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Introduction

This decision is about whether a member and former employee of the Transport Workers Union of Australia for more than 14 years, was unfairly dismissed.

Background

The applicant found employment with the Union through her mother, who at the time was its Office Manager. From 14 March 2006, she worked primarily in the Union’s Industrial section until 26 March 2020, when she was dismissed on the grounds of redundancy.

The applicant disputes that the dismissal was a case of genuine redundancy. She is protected from unfair dismissal because her period of employment with the Union was longer than the minimum employment period and her annual remuneration of $90,675 plus superannuation and a mobile phone was less than the high-income threshold.

Was the dismissal a genuine redundancy?

On the one hand the applicant put that her duties were that of “Industrial Administrator”, preparing and filing applications to the Commission dealing with disputes, enterprise agreements, protected action ballots, right of entry notifications, permits and returns. Also assisting in drafting enterprise agreements, updating annual wage sheets for six or seven modern awards and advising members about rates of pay.

On the other hand, the union claimed that the applicant’s role had effectively been redundant for years, as her substantive role was that of assistance to a researcher who had resigned four years previously, which resulted in a large proportion of her duties ceasing or reduced.

The Commission found that it was not plausible that the applicant would have been retained for such a long period without meaningful work to perform.

COVID-19 brings industrial peace

In early March 2020, the Union’s National Committee of Management resolved to suspend an industrial campaign which had been planned since 2017 and was due to crystallise in 2020. The “2020 Fight Campaign” was aimed at improving industry rates and conditions by enterprise agreements with approximately 200 aviation and road transport employers. It relied on a range of enterprise agreements expiring at the same time in 2020.

The Commission:

“Nobody could have foreseen that this timing would coincide with a global pandemic, with serious economic consequences for both the aviation and transport industries. Social distancing measures and limits on movement made campaign logistics practically impossible. Instead, the Committee moved to delay the campaign until at least September 2021. It also resolved to defer enterprise agreement negotiations in favour of Memorandums of Understanding where appropriate”.

Less money coming in

These resolutions, together with the prospect of COVID-19 pandemic-related work and movement restrictions, gave the union cause to consider the likely effect of reduced labour demand on membership levels – and membership fees. He formed the view that drastic action was required to secure its financial position, including the redundancy of two positions.

Failure to consult under the Award

In a manner that could be described as “do as I say, not what I do” that union failed to consult.

A dismissal is not a genuine redundancy under the Act unless the employer has complied with relevant applicable modern award consultation obligations. In this case, the Clerks – Private Sector Award 2010.

The Commission finding:

“At its highest, the Union’s consultation process amounted to [the union secretary] asking [the applicant] if she had ‘anything to say’ after she had been told her position was redundant. It was not a fair question in the circumstances. [The applicant] had no advance warning of the meeting or its subject matter. She was not in a position to respond in any meaningful way. She was still absorbing the news that she had just lost her job after 14 years’ service and that it was to take effect immediately”.

The Commission finding that because the Union did not comply with its consultation obligations under the Award the dismissal was not a case of genuine redundancy.

Union should have known better

The Commission:

“As a key stakeholder in the development of modern awards, the Union’s failure to consult with [the applicant] about the redundancy cannot be the product of its size, ignorance or unsophistication. Both the Union and [the secretary] must be taken to be familiar with award consultation obligations and their purposes – including in providing an opportunity for meaningful consideration of alternatives and in promoting the dignity of those affected by decisions about which consultation is required. Indeed, these are matters that often lie at the heart of the Union’s work.

“Inexplicably, these purposes seem to have been completely put aside so far as [the applicant] was concerned”.

The union argued that consultation about redundancy would not have made any difference to the outcome. The Commission’s response: “And perhaps the redundancy of [the applicant’s] position was inevitable in the circumstances, but what was the haste in carrying it out?”

Should the union be held more accountable?

The applicant argued, given the union should be held to a higher standard in relation to award contraventions because of its special role in the advocacy and protection of industrial terms and conditions of employment. The Commission disagreed:

“I do not consider that the Union should be held to a higher standard than any other employer defending an unfair dismissal case. The law applies equally to all”.

Alleged intimidation of witnesses:

The applicant makes the following allegation:

“It has been stated to the Applicant by several employees of the respondent that remarks have been made to them that if they spoke to, or assisted the applicant in any capacity even if Orders were granted by the Commission to appear, that their employment with the TWU would be in jeopardy.”

The commission responding:

“These are serious allegations. I am not in a position to test their veracity. They are matters that should be referred to the Fair Work Ombudsman for investigation. As the allegations are both unsourced and untested, I have given them no weight in my assessment of the fairness or otherwise of [the applicant’s] dismissal”.

Conclusion

On balance, the Commission, was satisfied the applicant’s dismissal was harsh and unreasonable and unfair.

Remedy

The parties both agreed that reinstatement would be inappropriate.

The Commission determined that had the union followed the consultation requirements, the applicant would have been employed for a further five weeks, and so awarded $8718.75 plus superannuation.

Commentary

The Fair Work Commission is a tribunal and has no legal powers as such. Both the applicant’s allegations and the award breach would need to be prosecuted by the Fair Work Ombudsman.