Two unrelated companies gave certain employees $300 gift cards for working through a union strike. But their gifts came back to bite.
The union took the companies to the Federal Court and argued that the failure to give gift cards to the striking employees amounted to the companies injuring the employees who went on strike and/or discriminating between employees based on who went on strike or not, all for simply exercising their workplace rights. The union claimed that the companies breached s.340 of the Fair Work Act 2009, which prohibits the taking of ‘adverse action’ against an employee because he or she has exercised a workplace right.
The companies then had the burden of proving that they did not take adverse action. They were able to satisfy the Judge that the reason for the gifts was to show gratitude to the employees who did not go on strike for their extra effort in assisting the companies continue business and meet their commercial obligations at a difficult time. The employees did not miss out on a gift because they had gone on strike.
The Federal Court also concluded that, by not giving the striking employees a gift, the companies had not injured those employees. Also, there was no discrimination between employees because they were not treated differently while in the same position. They were in different positions; some were striking and some were not.
The companies were successful against the union but at a price in terms of legal costs and distraction from their core businesses. No less than seven senior managers had to prepare and give evidence in the case! Costs are rarely recoverable in Fair Work Act matters.
Employers can still reward extra effort and high performance but they should seek advice for other situations, especially at times of union industrial activity.
The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues because Helping You is Our Business.
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