Gift Giving for Non-Strikers OK

Construction, Forestry, Mining and Energy Union v Corinthian Industries (Australia) Pty Ltd [2014] FCA 239

When some employees of a door manufacturer refused to participate in strikes organised by the CFMEU, their employer’s reward for their loyalty and hard work with gift vouchers was not adverse action taken against the strikers, according to the Federal Court.

The employees who chose to continue working had allowed the company to manage a difficult situation and keep up with orders from valued customers. The management acknowledged these employees had gone the extra mile and ought to be recognised for doing so. The CFMEU decided that this was adverse action because the strikers had not received the vouchers, so took the company to court.

The Federal Court ruled against the CFMEU on all counts. It said the vouchers were clearly given to the employees who had “frequently (been) called upon to work longer hours than they would ordinarily have worked, and at times were called upon to do the jobs of others who were on strike”. The evidence, the Court said, clearly indicated that the vouchers were given only to those employees who did extra duties, and in the case of some state branches of the company not affected by pickets, the vouchers were not given to those employees. In other words, only those employees who worked in difficult circumstances and did the extra duties, were recipients.

The Court went on to point out that there was no case to answer on the grounds that the company discriminated against the strikers, or that the strikers were ‘injured’ in their employment by not receiving the vouchers. On the contrary, the law recognised that these issues could arise if there had been different treatment of employees in the same set of circumstances, but clearly here, that was not the case. The only employees who received vouchers were those who had assisted in this period, and in any event, the vouchers were not an entitlement or contractual obligation, but an additional benefit tied to specific behaviours.

This case demonstrates that employers need to take care if they decide to reward employees for loyalty in these circumstances. It is important that any show of support is directly linked to characteristics such as those present in this case, where the company gave the gift vouchers to the non-strikers “as a sign of gratitude by the company for having assisted the company to continue its business and to meet its commercial obligations during a difficult time”.