Trade union found not to be a “competent administrative authority” per Article 5 of the Termination of Employment Convention 1982

CSR Viridian Limited (formerly Pilkington Australia Limited) v

Claveria [2008] FCAFC 177

In brief

On appeal, the Full Court of the Federal Court of Australia1.

overturned a decision that a trade union was a competent

administrative authority as defined by Article 5 of the Termination

of Employment Convention2.

The Court considered the meaning of "competent

authority" and "administrative" in the context of

the particular rights and responsibilities of trade unions in

Australia.

Background

C worked on the Appellant's automobile assembly line.

The Appellant's line manager took C to task for his alleged

practice of absenting himself from his work station from time to

time, in a manner that C felt to be "an oppressive regime of

surveillance". On 24 January 2007, C telephoned the branch

secretary of his Trade Union seeking its assistance. The branch

secretary later informed the line manager that he considered that C

had been "bullied and harassed". The line manager spoke

to the appellant's human resources manager, who said that

he was sick of coming over to the factory and that C should have

been sacked already.

The line manager convened a meeting at the factory attended by

C, a union delegate and others. At the end of the meeting,

C's employment was terminated.

C commenced proceedings in the Federal Court of Australia, inter

alia alleging that the appellant was in breach of section 659(2)(e)

of the Workplace Relations Act 1996 (Cth). That section applies

Article 5 of the Termination of Employment Convention, and

provides:

"(2) ... an employer must

not terminate an employee's employment for any one or more of

the following reasons, or for reasons including any one or more of

the following reasons: ...

(e) the filing of a complaint, or the participation in

proceedings, against an employer involving alleged violation of

laws or regulations or recourse to competent administrative

authorities;"

The trial judge was not satisfied that Mr C's complaint

to the union was not one of the reasons for his dismissal. Section

659(2) therefore potentially applied. She found that the Trade

Union was a "competent administrative authority" and that

Mr C's complaint to the union amounted to having

"recourse" to such an authority. She made orders for

reinstatement of Mr C's employment, all lost sick leave,

long service leave, annual leave etc, and ordered that the

Appellant pay a penalty of A$4,000 to Mr C.

The appellant appealed to the Full Court of the Federal...