HR implicated in ANZ's FOA breaches

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HR implicated in ANZ's FOA breaches

The decision is not yet available on the Federal Court's website.

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The ANZ bank will pay the Finance Sector Union $10,000 for breaching freedom of association provisions by threatening to sack a worker who was national president of her union, the Federal Court ordered today.

The worker, Joy Buckland, was manager of the Padstow branch in south-western Sydney. After she failed to stop her staff from attending a stop-work meeting, and was reported in the media as speaking out against the bank's position at a rally, she was formally warned by the bank. It also told her she could not speak against the bank publicly and she was threatened with the sack if she did so again.

Federal Court Justice Murray Wilcox ruled in May that the bank had breached sections of the federal Workplace Relations Act by trying to force her to go against her beliefs and those of her union.

This morning he handed down a $2,500 penalty for each of four breaches of the Workplace Relations Act, despite the fact that they each attracted a maximum of $10,000.

Justice Wilcox said he had decided to restrict the penalty to $10,000, instead of $40,000, because it would be 'inappropriate' to go with the higher penalty given that:

  • the four breaches arose out of one course of action;
  • though significant, the breaches were 'not the worst imaginable' as Buckland had not been dismissed or demoted;
  • the difficult personal relationship between Buckland and one of the bank's managers had contributed to the situation;
  • the bank had previously been prepared to reasonably accommodate Buckland's need to take leave from work in order to carry out her FSU duties;
  • this was the first occasion on which the bank had breached freedom of association provisions.

'Unwarranted and unfair'

However, Justice Wilcox said the breaches were 'significant' and 'went to the heart of the rights to be protected under the Act'. While it was possible the bank's managers had not known they would constitute infringements of the Act, 'they ought to have done so'.

'In a situation that required care and restraint, senior officers of the Bank deliberately did things that, on any objective basis, were unwarranted and unfair to Ms Buckland,' he said. 'They gave effect to an attitude that Ms Buckland's rights as a person and union officer were of secondary importance to the Bank's corporate and financial interests.'

The bank had put to Justice Wilcox that the conduct was not deliberate defiance, but rather due to the industrial inexperience of the manager in question.

But Justice Wilcox said it reflected poorly upon the bank's training regime that 'with this degree of ignorance and those attitudes' the manager had been promoted to have responsibility for 150 workers.

'It is not acceptable for senior management to put an unsuitable or insufficiently trained person into a position where he or she is responsible for employer-employee relationships, on a day to day basis, and then attempt to shrug off responsibility for the results of such unsuitability or insufficiency of training,' he said.

HR had been consulted

Added to that was the fact that the manager's actions had been supported by specialist and senior officers, including the HR department, he said. As to the bank's professed contrition, Justice Wilcox said: 'Repentance always gladdens the heart. However, in this case it comes rather late.'

The bank had defended the allegations on the basis that it had done nothing wrong, and only expressed regret when that failed, he said. 'Whether that regret has been conveyed personally to Ms Buckland or to the FSU, I do not know. It would be wrong for me to disregard counsel's intimation of regret. However, under the circumstances, I think it ought to be given little weight.'

FSU NSW state secretary Geoff Derrick told WorkplaceInfo the union was 'not getting excited either way' about the financial penalty, as the 'ANZ will have made that back by the time I've finished this interview'.

But he felt the bank would be affected by the 'public embarrassment of being found to be a bully in the workplace'. He said Justice Wilcox's comments were quite scathing and 'hopefully a good corporate citizen wouldn't want to hear that too often'.

The bank's last enterprise agreement expired in February last year, and Derrick said that 'sadly to say, I've not seen any evidence that the bank's addressing the issues Joy spoke out about - understaffing, overworking, stress and job security. They've been spending far too much energy on shooting the messenger.'

Derrick said pay was not central to the union's concerns - workers have received a 4% wage rise for each of the last two years - the union had made itself available to the bank for talk of the 'cornerstone' issues.

ANZ spokesperson Paul Edwards told WorkplaceInfo the bank had already implemented a number of briefings for managers around the country to ensure they were aware of their obligations under the Workplace Relations Act as 'whatever way you cut it, it's not acceptable for a company to be in breach of the law'.

Edwards said he didn't feel the case had wider implications for ANZ staff, as it had arisen out of a particular situation, and the bank had apologised to Buckland.

He said while the bank was happy to have discussions with the union over their issues of concern, it was also 'quite happy' to continue with the terms and conditions of the expired agreement. The bank and union have been deadlocked over the majority of the bank's managers signing to individual contracts, while the union wanted to continue to cover them collectively.

The decision is not yet available on the Federal Court's website.

 
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