“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v UGL Operations and Maintenance Pty Ltd

[2014] FWC 8387

[2014] FWC 8387

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
UGL Operations and Maintenance Pty Ltd
(C2014/6942)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 24 NOVEMBER 2014

Application to deal with a dispute.

[1] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and The Australian Workers’ Union have notified a dispute to the Commission about the decision of UGL Operations and Maintenance Pty Ltd, Applus RTD Pty Ltd, USI Pty Ltd, Veolia Environmental Solutions and Brockman Engineering Pty Ltd (the contractors) to stand down employees on 25 July 2014. The contractors all perform work at the Shell Refinery in Geelong.

[2] The operators at Shell had given notice that they were to take protected industrial action commencing at 5pm on 24 July 2014. The proposed industrial action was an indefinite ban on the issuing of clearances. As a result the contractors advised their employees that Shell had advised them that Shell did not require maintenance work to be performed on the days that the operators were taking industrial action. As a consequence some of the employees of the contractors were stood down while a number were redeployed.

[3] The Unions have filed material in support of their applications. The contractors are due to file their material by 9 December 2014 and the application is to be heard on 18 December 2014.

[4] The Unions sought the production of the following documents from each contractor.

In this Schedule:

“document” or “documents” has the meaning given in the Dictionary to the Evidence Act 1995 (Cth).

“proposed industrial action” means industrial action notified by The Australian Workers’ Union to Shell Refining (Australia) Pty Ltd (Shell Refining) to commence on 25 July 2014.

1. The contract under which UGL Maintenance and Operations Pty Ltd provided services (as at July 2014) at the Geelong Oil Refinery;

2. Any document recording communications between Shell Refining and UGL Maintenance and Operations Pty Ltd regarding the proposed industrial action.

3. Any document recording communications between Shell Refining and UGL Maintenance and Operations Pty Ltd regarding whether or not the proposed industrial action was likely to proceed.

4. Any document recording communications between Shell Refining and UGL Maintenance and Operations Pty Ltd (in the period between 21 and 26 July 2014) regarding negotiations between The Australian Workers’ Union and Shell Refining for a new enterprise agreement covering employees at the Geelong Refinery.

[5] On 17 November 2014, I issued the orders.

[6] On the same day UGL advised that it objected to the orders and the application to have the orders set aside was heard on 19 November 2014.

[7] At the hearing, UGL Operations and Maintenance Pty Ltd, Applus RTD Pty Ltd, Veolia Environmental Solutions and Brockman Engineering Pty Ltd advised that while they had not notified the Commission of their opposition to the orders, they too sought to have the orders issued to them revoked. Those contractors adopted the submissions of UGL.

[8] Ms Claire Brown, on behalf of UGL, submitted that the principles outlined in Justice Munro’s decision in Re Clerks’ (Alcoa of Australia - Mining and Refining) Consolidated Award 1985 should be followed.

[9] Ms Brown submitted that the documents sought are not relevant to the issues in dispute. In relation to Order 1, she submitted that the contract was not relevant to the arguments advanced by the Unions that there was no industrial action or a stoppage of work or that the employees could have been usefully employed elsewhere. She submitted that in circumstances where the contract was confidential the burden on UGL will outweigh any value the material may have to the Unions’ case. She submitted that the Unions should be required to specify which parts of the contract they claim are relevant and that should be particularised in the order.

[10] If the contract was to be produced it should be only able to be inspected by the Unions’ legal representative.

[11] Further, Ms Brown submitted that the order was premature as contractors had not yet filed their material. It was further submitted that the Unions were fishing and that the order was oppressive.

[12] Mr Craig Dowling, on behalf of the Unions, submitted that the contractors rely on the direction of Shell, that they were not to supply maintenance workers on that day because of the proposed industrial action of the operators, to support their contention that their inability to provide work was not something they were reasonably responsible for.

Order 1

[13] Mr Dowling submitted that central to the dispute was whether Shell have the right under the contract to notify the contractors that they were not required to work on that day. Further it was submitted that whether the contract provided that, if the protected industrial action did not take place, Shell was required to direct them to return to work is relevant to the dispute.

[14] It was submitted that the contract between Shell and the contractors was therefore relevant.

Orders 2 and 3

[15] Mr Dowling submitted that Shell advised the contractors that it would inform them if the situation at Shell changed.

[16] It was submitted that communications between Shell and the contractors about the proposed industrial action was relevant as was any communication about whether the industrial action would proceed or not.

Order 4

[17] It was submitted that at the time negotiations for an agreement between Shell and operators were ongoing. It was submitted that any communications between Shell and the contractors about the likelihood, given those negotiations, that the protected industrial action was going to take place is relevant.

[18] Mr Dowling submitted that the documents sought have been specifically identified. He submitted that the period of time is relatively short and that it cannot be suggested the production of the documents is oppressive.

[19] Mr Dowling submitted that the application was not premature as the contractors’ reason for standing down the employees has been clearly articulated and given the short time between now and the hearing they may be prejudiced if they are not given access to the documents before the contractors file their material.

[20] Mr Dowling advised the Unions were not seeking orders against UGL Limited.

Conclusion

[21] There was no dispute between the parties about the approach the Commission should adopt when issuing notices to produce.

[22] In this case, the matter in dispute is of narrow compass. Relevantly in this matter UGL may stand down employees if there is industrial action or there is a stoppage of work for any cause for which the employer cannot be reasonably held responsible and employees cannot be redeployed.

[23] UGL relied on Shell’s direction to justify its stand down to its employees. The right of Shell to give such a direction is relevant to this proceeding.

[24] I accept the submissions of UGL that the contract is confidential and that much of the contract is not relevant to the matters in dispute. However that does not mean it should not be produced. The document is produced to the Commission and upon it being reviewed by the Commission the non relevant parts of the contract can be redacted and the Unions will only be permitted to inspect the redacted copy.

[25] I accept the Unions’ submissions that the other categories of documents are relevant and I do not find that the production of such documents would be oppressive. The documents go to the issue of what the contractors knew and when. This is relevant to the issue of when the contractors knew that the protected industrial action was not going ahead. I also do not accept that the order to produce is premature. This is not a situation where the matters in dispute are unclear and where it is necessary to await the contractors’ material to identify the issues in dispute.

[26] Therefore I dismiss the application to set aside the notices to produce. However the notices will be varied to provide that the date for compliance is 4pm on 28 November 2014. In addition the order issued to UGL Limited will be revoked as the Unions have advised that they are discontinuing the proceeding against UGL Limited.

DEPUTY PRESIDENT

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