Transport Workers Union of Australia v Premier Motor Service Pty Ltd
Citation: [2015] FCA 650
At a glance
- Employees affected
- 1
What happened
the Applicant was employed by Premier Motor Service, a bus operator, for approximately 25 years and was a union delegate. Premier offered the Applicant the opportunity to undertake charter bus work on 6-7 August 2012 that would provide additional income and a change from regular routes. On 9 August 2012, Premier's General Manager advised the Applicant that the charter work would instead be subcontracted to other providers and the Applicant was reallocated to his usual weekly shift. The Applicant had engaged in industrial activity including union representation.
What was decided
The court found that removal of the Applicant from the charter work constituted adverse action that injuriously affected him. However, the court upheld the employer's ability to subcontract the work on the basis that the employer had discharged its burden of establishing that the decision to subcontract was not taken because of the Applicant's industrial activity. The union's argument that the timing and context suggested the subcontracting was retaliatory was rejected.
What it means for employers
Employers can make genuine business decisions to subcontract work, even if this removes opportunities from union-active employees. However, the decision must be based on legitimate business reasons, not in retaliation for the employee's industrial activity or union involvement. Employers bear the burden of proving the action was not taken for a prohibited reason.
What it means for employees
Removal of work opportunities can constitute adverse action if it occurs because of your industrial activity or union involvement. However, employers retain the right to make genuine business decisions to subcontract work. If you believe work was withdrawn in retaliation for union activity, the employer must prove otherwise.
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This summary was drafted from the published decision and reviewed before publishing. It is general information, not legal advice. For your specific situation, speak to the Fair Work Ombudsman (13 13 94) or a qualified lawyer. About these summaries & corrections →