"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Fletcher International Exports Pty Ltd

[2013] FWC 7752

[2013] FWC 7752

FAIR WORK COMMISSION

DECISION

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

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
Fletcher International Exports Pty Ltd
(C2013/1557)

COMMISSIONER MACDONALD SYDNEY, 15 OCTOBER 2013

s.418 Application for an order that industrial action by employees or employers stop.

[1] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) filed a section 418 application under the Fair Work Act 2009 (the Act) against Fletcher International Exports Pty Ltd (the Employer), which is engaged in the meat industry.

[2] The basis of the section 418 application is the allegation by the AMWU that the Employer has engaged in unprotected industrial action against members of the AMWU employed at the Employer’s Dubbo worksite, in response to protected industrial action undertaken by members of the AMWU. (An order for a protected action ballot was issued by Senior Deputy President Harrison on 30 July 2013. The application for an order by the AMWU was uncontested by the employer. The Australian Electoral Commission issued a formal Declaration of Results on 19 August 2013, advising that 25 voters out of an eligible 26 voters approved of taking of industrial action and no voter disapproved.)

Grounds for s.418 Application

[3] The AMWU application set out its grounds for the s.418 application as recorded below.

(a) The Fletcher International Exports Pty Ltd (Dubbo) Abattoir Enterprise Agreement 2012 (the Agreement) covers employees engaged at the Dubbo worksite, including employees who work in the Maintenance area and whose employment is covered by classifications in the Manufacturing and Associated Industries and Occupations Award 2010. This Agreement expired on 2 April 2013.

(b) Employees in the Maintenance area have been negotiating for a new agreement that covers only them since the beginning of 2013. These employees have been taking industrial action in support of this claim since 9 September 2013.

(c) On 27 September 2013, employees were informed that any employees who engaged in industrial action would not be offered any overtime work; in effect, that the Employer had instituted an overtime ban. Employees were further told that they would be offered overtime if they resigned from the union, (the AMWU).

(d) Employees who have taken part in industrial action have in fact been refused overtime as a result.

(e) The employer has not complied with the requirements of s.411, 413(4) or 414(5); as such, the overtime ban is not protected industrial action.

Order(s) Sought

[4] The AMWU sought an Order that the unprotected industrial action by the Employer must stop and not occur and such Order is to remain in force for a period of one month.

TELECONFERENCE

[5] The s.418 application was filed on 1 October 2013 at 3.48 pm. A teleconference of the parties was organised for 2 October. The Employer denied that it had or was engaging in any overtime ban against members of the AMWU. The Employer was represented on the telephone by Mr Adam Isbester, Plant Manager and Mr Roger Fletcher, Chief Executive Officer.

[6] Ms Lucy Saunders, Legal Officer for the AMWU, pressed for a Hearing on the application.

[7] The Teleconference Hearing was set down for the next day, 3 October at 2.00 pm and a filing program for witness statements put in place.

[8] The AMWU filed on Tuesday afternoon, 2 October, six (6) witness statements:

David Rivett - Maintenance Fitter & AMWU Delegate

Paul Jensen - Apprentice Welder

Nicholas Grabianski - Apprentice Electrician

Rodney Todkill - Maintenance Fitter & Bargaining Representative

Colin Bartholomew - Maintenance Electrician

Geoff Wallace - AMWU Organiser

All witnesses were required for cross-examination by the Employer.

[9] The Employer filed six (6) witness statements on 3 October:

Farron Fletcher - General Manager

Roger Fletcher - Chief Executive Officer

Adam Isbester - Plant Manager

Sean Magnusson - Manager, Grain/Rail Department

Stuart Fairall - Maintenance Manager

Ian Peppernell - Leading Hand, Maintenance

All witnesses were required for cross-examination by the AMWU.

[10] The Teleconference Hearing lasted about four and a half hours. The difficulty that a hearing by telephone presented was that I was unable to make any assessment as to the demeanour of any witness. This was relevant given that conversations between employees, as witnesses, were in conflict on the key issue as to whether managerial employees had allegedly said, words to the effect, that an overtime ban was in place against AMWU members because of their protected industrial action.

CONSIDERATION

The AMWU’s Case

[11] The AMWU alleges that the Employer has engaged in unprotected industrial action against members of the AMWU. The unprotected industrial action by the Employer is in the form of refusing the opportunity for AMWU members to work overtime on a particular weekend. Mr Rivett (Maintenance Fitter & AMWU delegate) deposed that the normal process for weekend overtime is that an employee puts his/her name down on a sheet indicating availability to work weekend overtime. On Friday of each week, the Employer highlights, in a green colour, on that list those employees who will be working weekend overtime. (Ex. 1)

[12] Mr Rivett further deposed that in the maintenance department, there is plenty of weekend work and that there is an arrangement whereby permanent maintenance employees will be used wherever possible instead of contractors to perform the overtime. That arrangement, he said, arose out of a Memorandum of Agreement made in 2010 between the Employer and the AMWU. (Ex. 1, Annex. A)

[13] Although he did not put his name on the list to work weekend overtime for Saturday 28 September 2013, he had been told by non-union members on site that the Employer had engaged 15-20 contractors to do the weekend overtime, instead of the maintenance employees. The use of contractors to do maintenance work on the weekend was contrary to the Memorandum of Agreement.

[14] The AMWU submitted that the Employer was engaging in unprotected industrial action by refusing to utilise the AMWU members who had volunteered to work weekend overtime for the weekend of 28-29 September. That is, the overtime ban was the “Employer’s Response” to the AMWU protected industrial action but the “Employer’s Response” was not one recognised under the Act as the Employer had not carried out its “Employer’s Response” per the requirements of the Act. Although this was a selected instance, the AMWU filed witness statements of members who deposed to certain conversations between themselves and managerial employees. These conversations were to the effect that managerial employees had said that no overtime would be available to union members.

[15] Further evidence to support that the Employer had engaged in such conduct was that “as a general rule in a normal week, there will be overtime work for maintenance employees”, submitted Ms Saunders. (PN 1302 to 1303)

[16] The AMWU submitted that the failure to utilise volunteers for the weekend overtime and these certain conversations were evidence of unprotected industrial action by the Employer. The Employer’s conduct fell within the definition of industrial action found in the first part of section 19(1)(b) of the Act, “a ban, limitation or restriction on the performance of work by an employee ...” and section 19(1)(d), “the lockout of employees from their employment by the employer of the employees”. The meaning of “lockout” is contained within section 19(3). Thus, the failure of the Employer to provide overtime to AMWU members represented a lockout. The AMWU referred to case law to support this submission: CFMEU v Master Builders’ Association of Victoria (No 2) [2002] FCA 169.

[17] The AMWU said that under the Act, the Employer was entitled to engage in protected industrial action in response to the AMWU’s protected industrial action but this could only be done under the Act by the Employer complying with the Notice requirements for industrial action: section 414. In particular, sections 414(5) and (6) set out the notice requirements for an employer. In this case, the Employer had not given any notice of its intended industrial action.

[18] Accordingly, the AMWU sought an order, pursuant to section 418, that the Employer stop its unprotected industrial action.

The Employer’s Case

[19] Mr Isbester, Plant Manager, for the Employer submitted that the Employer had not engaged in industrial action against the AMWU members.

[20] Contractors had worked on the weekend in question, but that work had been scheduled for contractors to carry out that maintenance work.

Issues for Consideration

[21] The AMWU’s case is that the Employer engaged in unprotected industrial action against AMWU members by not providing weekend overtime work to certain AMWU members. The weekend in question was Saturday and Sunday, 28 and 29 September 2013.

[22] It seems to me that for the AMWU to prove its case, it needs to establish a positive finding going to two issues:

(a) The Employer made a decision to deny weekend overtime work to AMWU members because of the AMWU members’ protected industrial action; and

(b) The Employer implemented that decision on the weekend in question.

EVALUATION OF THE EVIDENCE

(a) The Employer Made a Decision ?

[23] Despite denials by certain witnesses called by the Employer that no decision had been made to take unprotected industrial action against AMWU members, I find that there is sufficient evidence that such a decision was made.

[24] The first lot of evidence pointing towards a positive finding that such a decision was made, arose out of a consideration of the evidence surrounding Mr Ian Peppernell, Leading Hand, Maintenance. There are two aspects to his evidence going to that positive finding.

[25] I refer to Mr Peppernell’s witness statement and certain denials contained therein. (Ex. 4) Mr Peppernell denied a conversation attributed to him by Mr Paul Jensen (AMWU member/apprentice welder).

[26] Paul Jensen deposed he had a conversation with Ian Peppernell on Friday, 27 September about weekend overtime availability. Mr Peppernell allegedly responded, “We are lodging notices of industrial action for next week. There is no overtime for any of Fletcher’s maintenance employees on the weekend, because of the industrial action being taken by maintenance employees”. Mr Peppernell also allegedly added, “If you resigned from the union then overtime would be available.” (Ex. 4)

[27] As previously advised, Ian Peppernell denied the foregoing allegation by Paul Jensen. In particular, he deposed he “was not involved in any direct conversation with Paul Jensen in regards to weekend overtime ...” (Ex. 11)

[28] The first aspect of Mr Peppernell’s evidence for consideration is that his denial of Paul Jenson’s allegation was not put to Paul Jensen during the cross-examination of Paul Jensen. That is, it was not put to Paul Jensen during his cross-examination by Mr Isbester (lay advocate for the Employer) that Jensen’s version of the Jensen-Peppernell conversation did not take place - given that Peppernell denied in his witness statement any conversation with Jensen about weekend overtime.

[29] The purpose of the cross-examination, from the Employer’s perspective, was to challenge those allegations made against managerial employees. That challenge was carried out by Mr Isbester, lay advocate for the Employer, and done so after I advised Mr Isbester of his necessity to challenge those alleged conversations with managerial employees. I took the view that Mr Isbester was unaware of this need to challenge and pointed out that he needed to challenge those allegations. I gave this advice when Mr Isbester failed to challenge the second witness (Rodney Todkill) called by the AMWU. Mr Isbester then challenged Mr Todkill’s witness statement that he had been told by Mr Sean Magnusson, Manager of the Grain/Rail Department, of a ban on weekend overtime because of the protected industrial action by AMWU members.

[30] The next witness called by the AMWU was Paul Jensen. Mr Isbester did not challenge Jensen’s version of the conversation with Peppernell that weekend overtime was being denied to AMWU members because of the AMWU industrial action.

[31] I pointed out to Mr Isbester that he had not challenged Jensen’s version of the conversation and in not doing so, he accepted Jensen’s version of the conversation as being true and accurate. Mr Isbester responded that he would rely on mistakes made in Jensen’s witness statement such as the correct job title of Peppernell. I asked Mr Isbester if those mistakes were such “material” mistakes that I should ignore everything Mr Jensen had said. Mr Isbester replied, in effect, that I should ignore Jensen’s evidence as to his conversation with Peppernell. (PN 196 to PN 218)

[32] I decline to ignore the unchallenged evidence of Paul Jensen that Ian Peppernell said that AMWU members were being denied weekend overtime because of the AMWU protected industrial action.

[33] The other aspect of Mr Peppernell’s evidence pointing towards a decision being made to deny weekend overtime arose out of the cross-examination of Peppernell.

[34] During cross-examination, Ian Peppernell was asked if Paul Jensen had approached him on Friday, 27 September about overtime availability. Peppernell responded, “He may have, I don’t recall, but I’m not saying he didn’t.” (PN 1125)

[35] This response that he may have had a conversation with Jensen about overtime availability, is at odds with his witness statement where Peppernell says he had no direct conversation with Jensen about overtime availability.

[36] Mr Peppernell was then questioned on the issue of AMWU members being denied overtime on the weekend because of the AMWU members’ protected industrial action and then specifically weekend overtime being denied to Paul Jensen:

“PN1129

You told him that there was no overtime because you knew that none of the maintenance employees who were participating in industrial action were going to get overtime, didn’t you? --- That doesn’t necessarily adhere to all of them, there’s other criteria in giving work ---

PN1130

But is that the case, that the reason those workers didn’t get overtime, in part, was because they’d engaged in industrial action? --- I thought you were asking me about Paul.

PN1131

I’m asking about everyone now? --- It may have something to do - I don’t directly remember saying that to him.

PN1132

Do you know if that was the case? --- With Paul it would be.” (Underlining added)

[37] Mr Peppernell’s response at PN1129 suggests that a decision had been made to respond to the AMWU’s protected industrial action by denying some of them (maintenance employees) weekend overtime. At PN1132, Mr Peppernell’s evidence suggests that a decision was made to exclude Paul Jensen from weekend overtime and that part of the reasoning for doing so, was because of the AMWU’s protected industrial action.

[38] Although this evidence of Peppernell suggests that a decision has been made to deny overtime to at least some AMWU members, the decision was made by Mr Peppernell who is a Leading Hand, Maintenance. Does a decision by a Leading Hand constitute a decision by the Employer? The other relevant criterion as to the foregoing question is that the evidence showed that Mr Peppernell was not the person who allocated overtime. That allocation was done by Stuart Fairall, Maintenance Manager. (PN 887) The follow up question that was not asked of Peppernell was to establish that his decision to consider the industrial action of the AMWU members, was not just his decision but had come from a discussion with a person in authority, such as Fairall, the Maintenance Manager who had the responsibility to allocate overtime.

[39] The second lot of evidence relied upon for a finding that a decision had been made to exclude AMWU members from weekend overtime, comes from the evidence of two witnesses about their conversation with Mr Stuart Fairall.

[40] Mr Colin Bartholomew, Maintenance Electrician, deposed to a conversation he had with Fairall on Friday, 27 September as to an Apprentice (Nicholas Grabianski) doing certain work on Saturday, 28 September. Mr Bartholomew deposed that Fairall responded:

“There is no work for you guys. There is no work for union members. If you’re not in the union you can work on the weekend.” (Ex. 5)

[41] Mr Nicholas Grabianski deposed that he was present for the Bartholomew-Fairall conversation and supported the version of the conversation given by Bartholomew. (Ex. 6)

[42] The witness statement of Mr Stuart Fairall does not address the Bartholomew/Grabianski conversation of Friday, 27 September. (Ex. 10)

[43] Mr Fairall was asked about issues by Mr Isbester during evidence-in-chief but was not asked about the Bartholomew/Grabianski conversation by Isbester.

[44] Under cross-examination, Ms Saunders for the AMWU put the Bartholomew/Grabianski conversation to Fairall and he denied telling them that there was no work for union members. (PN 1021)

[45] Despite the denial by Mr Fairall, there are two witnesses stating that he did say there was no work for union members. That evidence by Bartholomew/Grabianski is consistent with the claim of Paul Jensen that Ian Peppernell said there was no weekend overtime for AMWU members (maintenance employees) because of their industrial action.

[46] A third lot of evidence relied upon for finding that a decision had been made to exclude AMWU members from weekend overtime, comes from the evidence of David Rivett as to his conversation with Stuart Fairall, Maintenance Manager.

[47] Mr Rivett deposed as to a conversation he had with Mr Fairall on 9 September being the day that the AMWU began their protected industrial action. Fairall was alleged to have said:

“The Company has a right to respond to the action you’ve taken. No overtime will be allowed while industrial action is being taken by employees. Shane, (Refrigeration Fitter) who attended the meeting with Fairall) you have to give up your on-call privileges, give your cell phone and pager to Ian Peppernell”. (Ex. 1)

[48] Mr Rivett was not challenged under cross-examination by Mr Isbester as to the above conversation. Mr Rivett was the first witness called by the AMWU. It was when the second witness (Todkill) and third witness (Jensen) called by the AMWU were in the “witness box” that I took the view that Mr Isbester, as a lay advocate, did not realise he had to challenge the allegations of the AMWU’s witnesses as to conversations with managerial employees.

[49] Mr Fairall filed a witness statement and it does not address the conversation reported by Rivett - just as it did not address the Bartholomew/Grabianski conversation with Fairall. (Ex. 10)

[50] Mr Fairall was asked questions by Mr Isbester in evidence-in-chief. But Mr Isbester did not put the Rivett/Fairall conversation to Fairall for comment. (PN 853 to PN 871) As such, the evidence of Rivett as to that Rivett/Fairall conversation stood unchallenged.

[51] The AMWU then raised the Rivett/Fairall conversation under cross-examination and Mr Fairall denied telling Rivett there would be no overtime whilst industrial action was taken by employees. (PN 1012)

Summary

[52] A consideration of all of the evidence surrounding the allegation of Jensen, Bartholomew, Grabianski and Rivett leads me to conclude that the Employer had made a decision to respond to the protected industrial action of the maintenance employees (AMWU members). My conclusion comes from uncontested evidence and the weight of the evidence of the AMWU’s witnesses against the Respondent’s case. Mr Stuart Fairall, as the Maintenance Manager, held a position of ostensible authority (Manager and allocated overtime) and represented the Employer when he made a decision not to give weekend overtime to maintenance employees.

[53] The next issue to consider is whether that decision was implemented on the weekend of 28 and 29 September, by way of allegedly denying weekend overtime.

(b) Was the Decision Implemented ?

[54] The AMWU asserts that the Employer took unprotected industrial action against its members (maintenance employees) by denying them overtime for the weekend of 28 and 29 September 2013.

[55] The AMWU relies upon the fact that the list of volunteers for weekend overtime included twelve (12) members who were not selected for that weekend’s overtime. The twelve members are highlighted in pink colour on the list. (Ex. 1, Annex. B) Those employees highlighted in green colour were selected for weekend overtime. The employees highlighted in green are not maintenance employees. (PN 655 - 660)

[56] The AMWU also relies upon the fact that the Employer engaged contractors to work that weekend as proof of its claim that its members were denied weekend overtime. The AMWU also referred to the Memorandum of Agreement that required that the Employer give preference to engaging maintenance employees before engaging contractors. By inference, the engagement of contractors meant that the work being performed by contractors was work that could have been performed by maintenance employees.

[57] The AMWU also referred to a document that set out work to be performed that weekend and asserted that some of that listed work was of a type that would be performed by maintenance employees (Ex. 1, Annex. C), but was not performed by maintenance employees.

[58] As to the foregoing, the Employer denied that the failure to utilise maintenance employees (AMWU members) was unprotected industrial action.

[59] Mr Isbester, Plant Manager (and lay advocate for the Employer) gave evidence in the proceedings.

[60] He agreed it would be unusual to select contractors to perform maintenance work as against the Employer’s maintenance employees. (PN 586) Mr Isbester agreed that the work that was listed to be performed on the weekend (Ex. 1, Annex. C) was “standard repair and maintenance work for an abattoir”. (PN 595)

[61] However, Mr Isbester then referred to some of the named twelve employees and explained why they were not selected for overtime that weekend: for example, Jensen and Grabianski are Apprentices and could not work alone. (PN 606) Further, the work done by the contractors was a scheduled maintenance program. (PN 618) In re-examination, Mr Isbester advised that a lot of the work done by the contractors was work they did not finish from previous weeks. (PN 642)

[62] Mr Fairall, General Manager gave evidence. He agreed, under cross-examination, that it would be unusual for a contractor to carry out work that a maintenance employee was capable of doing and was available. (PN 954)

[63] He was then questioned on the list of tasks to be performed on the weekend (Ex. 1, Annex. C) and agreed that certain named tasks were maintenance work. (PN 891 - 904) But under further questioning as to why those tasks were not allocated to maintenance employees, he responded that “most of those jobs take longer than eight hours to do, and if they come into complication it could even run into 24 to 48 hours to complete these three parts that are in front of me, and that’s why most go in engaged then. Those jobs there have always been engaged by Mace (contracting firm) to do, those jobs have never been done by ours, by our employees”. (PN 970)

[64] To another question on maintenance tasks listed to be done that weekend, Mr Fairall said, “... it all comes under maintenance ... but the wring dry had to be measured up by the contractor so he could bill it and quote it and repair it for the site”. (PN 972) And as to the repair jobs being carried out by DND contractors, he said, “They were repaired as well as measured up for piping to replace the whole thing offsite”. (PN 972)

[65] Mr Fairall denied that there are normal maintenance tasks that occur every weekend. (PN 980) He agreed that the twelve maintenance employees (highlighted in pink) regularly put their names down for overtime but disagreed they would necessarily get overtime usually. (PN 983 - 984)

[66] Mr Ian Peppernell, Leading hand, Maintenance, gave evidence in the proceedings.

[67] Under cross-examination, he stated that overtime on the weekend for maintenance employees is usually available, “... if the task permits”. (PN 1078 - 1081)

[68] Mr Peppernell was referred to the Memorandum of Agreement and its proviso to give work preference to maintenance employees over contractors. It was then put to him that it would be very unusual to use a contractor instead of a maintenance employee. He responded, “No, I don’t believe so, because some days the job will take more than one day and our immediate maintenance staff don’t make themselves available for both days”
(PN 1091) but otherwise it would be unusual to use a contractor. (PN 1101)

[69] Mr Peppernell worked on the Saturday and/or Sunday of the weekend in question and he was the Supervisor for the day. He was the person who allocated the tasks for the day to the contractors. It was then put to him that he would normally allocate those tasks to permanent maintenance employees by way of weekend overtime. Mr. Peppernell responded, “If it was applicable, yes.” (PN 1111 - 1121) He was not then asked to explain that qualification.

[70] Under questioning from myself, Mr Peppernell said that some of the tasks set down for the weekend in question could have been done by some of the maintenance employees/AMWU members who had volunteered for weekend overtime. As to why they were not selected, his response suggested that there were enough maintenance tasks for one maintenance employee only but rather than bring in someone for a complete day, the maintenance tasks were shared amongst himself and the DND and Mace contractors. (PN 1141 - 1148)

[71] I then asked if the above response was a deliberate decision not to use AMWU members. He replied, “I would say what we’ve done there is given the work out to those people we thought had the skills that were needed to do it, and we didn’t deliberately set out to disassociate ourselves from the AMWU members.” (PN 1149)

Summary

[72] The AMWU asserted that the Employer took unprotected industrial action against its members (maintenance employees) by denying them overtime for the weekend of 28 and 29 September 2013.

[73] Having considered the evidence, I am unable to conclude that the existing evidence supports the AMWU’s claim.

[74] It is not disputed by the Employer that it did not utilise any of the twelve AMWU members who volunteered to perform weekend overtime for 28 and 29 September.

[75] Mr Isbester said that the maintenance work performed on that weekend was part of a scheduled maintenance program being undertaken by contractors - work not finished from previous weeks.

[76] Mr Fairall gave supporting evidence of the work being carried out was for contractors by referring to the wring dry being measured up by the contractor and piping work being carried out by the DND contractors. Mr Fairall also said that there was certain maintenance work only carried out by the Mace contractors and that those jobs are never performed by the maintenance employees of the Employer.

[77] Both Isbester and Fairall said that sometimes maintenance work was given to contractors and not to their own employees because the work will take more than one day and the maintenance employees don’t make themselves available for both days (of the weekend presumably).

[78] There was no evidence brought forward by the AMWU through its witnesses challenging the foregoing reasoning for using contractors on the weekend in question. An explanation for that may be because of the type of hearing that was taking place. That is, the hearing was by way of telephone with the AMWU advocate on the telephone in Sydney and the AMWU’s witnesses giving evidence by a mobile phone from Dubbo. As such, the AMWU advocate could not access her witnesses (as in the normal circumstance of a court room) and ask if they agreed with the evidence being put by Isbester and Fairall.

[79] Mr Peppernell was the Supervisor for the maintenance work for that weekend and gave evidence that suggested that there was enough maintenance work for one only maintenance employee but rather than bringing in one only maintenance employee, the work for one only maintenance employee was done by himself and the contractors.

[80] That evidence by Peppernell was not foreshadowed by him in his filed witness statement. Presumably, the AMWU official was hearing that evidence for the first time and again did not have the norm of being able to turn to her witnesses in a court room and ask if they agreed with what Peppernell was saying. Thus, have there been occasions where one maintenance employee has been brought in on other weekends to work alongside contractors and perform the maintenance work that is only enough for one maintenance employee to perform?

[81] For the foregoing reasoning I am unable to find that the Employer has intentionally by-passed using its own maintenance employees as part of an unauthorised industrial action campaign. It should be noted that the Memorandum of Agreement states that the Employer shall use its own maintenance employees, instead of contractors, “wherever possible”.

CONCLUSION

[82] The AMWU filed a section 418 application, alleging that the Employer had engaged in unprotected industrial action against members of the AMWU employed at the Employer’s Dubbo worksite. The unprotected industrial action is an alleged ban by the Employer on giving weekend overtime work to the twelve AMWU members who are maintenance employees. The alleged ban by the Employer is in response to protected industrial action undertaken by members of the AMWU.

[83] The AMWU in final submissions referred to section 19 Meaning of industrial action for arguing that the weekend overtime ban fell within that meaning of industrial action. In particular, the AMWU relied upon section 19(1)(b) and section 19(3).

[84] I reject the reliance upon section 19(1)(b) for covering the alleged ban, limitation or restriction on the performance of work, because section 19(1)(b) goes to a ban, limitation or restriction on the performance of work by an employee and not by an employer. Indeed, section 19(1)(a), (b) and (c) are directed to industrial action by an employee.

[85] It is only section 19(1)(d) that covers industrial action by an employer and is in these terms:

“(1) Industrial action means action of any of the following kinds:

(a) ... by an employee ...;

(b) ... by an employee;

(c) ... by employees

(d) the lockout of employees from their employment by the employer of the

employees

(2) ...

(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.”

[86] Any ban, limitation or restriction on the performance of work of an employee, by their employer, falls within the meaning of “locks out”: CFMEU v Master Builders’ Association of Victoria and Others (No 2) [2000] 96 IR 274.

[87] Goldberg J of the Federal Court of Australia, in that case, was considering the meaning of sections 170ML(3) and (4) of the Workplace Relations Act 1996 (Cth). Those sections state that an employer is entitled to lock out its employees in the context of enterprise bargaining and protected action. Section 170ML(4) relevantly uses almost the same wording as in section 19(3) of the Fair Work Act. Thus, a lock out is a reference to the employer “preventing employees from performing work under their contracts of employment without terminating those contracts”. His Honour then said of the meaning to be given to the expression “lockout” at page 284 as follows:

“This approach to the construction of the expression “lockout” in s.170ML(3) and (4) is consistent with the policy which lies behind the concept of “protected action” in s.170ML. The purpose of giving action or conduct the protection of “protected action” is to enable the bargaining party to engage in activities to further their industrial ends. In the case of a union or group of employees they are entitled to undertake any activity which comes within the scope of “industrial action” as defined in the Act which covers a considerable number of actions and activities; see s.4(1) of the Act. An employer has a lesser armoury. It can only deny its employees the opportunity to work. It would be a curious result in an industrial relations context if a union or employees could undertake the range of industrial action in the varying degrees of intensity which the definition of “industrial action” allows, yet the employer had to undertake an all-or-nothing approach - either full-time work or no work at all. There is nothing in the provisions of Div. 8 of Pt. VIB of the Act which leads to, or requires, the conclusion that the lockout allowed by s.170ML(3) must be total. In the same way as the industrial action available to employees allows employees to place bans or limitations on the performance of particular aspects of their work, the imposition of a lockout allows an employer to limit or restrict the amount of work it will allow its employees to undertake.

By virtue of s.170ML(3)(b) a lockout can occur for the purpose of responding to industrial action by employees. Why should it be thought that the only response of an employer to industrial action in the nature of a ban or limitation on the performance of a particular aspect of work must be a response of total shut-down - a response which might be thought in the particular context of limited industrial action to be a gross over reaction?”

[88] Accordingly, an alleged ban on weekend overtime falls within the meaning of “lock out” contained within section 19(1)(d) and 19(3).

[89] Section 418 mandates that the Fair Work commission (FWC) make an order that unprotected industrial action must stop, not occur or not be organised.

[90] The AMWU’s Draft Order contains two clauses of relief:

“4. INDUSTRIAL ACTION MUST STOP AND NOT OCCUR

4.1 The Employer must not engage in, commence, or threaten to engage in any industrial action whilst the Order remains in operation.

4.2 The Employer must immediately stop organising all industrial action that is threatened; and must not further organise any industrial action whilst the Order remains in operation.”

[91] Clause 4.1 becomes operative if an Order is issued by the FWC against the Employer.

[92] My reading of Clause 4.2, in the context of the overall AMWU case, is that an Order is sought to stop the Employer from organising industrial action and stop the Employer from continuing to organise further industrial action.

[93] Industrial action by an employer is unprotected, if the employer has not complied with certain requirements of the Act. Section 414 Notice requirements for industrial action, advises as to notice requirements to be given by employees and employers who want to engage in industrial action. Failure to give the appropriate notice requirements, means that any industrial action is not then protected at law.

[94] The Employer gave no notice, pursuant to section 414, that it intended to respond with its own industrial action against the AMWU’s protected industrial action. Accordingly, if the AMWU and its members (as witnesses) can make out a case that the Employer has engaged in industrial action, as part of a present and on-going campaign, by denying weekend overtime, then the FWC would have to issue an Order to stop that industrial action pursuant to section 418.

[95] In considering the evidence surrounding the AMWU’s case against the Employer, I found, for the reasoning set out in this Decision, that the Employer had made a decision to respond to the protected industrial action of the maintenance employees.

[96] I then considered whether the Employer had implemented that decision for the weekend of 28 and 29 September 2013 and found that the Employer had not done so. My reasoning for that conclusion is set out in this Decision.

[97] There was no evidence brought by the AMWU of further examples of denial of overtime being allocated to AMWU members. All that I had in front of me was a concentration of a single event: the weekend of 28 and 29 September and the alleged denial of weekend overtime to AMWU members.

[98] Accordingly, for the reasoning set out in this Decision, I decline to issue the Orders sought by the AMWU.

COMMISSIONER

Appearances:

Ms L Saunders, Legal Officer, for the AMWU

Mr A Isbester, Plant Manager for Fletcher International Exports Pty Ltd

Mr R Fletcher, Chief Executive Officer, for Fletcher International Exports Pty Ltd

Hearing details:

2013

Sydney [Telephone Hearing]

October, 1

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