Australian Manufacturing Workers' Union v WW Wedderburn Pty Ltd

[2016] FWC 2260

[2016] FWC 2260 [Note: a correction has been issued to this document]

The attached document replaces the document previously issued with the above code on 11 April 2016.

The citation for Australian Nursing and Midwifery Federation v Kaizen Hospitals Pty Ltd [2015] FCAFC 23 in reference 4 has been corrected.

Katrina Alviano

Associate to Deputy President Gooley

Dated: 11 April 2016

[2016] FWC 2260

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.229—Bargaining order

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
W.W. Wedderburn Pty Limited T/A Wedderburn
(B2016/423)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 11 APRIL 2016

S.229 Application for a bargaining order.

[1] The AMWU alleged that W.W. Wenderburn Pty Ltd had breached its good faith bargaining obligations. It alleged that the disciplinary action and termination of Mr Caspersz’s employment was capricious and unfair conduct which undermined freedom of association or collective bargaining.

[2] Wenderburn denied the allegations and said that both the disciplinary action taken against Mr Caspersz and the dismissal of Mr Caspersz were legitimate and bore no relationship to bargaining or his role as a shop steward or his role in bargaining.

[3] The AMWU seeks reinstatement of Mr Caspersz.

The application for an interim order

[4] The initial application was brought on at short notice and the parties agreed that the AMWU’s application for an interim order should be heard and determined. The parties agreed that witness evidence should be accepted without the need to cross examine witnesses.

[5] The AMWU submitted that in deciding whether to issue an interim order, the Commission must determine if there is a serious issue to be tried and balance of convenience. 1

[6] These principles were discussed by Bromberg J in Quinn v Overland 2 where His Honour said:

“[45] In determining an application for interlocutory relief, the Court addresses two main inquiries. First, whether the applicant has made out a prima facie case in the sense that if the evidence remains as it is, there is a probability that at the trial of the action the applicant will be held entitled to relief. Second, whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted: Australian Broadcasting Corp v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [65], [19].

[46] The requirement of a “prima facie case” does not mean that the applicant must show that it is more probable than not that the applicant will succeed at trial. It is sufficient that the applicant show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights the applicant asserts and the practical consequences likely to flow from the order the applicant seeks. In that context there is no objection to the use of the phrase “serious question” to convey the strength of the probability: Australian Broadcasting Corp v O’Neill per Gummow and Hayne JJ at [65]-[72], Gleeson CJ and Crennan J agreeing at [19].”

[7] S.589(2) of the Fair Work Act 2009 gives the Commission power to make an interim decision. S.598(4) of the Act provides that a decision that is described as an order must be made by order. An example is given in a note and it refers to a decision that is described as a bargaining order.

[8] There were no submissions that the Commission was not empowered to make an interim bargaining order. I am satisfied that such a power exists. 3

The legislative framework

[9] Division 8 sets out the role of the Commission in facilitating bargaining.

[10] S.228 of the Act mandates the good faith bargaining requirements for a bargaining representative for a proposed enterprise agreement. Relevantly for this decision the AMWU relies on s.228(e) which obliges a bargaining representative to refrain from capricious or unfair conduct which undermines freedom of association or collective bargaining.

[11] s.231(2) of the Act provides the kind of orders that may be made and relevantly for this matter the AMWU seeks orders under s.231(2)(d), namely:

“an order to reinstate an employee whose employment has been terminated if the termination constitutes, or relates to, a failure by a bargaining representative to meet the good faith bargaining requirements referred to in paragraph 228(1)(e) (which deals with capricious or unfair conduct that undermines freedom of association or collective bargaining.”

[12] Regulation 2.11 of the Fair Work Regulations 2009 provides that in making such an order, the Commission may order the employee be reinstated to the position that the employee occupied prior to the dismissal or another position on terms and conditions no less favourable, continuity of employment and remuneration lost as a result of the termination.

[13] Before making an order the Commission must be satisfied that:

1. An application has been made. (This is not disputed in this case)
2. Bargaining has commenced. (This is not disputed in this case)
3. One or more bargaining representatives had not met or is not meeting the good faith bargaining requirements. (This is in dispute)
4. The applicant has complied with s.229(4) of the Act, namely:

4.1 written notice of the concerns have been provided to the relevant bargaining representatives;
4.2 the relevant bargaining representatives have been given a reasonable time to respond; and
4.3 they have notified that the relevant bargaining representative has not responded appropriately to those concerns. (This is not in dispute in this case –at least at the hearing of the application for an interim order).

Who is the bargaining representative?

[14] There is a dispute between the parties about whether Wedderburn remains a bargaining representative when it has appointed a bargaining representative to act on its behalf. This is an issue because the conduct complained about was the conduct of Wedderburn.

[15] It was not disputed that Mr Rochfort was appointed a bargaining representative by Wedderburn. Mr Rochfort submitted that once he was appointed a bargaining representative Wedderburn ceased to be a bargaining representative. Mr Rochfort submitted that Wedderburn cannot be a bargaining representative because it an inanimate body.

[16] The AMWU submitted that the appointment of a bargaining representative by an employer does not mean that the employer ceases to be a bargaining representative. It said this is clear from a plain reading of s.176 of the Act. It also said such a construction of s.176 is the only way effect can be given to the obligations in s.231. If the employer did not remain a bargaining representative its capricious or unfair conduct could not be the subject of a bargaining order. For example only an employer can terminate an employee. Only an employer can give effect to an order for reinstatement.

[17] I not persuaded at this stage of the proceeding that Wedderburn cannot be a bargaining representative because it is an inanimate body and has appointed Mr Rochfort as its bargaining representative.

[18] The Act is clear that an employer can be a bargaining representative. As it is an inanimate body it acts through a person who has actual or apparent authority. 4

[19] I further note that s.176 of the Act expressly provides that a union ceases to be a bargaining representative if an employee appoints another person as his or her bargaining representative and there is no equivalent provision for when an employer appoints someone else to be its bargaining representative.

[20] There is a serious issue to be tried that both Wedderburn and Mr Rochfort are bargaining representatives for the Agreement, and as such, conduct of Wedderburn is conduct that may be the subject of a bargaining order.

The necessary pre-requisites

[21] I am satisfied that the necessary preconditions for making an order have been complied with. Notwithstanding the AMWU’s error in its notice to Wedderburn and Mr Rochfort that Wedderburn could respond to the concerns raised by 24 April 2016, Wedderburn was subsequently advised of the error and it and Mr Rochfort were given a reasonable opportunity to respond.

Has Wedderburn engaged in capricious or unfair conduct?

[22] It is not disputed that Mr Caspersz was a member of the AMWU, a shop steward and a part of the bargaining team.

[23] The history of bargaining in relation to this matter was not in dispute.

The media allegation

[24] In September 2015, AMWU members employed by Wenderburn took protected industrial action. A picket line was in place at the site. Mr Caspersz spoke to a reporter from the Leader newspaper. He disputed speaking to the author of the article that appeared on RedFlag.

[25] In the Leader, Mr Caspersz is quoted as saying “previously we had nothing, we never had an agreement before” and “now after lots of hard negotiating by both us and the union, we’ve got everything in writing and we can go back to work with security and peace of mind that we have protection.” 5

[26] Mr Caspersz was further reported as praising the unity of his co-workers and solidarity shown by the union and members throughout the long battle.

[27] In the RedFlag article Mr Caspersz is quoted as saying “There has been a good relationship with the employer, but in the last three years we’ve noticed a change.” He was further quoted as saying “there were delays with emails and they bogged things down with paperwork and red tape.”

[28] Without direct quotes the article said Mr Caspersz recalled the look on the face of the company’s regional manager as the results of their strike action ballot were read out at the Fair Work Commission. He was then quoted as saying: “You could see the blood drain from his face as he saw each way people voted. “ 6

[29] In early November the parties attempted to finalise the in-principle agreement reached on 17 September 2015. However those negotiations did not produce an agreed document. On 2 December 2015 the AMWU notified further protected industrial action. 7

[30] On 12 January 2016, Wedderburn made allegations of misconduct against Mr Caspersz arising from his conduct on the picket line. He was alleged to have made unauthorised comments to the media in breach of his contract of employment which provided that he should avoid making comments to the media about Wedderburn. It was alleged he made unauthorised disclosure of confidential information in breach of his contract of employment by providing details about its customers including Coles, IGA, Woolworths, Foodworks and Costco. 8

[31] Subsequently Wedderburn alleged that he had “stormed out” of the meeting and he was directed to attend a meeting the next day to respond to the allegations. He was further accused of abandoning his employment. A further email was sent to Mr Caspersz alleging that he had engaged in misconduct by breaching confidentiality by having a conversation with another worker. 9

[32] Subsequently Mr Caspersz was advised that it found the allegations that he had made comments to media about Wedderburn was substantiated. It was determined that his explanation for his conduct was unsatisfactory. 10

[33] Wedderburn found there was insufficient evidence to find that he disclosed confidential information about customers. 11 It found he had refused to comply with a reasonable and lawful direction to remain in the 12 January 2016 meeting. It found that he engaged in misconduct when he discussed the allegation with another worker and copied him in on emails which contained confidential information arising from the disciplinary process.12

[34] Mr Caspersz was issued with a formal warning and advised that if there were any further instance of him failing to comply with directions his employment would be terminated without further warning subject to the allegations being substantiated and him being afforded procedural fairness. 13

[35] The AMWU responded to that warning. It disputed the findings and sought the retraction of the warning. 14 That proposal was rejected.15 At the hearing, the AMWU pointed to the time lapse between the incident and the taking of disciplinary action. Only after industrial action had recommenced did Wedderburn decide to investigate the allegations and issue the warning.

The Emerald allegation

[36] It was Mr Caspersz’s evidence and Mr Karl Watterson’s evidence that, when working at a site, it was the practice that technicians’ hours of work commenced when they left home and finished when they arrived home. Working hours were 8:00am to 4:30pm and it was their evidence that if they arrived home after 4:30pm they were paid overtime. 16

[37] On 12 February 2016, there were in place protected action notices which relevantly included a ban on performing overtime.

[38] At 3:00pm on 12 February 2016, Mr Caspersz had not completed the job at Emerald but to ensure he complied with the ban he decided to stop working and travel home. Mr Caspersz said that it would take him about 90 minutes to return home from Emerald. 17 Google maps states that it takes 1 hour 4 minutes to travel from Emerald to Thomastown, if there is no traffic.

[39] Mr Caspersz called Mr Aronica, the boss for that job, and told him that he was unable to complete the job because of the overtime ban. Mr Aronica said “OK. No worries but I might struggle to find someone, I’ll see what I can do.” 18

[40] Mr Caspersz advised the Store Manager that he could not finish the job because of industrial bans, namely a ban on overtime. A discussion occurred between the Store Manager and Mr Caspersz. Mr Caspersz said the Store Manager became angry at his decision. 19 As he was leaving Mr Caspersz received a call from Mr Soto from the National Office in Sydney. He told Mr Caspersz that “the industrial action was having an effect on everyone and that [he] was responsible. Mr Soto then laid it on thick about how [he] was damaging the company by maintaining the bans.”20

[41] Mr Sotto said that Mr Caspersz told him that if Wedderburn wanted to prevent this happening “union negotiations would need to resume.” Mr Sotto said he told him that “ he and the other technicians taking part in this type of action was actually putting the entire company at risk of losing [their] major customers, in particularly through sabotaging service calls like the one I was calling for, which in the customers’ eyes are seen as simply unacceptable.” 21

[42] About 20 minutes later Mr Caspersz received a call from Mr Alvarez. He told him to go back to the job. He refused because there was an overtime ban. Mr Alvarez said “overtime did not include travel” and Mr Caspersz said “it has always included travel at Wedderburn in all my years.” He told Mr Caspersz that it would be taken further including his pay. Mr Caspersz said he drove home and arrived at 5:30pm. 22

[43] On 15 March 2015, Mr Alvarez notified Mr Caspersz of four allegations namely he had failed to complete the job at Emerald and that the manager had advised Wenderburn that he did not want Mr Caspersz at that site again. Mr Alvarez said Mr Caspersz was not taking protected industrial action because he refused to perform work during ordinary hours. He therefore refused to obey a reasonable direction to complete the work. The store manager complained that he was abrupt and insolent. The Store Manager further complained that Mr Caspersz was on the phone during working hours for about ½ hour. Further he had failed to comply with Woolworths’ procedure when he attended the store.

[44] Mr Caspersz was invited to a meeting on 17 March 2016 to discuss the allegations. As a consequence Mr Caspersz’s employment was terminated because he failed to perform the allotted work during the available normal working hours.

[45] On 17 March 2016, after Mr Caspersz had been dismissed, Mr Watterson who was the co-delegate told Mr Alvarez that he was now the workers’ new representative. Mr Watterson told Mr Alvarez that the workers wanted to get the EBA signed. Mr Alvarez told him that “if [they] were to sign the EBA it [would] kill the business. It would be like handing the keys to the union.” Mr Alvarez then said “I don’t want to have the union in the negotiations. If the union was out, we could start negotiations tomorrow.” Mr Watterson asked “what sort of agreement would we have?” Mr Alvarez said “it would be a common agreement for each technician.” To which Mr Watterson said “exactly like we’ve got now” and Mr Alvarez said “yes”. 23 Mr Alvarez filed a statement in these proceedings and he did not deny making these statements.

[46] The AMWU submitted that there was a serious issue to be tried that the termination of Mr Caspersz was unfair or unfair. It submitted relied on the definition of unfair from the Macquarie dictionary. 24

[47] The AMWU further submitted that the decision to terminate Mr Casperz’s employment was capricious. It again relied upon the Macquarie dictionary definition of capricious. 25 It submitted that the final disciplinary process was abrupt and failed to afford Mr Caspersz with procedural fairness. Mr Caspersz said, given the short notice, he was unable to arrange a support person and he was not provided with an opportunity to respond to the allegations.26 Mr Alvarez did not respond to this allegation in his witness statement.

[48] Wedderburn submitted that its conduct was not unfair or capricious because it had a legitimate reason to terminate Mr Caspersz’s employment as his action was unprotected. It submitted that the Manufacturing and Associated Industries and Occupations Award 2010 provided that travelling time as follows:

    32.4 Transfers, travelling and working away from usual place of work

(a) Excess travelling and fares

An employee required to start and/or finish work at a job away from the employer’s usual workplace must be paid:

(i) travelling time for all time reasonably spent by the employee in reaching and/or returning from the job which is in excess of the time normally spent by the employee in travelling between the employee’s usual residence and the employee’s usual workplace; and

[49] Wedderburn submitted that Mr Caspersz would only take an hour to reach Wedderburn’s site and therefore he was not entitled to stop work 1.5 hours before finishing time. Further it submitted that the Award at clause 32.4 made it clear that travelling time is not overtime and therefore was not caught by the ban. Wedderburn submitted that Mr Caspersz’s conduct was particularly grave because it damaged its reputation with a major client. Wedderburn submitted that it had a valid reason to terminate Mr Caspersz in January over the media incident. Wedderburn submitted that unfair referred to the issue of whether it had afforded Mr Caspersz procedural fairness, and it submitted it had. Further it submitted that it could not be argued that its behaviour was capricious. Wedderburn submitted that his conduct at Emerald meant it had a valid reason to terminate his employment and as such its conduct could not be unfair or capricious.

[50] Whether particular industrial action was caught by a protected action notice was consider by the Federal Court in Esso Australia Pty Ltd v The Australian Worker’s Union. 27 Jessup J held that the question that needed to be asked to determine what a notice meant was “what the applicant’s management would reasonably have understood by that expression.”28 On the evidence as it currently stands there is an arguable case that Wedderburn knew that the overtime ban meant that employees would finish working ordinary hours at time that enabled them to return home by 4.30pm.29

[51] I am satisfied that there is an arguable case that the decision to terminate Mr Caspersz’s employment was unfair or capricious. There is an arguable case that his conduct was protected and the decision to terminate someone’s employment, because they took protected industrial action, is not only unfair it is a contravention of the general protections provisions of the Act. Further there is an arguable case that in making the decision to terminate Mr Caspersz, Wedderburn was motivated by its belief that Mr Caspersz was responsible for the industrial action being taken by the employees. I am satisfied that there is an arguable case that terminating a shop steward who has been part of the bargaining team since bargaining commenced and who plays an important role in ensuring the views of the employees are conveyed to the union will undermine collective bargaining. Further I am satisfied that there is an arguable case that such conduct would undermine freedom of association. Employees must be free to join unions or not join unions. They must be free to represent employees in bargaining. The Act provides that their involvement in these activities must not result in adverse action.

Balance of convenience

[52] The AMWU submitted that the balance of convenience favoured the making of the order. It submitted that Mr Caspersz could return to work without any adverse consequences forWedderburn. It submitted that the dismissal was hurting Mr Caspersz, both financially and emotionally. It submitted that the resignation of Mr Watterson meant there was a vacancy. It submitted that a failure to reinstate Mr Caspersz would have an adverse effect on collective bargaining. It submitted that damages would not be an adequate remedy.

[53] Mr Caspersz commenced his apprenticeship at Wedderburn in 2001. Prior to bargaining, there had been no issues with his performance.

[54] The AMWU submitted that Mr Caspersz was integral to collective bargaining and freedom of association. The AMWU submitted that the loss of Mr Caspersz would have a detrimental effect on the capacity of the AMWU and its members to bargain. 30

[55] Wedderburn submitted that Mr Caspersz would not suffer financially between now and the hearing and determination of this matter because he had been paid his long service leave on termination. Further it derided the submission of the AMWU about the importance of actually being at work for Mr Caspersz. It submitted that it had filled Mr Caspersz’s position but it did not respond to the submission that due to the resignation of Mr Watterson there was a vacancy Mr Caspersz could fill. It relied on a witness statement of Mr Joe Lazzarro who gave evidence that he did not want to attend court because Mr Caspersz might take action against him. 31 Mr Lazzarro’s one line statement does not explain the basis on which he made that statement and he did not say he would not be able to work with Mr Caspersz.

[56] Wedderburn submitted that Mr Caspersz’s departure would not impact bargaining. It submitted that Mr Caspersz had already been replaced as a delegate. It submitted that the evidence of Mr Caspersz’s involvement in bargaining did not support a finding that he provided any worthwhile assistance.

[57] I am satisfied that the balance of convenience weighs in favour of reinstating Mr Caspersz. While the hearing of final orders is set down 27 April 2016, there is no certainty that the matter will conclude on that day.

[58] I am satisfied that some of the damage that will happen to Mr Caspersz and the AMWU, if the reinstatement order is not made, is not compensable. I am satisfied that Mr Caspersz could successfully reintegrate to the workplace particularly given his undertaking not to apply an overtime ban to time taken travelling to and from work.

[59] I will therefore order that Mr Caspersz be reinstated to the position he occupied prior to the termination of his employment or if that position is not available to another position on terms and conditions no less favourable.

[60] I do not propose to make any orders about how pay and leave will be adjusted as it appears to me that those orders are more appropriately dealt with at the final hearing of the matter. However, I will give both parties liberty to apply if there are any matters which either party considers that this is necessary.

DEPUTY PRESIDENT

Appearances:

Mr B. Terzic for the AMWU.

Mr P Rochfort for Wedderburn Pty Ltd.

Hearing details:

2016.

Melbourne:

April 5.

 1  

 2 [2010] FCA 799 at [45]-[46]

 3   Health Services Union v Victorian Hospitals’ Association and ors[2012] FWAFB 2901

 4   Australian Nursing and Midwifery Federation v Kaizen Hospitals Pty Ltd [2015] FCAFC 23 and s.793 of the Act.

 5  AMWU application B2016/400 at Annexure Y.

 6   Ibid.

 7   Exhibit A3 at [34]-[38].

 8   AMWU application B2016/400 at Annexure Y

 9   Ibid at Annexures at AA and CC.

 10   Ibid at Annexure at DD.

 11   Ibid.

 12   Ibid.

 13   Ibid.

 14   Ibid at Annexure EE.

 15   Ibid at Annexure FF.

 16   Exhibit A1 at [15] and A2 at [75]. [83]-[87]

 17   Exhibit A2 at [92]

 18   Ibid at [93]

 19   Ibid at

 20   Exhibit A2 at [97]

 21   Exhibit R1.

 22 Exhibit A2 at [98].

 23   Exhibit A1 at [12]-[13].

 24   [2014] FWC 3724 at [73].

 25 AMWU op cit at [67].

 26 Exhibit A2 at [104].

 27 [2015] FCA 758.

 28   At [86]

 29 Exhibit A2 at [84].

 30   Exhibit A3 at [32]-[33] and [46] and exhibit A5 at email 0.

 31   Exhibit R4

Printed by authority of the Commonwealth Government Printer

<Price code C, PR578923>