Landmark legal challenge taken by union against Visy over safety
Sep 15, 2011
Jon Zwart, AMWU delegate and health and safety representative
The AWMU has launched action in the Federal Court to protect a member who is facing disciplinary action from his employer after he took action to address a serious health and safety issue.
In early August, Jon Zwart, an AMWU delegate and health and safety representative at Visy Coburg tagged (took out of service) a forklift whose reverse beeper was not audible..
In an extraordinary step, the company responded by standing down Mr Zwart and launching a disciplinary investigation into his actions which resulted in him being issued with a final warning.
The AMWU immediately commenced a Federal Court case against Visy to challenge the company’s action.
On 31 August 2011, the Federal Court ordered Visy not to act on the warning. It found Visy has a serious case to answer that its action taken against Mr Zwart was illegal.
AMWU Victorian Secretary, Steve Dargavel, said the union would argue in court that Visy’s action was an opportunistic attempt to discourage workers from raising safety concerns.
“Our union will not accept companies trying to frighten workers away from raising safety concerns.”
Mr Dargavel said that a WorkSafe inspector had attended the site, but the union would argue in court that the inspector failed to step in and protect Mr Zwart from the company’s actions.
“It is only the union which will fight these cases seriously. If the union was not around to do it, then clearly workers would think twice about raising safety concerns. It is little wonder that non-union workplaces have worse safety records than union jobs.”
Mr Dargavel said Visy’s behavior over forklift safety was particularly troubling because the company was fined more than $110 000 less than twelve months ago, following another serious warehouse incident involving a forklift.
In that incident a female employee at Visy’s Wodonga warehouse required hospitalisation and skin grafts after her leg was ‘de-gloved’ from ankle to hip when she was hit by a forklift in 2008.
In September 2010, the WorkSafe investigation report described the Wodonga incident as clearly avoidable and said, “Visy clearly failed in their duty to keep their workers safe”.
Mr Zwart, who has worked for Visy for the past 23 years, was acting in accordance with company policies established after the Wodonga incident.
Despite this, Visy has alleged that Mr Zwart – who also checked with a supervisor before tagging the forklift – should have handled the incident differently and have alleged ‘misconduct’ as the reason for their investigation.
In the past, the union was not able to prosecute companies for breaching state occupational health and safety law in Victoria - only WorkSafe could (and often doesn’t).
In this case, the AMWU is arguing that Visy has breached the general protections provisions of the FairWork Act which protects workers from adverse action when raising safety concerns.
The case will be the first time unions have used the new federal workplace laws (which replaced WorkChoices) to defend health and safety rights covered by state OHS legislation.
If successful, the case will set a precedent which sees the protection of union members strengthened.
The case before the Federal Court is continuing.
Contact Email: david.gibney [at] amwu.asn.au