Andritz Pty Ltd v The Australian Workers' Union

[2013] FWC 3883

[2013] FWC 3883

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.

Andritz Pty Ltd
v
The Australian Workers' Union; "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU); Quality Engineering Solutions; Primaweld Engineering Pty Ltd
(C2013/4747)

SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 18 JUNE 2013

Alleged industrial action at Irwin Stockfeed Feed Mill Project in Lang Lang.

[1] On 12 June 2013, Andritz Pty Ltd (Andritz) applied, pursuant to s.418 of the Fair Work Act 2009 (the Act), for an order to stop and prevent industrial action, directed against:

(a) The Australian Workers’ Union - Victoria Branch, including its officers, delegates, agents and employees (the AWU);

(b) The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) including its officers, delegates, agents and employees (the AMWU); and

(c) All employees of the following employers, who are employed or engaged to perform work at the Milburn Lake Pty Ltd trading as Irwin Stockfeeds Feed Mill Project at Lang Lang in Victoria and who are covered by the Building and Construction General On-site Award 2010 1 (the Award):

1. Darren Paul O’Neill trading as Quality Engineering Solutions (ABN 14 779 490 402);

2. Primaweld Engineering Pty Ltd (ABN 43 059 931 001); and

3. V B and Co Pty Ltd (ABN 098 312 424).

[2] The application was brought by Andritz in circumstances where it is the principal contractor in respect of a work site at Lang Lang in Gippsland. The principal purpose of the Lang Lang site is to construct a feedlot and feed storage facility for Irwin Stockfeeds (the Lang Lang project). The order sought was directed to the employees of each of the named companies who are contracted by Andritz to undertake work on the project. Andritz is “a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly)”, by the alleged industrial action.

[3] The application was first heard on 13 June 2013. The matter was adjourned into conference following appearances at a hearing on 13 June 2013 at the request of the parties. Following the conference, the applicant amended its application, subject to assurances given by the AWU and AMWU, seeking an interim order in the amended form. The AWU and AMWU did not oppose the making of the interim order in the amended form.

[4] On 13 June 2013, I made an Interim Order 2 directed only against the employees, as identified in (c) above, for reasons recorded in a decision of 14 June 2013.3

APPLICATION BY ANDRITZ TO EXTEND THE INTERIM ORDER

[5] On 17 June 2013, solicitors for Andritz requested that the matter be brought back on. A further hearing occurred on the afternoon of 17 June 2013. At the hearing, Andritz sought to extend the Interim Order, either in its interim or in a final form, to “the Australian Workers’ Union - Victoria Branch, including its officers, delegates, agents and employees”. No application was made in respect of the AMWU.

[6] The application to extend the Interim Order to apply to the AWU is brought in the context of the following events over the past three months:

● On 27 and 28 March 2013 the AWU and AMWU filed s.739 dispute notifications concerning alleged underpayment in respect of the Lang Lang project, directed to Andritz and its sub-contractors. 4 The applications were allocated to Commissioner Blair who, on 2 April 2013, listed the matters for conference on 12 April 2013.

● On 8 and 9 April 2013, industrial action occurred in the form of strike action by employees of the three sub-contractors.

● On 8 April 2013, Andritz applied for an order under s.418 of the Act. 5 An Interim Order was made on 9 April 2013,6 with the substantive hearing listed for 22 April 2013.

● The industrial action ceased following the making of the Interim Order–work resumed as normal on the Lang Lang project.

● On 12 April 2013, the conference before Commissioner Blair occurred.

● On 22 April 2013, the substantive s.418 hearing occurred.

● On 23 April 2013, a decision refusing the s.418 order was made. 7

● On 27 May 2013, the AWU wrote to Commissioner Blair, asking that the s.739 matters to be brought back on.

● On 3 June 2013, Commissioner Blair relisted the s.739 matters, initially on 24 June, amended to 25 June 2013.

● On 12 June 2013, a gathering of persons, variously described as a community protest, community gathering and picket, congregated outside of the gate to the Lang Lang project. Employees of the three sub-contractors attended at the site but did not enter the site or commence work.

● On 12 June 2013, the current s.418 application was made.

● On 13 June 2013, I made an Interim Order 8 directed only against the employees of the sub-contractors. Reasons for that decision were published on 14 June 2013.9

● There was no gathering of persons, however described, outside the gate of the Lang Lang project site on 14 and 15 June 2013. Normal work occurred.

● On 17 June 2013, the gathering of persons reoccurred and employees of the three sub-contractors again did not enter the site or commence work. Andritz applied to have the s.418 application relisted.

[7] Against that background, the issue for immediate determination is whether the Interim Order made on 13 June 2013 should be varied to bind the AWU and to require that it not organise, encourage or coerce the employees bound by the Interim Order to engage in unprotected industrial action. The determination of that issue rests essentially on the evidence as to whether the AWU has organised or is organising the industrial action which has occurred or is occurring at the Lang Lang project.

[8] During the hearing, Andritz contended that the AWU had not complied with assurances given at the 13 June 2013 hearing, that it would advise their members of the Interim Order and its consequences if breached, and to advise them to return to work, communicate with the community protest indicating that an Interim Order has been made obliging their members to return to work, with serious consequences for their members if breached, and requesting that the community protest not impede their entry to the workplace and in doing so use their best endeavours to identify persons within the community protest known to them and communicate those matters to them. Andritz contended that in these circumstances, consistent with a “well known principle in the courts” that if a party to proceedings is either in contempt of an undertaking given to the court or an order of the court, then they may not be heard in opposition to further conjunction proceedings, 10 the Commission should not allow the AWU to defend the application by Andritz to extend the Interim Order to the AWU.

[9] In the hearing of 17 June 2013, I decided to hear the AWU’s case against the extension of the Interim Order. My reason for doing so, is that on the evidence, I was not satisfied that the AWU had breached its assurances to the Fair Work Commission and to Andritz to such an extent that it should be denied the opportunity to be heard in relation to the extension of the Interim Order. The evidence in that respect was that on 14 June 2013 the AWU organiser, Mr J Sharp, diverted his journey to a previously arranged engagement to attend the Lang Lang project, observed that there was no community protest in place and that work was occurring as normal. He did take the opportunity to explain the Interim Order to a member who had contacted him 11 and made enquiries of that member as to whether he knew the identity of persons involved in the protest.12 The AWU should have taken steps to advise its members of the fact of the making of the Interim Order and its consequences and advised them to comply with it notwithstanding the disappearance of the protest and resumption of work on 14 June 2013. However in the practical circumstances of the 14 June 2013 and the attendance of Mr Sharp at the site on that day, I consider that the actions of the AWU were not such as to deny it the right to be heard in relation to the Andritz application to extend the Interim Order. In respect of 17 June 2013, the evidence is that Mr Sharp was unaware of the re-emergence of the protest and the failure of employees to undertake their normal work until after he received advice of the hearing of 17 June 2013,13 which was sent at 11.22 a.m. No attempt was made by Andritz to alert him to the re-occurrence of the protest when it was known to it at 6.00 a.m. on 17 June 201314 or to seek that the AWU takes steps at that time to give effect to its assurances when the practical circumstances of 14 June 2013 had changed.

[10] In support of its application to extend the Interim Order to bind the AWU, Andritz brought evidence from Mr G Scanlon, its Lang Lang project manager. Andritz accepted that there is no direct evidence that the protesters are AWU members or that they are associated with the AWU. Its case that the AWU had organised or is organising the industrial action rested on circumstantial evidence:

● There is an underlying dispute between the AWU and Andritz and the various sub-contractors on site which remains unresolved.

● The reoccurrence of industrial action shortly before proceedings before Commissioner Blair.

● A conversation on 12 June 2013 between Mr Scanlon and a Mr Rick Stevens, known to Mr Scanlon to be a member of the AWU and a former employee of one of the sub-contractors on site, in which Mr Stevens said the protest would remain in place until 24 June 2013.

● Photographic evidence of the community protesters taken on 17 June 2013, in which two participants wore AWU “hoodies”.

[11] On the basis of that evidence, Andritz invited me to infer that the AWU had organised or is organising the industrial action. I do not accept that any inference can be drawn as to the involvement of the AWU in organising the industrial action from the 12 June 2013 conversation between Mr Scanlon and Mr Stevens. Mr Scanlon’s evidence is that he asked what the protestors were doing there and said “we were in Fair Work on 24 June, why are they picketing the line when it would be sorted out in court”. 15 Mr Stevens’ response - “We’ll be here until the 24th”16 - was informed as to the proceedings before the Commission by Mr Scanlon. There is no basis to presume that his knowledge of the date had arisen from the AWU. Indeed by 3 June 2013, the changed date of 25 June 2013 was known to the AWU (and Andritz) and, if the AWU was in contact with persons to organise the community protest commencing on 12 June 2013, it is more probable than not that Mr Stevens would have been apprised of the 25 June 2013 date for the conference. The other matters relied upon by Andritz in support of an inference that the AWU has been involved in the organisation of the protest and/or organised that employees not attend for work in light of the protest, or encouraged them not to attend to work do not support such an inference. Particularly in light of the direct evidence of Mr Sharp that, on behalf of the AWU, he had no involvement in the establishment of the community protest17 and had not organised or encouraged the non attendance at work by employees in light of that protest.18 Some confusion by Mr Sharp as to his evidence as to when he spoke to one of those employees - a member of the AWU - does not cause me to doubt the direct evidence in relation to the absence of his involvement, on behalf of the AWU, in the protest or the failure of employees to attend to work. There is no evidence that any other AWU officer was so involved.

[12] On the evidence, I am not satisfied that the AWU has organised, encouraged or coerced the employees bound by the Interim Order to engage in unprotected industrial action. I am not satisfied that the Interim Order should be extended to bind the AWU.

[13] On 18 June 2013, the AWU forwarded information to the Commission, copied to Andritz, concerning steps taken by Mr Sharp and an AMWU organiser - Mr Dodd - on 18 June 2013 to give effect to the assurances given by the unions on 13 June 2013. This information was not before me during the hearing on 17 June 2013 and I have not had regard to it in reaching this decision.

FINAL ORDER

[14] The Interim Order of 13 June 2013 remains in place. I am obliged to finally hear and determine the Andritz application. I am inclined on the evidence currently before me, to make a final order in the terms of the Interim Order now in place, to operate for a period of six weeks. However, the evidence of Mr Sharp 19 suggests that at least one employee affected by the Interim Order is concerned by its making on the basis that he was instructed by his employer to go home and tell the other employees to go home in light of the community protest and, as a result, the employees were not engaged in unprotected industrial action. If there is evidence which makes good this proposition in respect of the absence from work, any employees subject to such an instruction by their employer should not be subject to an interim or final order. In the circumstances, it is necessary to hear and determine the substantive application by Andritz and afford the employees, the unions and Andritz an opportunity to bring any evidence in relation to matters to this point and any other relevant submissions to making of a final order.

[15] Accordingly, I will relist the matter for the purpose of hearing and determining the application for a final order at 10.00 a.m. on Friday, 28 June 2013 in Melbourne. In the event that no affected person wishes to put further submissions or evidence, I will make a final order in the terms of the current Interim Order. Should any affected person wish to bring evidence or put submissions against such a course, they are directed to advise the Commission, with a copy to Andritz (which is directed to post such information on the notice board at the Lang Lang project site for the information of employees affected by the Interim Order), the AWU and the AMWU, setting out the outcome they seek in relation to a final order and outlining the basis for and any evidence they intend to bring in support of that outcome by noon on Wednesday, 26 June 2013. Andritz is directed to take all reasonable steps to bring this hearing date and the associated directions to the attention of employees affected by the Interim (and proposed final) Order. The AWU and AMWU are directed to take all reasonable steps to bring this hearing date and the associated directions to the attention of its affected members.

SENIOR DEPUTY PRESIDENT

Appearances:

M Follett with C Iverson for Andritz Pty Ltd.

L Buntman for The Australian Workers’ Union.

D Vroland for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

Hearing details:

2013.

Melbourne:

June 17.

 1   MA000020.

 2   PR537830.

 3   [2013] FWC 3790.

 4   C2013/3765 and C2013/3790.

 5   C2013/3868.

 6   PR535510.

 7   [2013] FWC 2451.

 8   PR537830.

 9   [2013] FWC 3790.

 10   Transcript, at para 306.

 11   Transcript, at para 258.

 12   Transcript, at para 270.

 13   Transcript, at para 265.

 14   Transcript, at para 149.

 15   Transcript, at para 123.

 16   Transcript, at para 123.

 17   Transcript, at paras 275 and 291.

 18   Transcript, at para 408.

 19   Transcript, at para 257.

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