminate the employment of the relevant employees and are restrained from terminating the employment of any employees on the ground of redundancy.
These orders highlight the need for strict adherence to prescribed processes contained in enterprise agreements and industrial instruments, and show that the Court places great significance upon the consultation obligation. Even when the work has dried up, employers must ensure that they consult with Award/EBA covered employees and provide them with a genuine opportunity to influence the decision-maker.
Please contact a member of Lynch Meyer’s Workplace Relations team if you require advice about an enterprise agreement or Award process.
