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

[2016] FWC 8383

[2016] FWC 8383

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action

Broadspectrum (Australia) Pty Ltd
v
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
(C2016/6829)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 23 NOVEMBER 2016

Alleged industrial action at Broadspectrum (Australia), Caltex Newport Site.

[1] Broadspectrum (Australia) Pty Ltd (Broadspectrum) lodged an application seeking orders that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) stop organising industrial action at the Caltex site in Spotswood Victoria.

[2] The application was listed for hearing at 1pm on 19 November 2016. At that hearing, Mr Craig Kelly, the Assistant Secretary of the AMWU, attended by telephone and sought an adjournment of the hearing until 21 November 2016. This application was not opposed by Broadspectrum.

[3] As a consequence, I directed that the AMWU file any material it sought to rely upon in opposition to the making of an interim order and Broadspectrum to file in support of its application for an interim order. That material was due at 4pm and 6pm respectively on 19 November 2016.

[4] Mr David May, the Contract Manager for Broadspectrum, gave evidence 1 by telephone but was not cross examined in light of the adjournment of the proceedings. His evidence was relied upon by Broadspectrum to support of its application for an interim order. In addition, CCTV of a meeting conducted by Mr Tony Mavromatis, an organiser with the AMWU, at the site on 18 November 2016 was tendered.2

[5] In accordance with the directions, the AMWU filed a witness statement of Mr Mavromatis and submissions. Broadspectrum filed a further statement of Mr May 3 and submissions.

On 20 November 2016, I issued an interim order. 4 My reasons for doing so are set out below.

[6] The AMWU did not attend the hearing of the application for final orders. Mr Barry Terzic, the AMWU Industrial officer, advised that the AMWU sought to rely upon the material already filed plus the email. Mr Chris Gianatti, a legal practitioner, advised that he had advised Mr Terzic that Mr May would be providing additional evidence at the hearing and advised him of the content of that evidence.

[7] Mr May gave evidence at the hearing. 5

[8] At the hearing, I advised that I would not have regard to Mr Mavromatis’ statement as he was not available for cross examination. The statement was subsequently tendered by Broadspectrum. 6

[9] On 21 November 2016, I issued final orders. 7 My reasons for doing so are set out below.

Background to the dispute

[10] Broadspectrum is contracted to perform upgrade work at the Caltex Newport fuel terminal in Spotswood.

[11] The Caltex site is located in what is known as the “Altona Area”. 8 The Altona Area refers to an area within a radius of eight kilometres from the intersection of Kororoit Creek Road and Millers Road, Altona.9

[12] Broadspectrum and its employees are covered by the Broadspectrum Australia Services Enterprise Agreement 2015. 10 The employees’ rostered hours of work are 7am to 5.30pm Monday to Friday. Employees may be required to work overtime on Saturday and Sunday.11

[13] Mr Mavromatis was aware of the Broadspectrum Agreement and said it is “very different to the typical agreement that would apply to work like this job.” 12

[14] Mr Mavromatis said that, across Victoria on major construction sites, Monday 21 November 2016 is an RDO. 13 Mr Mavromatis was aware that the employees of Broadspectrum were not entitled under the Broadspectrum Agreement to an RDO on 21 November 2016.14

[15] On 17 November 2016, Mr Mavromatis attended the site along with an organiser from the CFMEU. Mr May met with Mr Mavromatis and said to Mr May “you are not telling me you are going to be using this agreement are you for these works? David this is a South Australian agreement isn’t it.” Mr May confirmed that this was a national agreement and it was what they used to tender to win the work. Mr Mavromatis said “this is crazy.” 15 Mr Mavromatis then proceeded to hand out a union flyer to the employees. He told the employees that “these are the rates you should be on.” Those rates of pay were higher than the rates provided for in the Broadspectrum Agreement.

[16] On 18 November 2016, Mr Mavromatis again attended the site prior to the commencement of work. CCTV footage of that was tendered. Mr Mavromatis called the workers who were outside the gate together at 6.40am and addressed the meeting. There was some discussion. Two votes were taken in quick succession. Not all those present at the meeting voted. The meeting then disbanded at 7.03am and the employees then entered the site. 16

[17] Mr May attended the site at 3.30pm and spoke to the Broadspectrum employees who told him “that they were made to be part of the meeting by Mr Mavromatis and could not go against a union ban not to work on Monday, 21 November.” Mr May told the workers that they were required to attend work on 21 November 2016. 17

[18] Mr May spoke to another unnamed worker who was at the union meeting who told him that Mr Mavromatis proposed that the workers impose a ban on weekend work. When a Broadspectrum worker asked about Monday, Mr Mavromatis advised that Monday is an RDO. 18 When he was told it was not an RDO under their EBA, Mr Mavromatis is said to have said “everybody is back to work on Tuesday.”19 When the initial vote was taken on the weekend work ban, only a few workers voted and Mr Mavromatis is then said to have said “get your hands up in the air - these are your conditions you are fighting for.”20 More workers put their hands up and Mr Mavromatis said that the vote to ban weekend work was carried and the meeting broke up.21

[19] Mr May said to ensure that Broadspectrum employees knew that they were required to work on Monday a text message to that effect was sent to each of its employees. 22

[20] Mr Mavromatis, in his statement, did not deny the words attributed to him.

[21] He said the workers were dissatisfied with their conditions and had been working long hours. He said they wanted to take some time off and he asked them if they wanted to take Monday off and they indicated they did. 23

[22] Mr Mavromatis later contacted another contractor on site and asked about the RDO situation. Mr Mavromatis said “he implied that if there were a consensus on the RDO occurring on the site, the job’s principal, Caltex, would accept that.” 24 Mr Mavromatis said he asked for written permission from Caltex to hold a meeting and a vote later that day. He then received a text message from the contractor which said “After talking with Caltex management they have agreed to release the blue collars on site for a re vote and return to work by 2.15pm 18-12-2016.” A further text was sent indicating this should have been 18-11-2016.25

[23] Mr Mavromatis then conducted a meeting and the workers voted to take a site wide RDO on Monday. Mr Mavromatis said he believed that everything he did was with the principal’s and Broadspectrum’s consent. 26

[24] Mr May, in his second statement, said that Mr Mavromatis did not at any time have Broadspectrum’s consent to hold a meeting. He said Mr Mavromatis did not seek permission from him or any other Broadspectrum manager on site. 27 Mr May said that at around 2pm the Broadspectrum employees tried to get their manager’s attention while he was on the phone, and they were told to come back later if they needed something.

[25] Mr May said that he was informed by Mr Ray Box, the Site Manager for Brockmans, that he had authorised a meeting for Brockman’s employees with the union.

[26] In his third statement Mr May said that, on 19 November, he received a phone call from Mr Mavromatis. Mr Mavromatis asked Mr May if he wanted to sort the matter out and sit around the table. Mr May said that it was the union which was attacking his employees and he was not happy about that and that intimidation was not acceptable. Mr Mavromatis said that he had got their attention and that was the strategy. He also said he could also apply an alternative strategy.” 28

[27] At the hearing, I was advised by Mr Gianatti that the employees had not attended work on 21 November 2016 and that the site was open and the employees could have performed work.

[28] Mr May gave evidence that work had only just begun on the site and there was much to do to ensure other contractors could do their work. He said the work of the Broadspectrum employees was essential to this work. Mr May said reliability of service was vital for Broadspectrum to win further packages of work from Caltex over the next two years. 29

Submissions of Broadspectrum

[29] Broadspectrum submitted that the evidence clearly established that industrial action was occurring and that it was being organised by the AMWU. It submitted that Mr Mavromatis had organised a ban on weekend work at the meeting on the morning of 18 November 2016. It further submitted that the meeting on the afternoon of 18 November 2016 was not authorised by it and further the employees of Broadspectrum were required to attend work on 21 November 2016. It further submitted that I could be satisfied that further industrial action was being organised by Mr Mavromatis. It said that Mr Mavromatis had not denied the allegations made by Mr May about Mr Mavromatis’ role in organising the industrial action. It submitted that evidence of ongoing organisation of the industrial action could be found in Mr Mavromatis’ conversation with Mr May on 19 November 2016.

[30] The AMWU submitted, in opposition to the making of the interim order, that the first meeting organised by Mr Mavromatis was not industrial action because it occurred before working hours. It submitted that the second meeting was not industrial action because it had been authorised. It further submitted that no industrial action would occur on the Monday as the RDO was authorised, and in any event, the employees were casual employees and each start and finish represents a new period of employment. I take this submission to mean that those employees were entitled to accept or reject the offer of work on a daily basis. It further submitted that Broadspectrum’s text to employees was ambiguous and there was no direction to attend work. It submitted that no interim order should be made.

[31] In its email, the AMWU submitted in opposition to the making of the final order, that it did not and was not organising industrial action. It submitted that it was not, at the time of the hearing, encouraging any ban or limitation of the performance of work by any of the site employees and there was not a skerrick of evidence to the contrary.

Interim Order

[32] I issued an interim order on 20 November 2016 after considering the evidence and submissions of the parties. Given I had acceded to the request of the AMWU to adjourn the matter until 11am on 21 November 2016, I was satisfied that the application was not able to heard and determined within 48 hours.

[33] I was satisfied that there was a serious issue to be determined that the AMWU organised industrial action on 18 November 2016 and that it was organising industrial action, namely a ban on working on “construction rostered days off” into the future and a ban on working overtime on the weekends.

[34] The meeting held prior to the commencement of work was of course not industrial action by the workers. However, there was a serious issue to be tried that Mr Mavromatis, and hence the AMWU, had at that meeting organised the ban on weekend work.

[35] I am not required to determine if the employees who attended the meeting in the afternoon were taking industrial action. The orders sought are directed towards the AMWU. There is a serious issue to be determined that at that meeting Mr Mavromatis, and hence the AMWU, organised further industrial action, namely the ban on attending work on 21 November 2016. Mr Mavromatis was aware that the Broadspectrum employee’s enterprise agreement did not provide for employees to have an RDO on 21 November 2016. Mr Mavromatis’ own evidence makes it clear that he called the meeting for purpose of voting on the RDO.

[36] I was also satisfied that the balance of convenience favoured the making of an interim order. The unchallenged evidence of Mr May was that the failure of the workers to attend work on 21 November 2016 would impact both its and other contractors ability to do the work in a timely fashion and that this would impact on Broadspectrum’s ability to obtain future work. There were no submissions that the making of such an order would be contrary to the public interest.

Final order

[37] The AMWU’s submission that it is not organising industrial action is not supported by the evidence.

[38] The uncontested evidence was that Mr Mavromatis moved a resolution at the pre-work meeting on 18 November 2016 that employees ban weekend work. There was no evidence that this ban is not ongoing.

[39] It is also clear that Mr Mavromatis organised the meeting in the afternoon on 18 November 2016 for the purpose of organising a ban on working on 21 November 2016 when he knew that the Broadspectrum employees were required to attend work.

[40] I accept the evidence of Mr May that Broadspectrum did not authorise the meeting on the afternoon of 18 November 2016. I also accept that Mr Mavromatis’ evidence that he believed the meeting was authorised by Caltex. However, even if the meeting was authorised, there is nothing in the material that would support a finding that Caltex, Brockmans or Broadspectrum authorised the non attendance at work on 21 November 2016.

[41] I do not accept the submission that because the employees were casual they were not required to attend for work. This submission relied upon a matter before by Senior Deputy Watson. 30 However no decision was issued in that matter and therefore does not support the submission made by the AMWU.

[42] The employees were bound by their employment contract and that contract provided that their hours of work would be in accordance with the Agreement. That contract provided that the employees’ hours of work will be arranged by management.

[43] In accordance with those contracts and the Agreement, the Broadspectrum employees were required to attend work on 21 November 2016. I do not accept the submission that the text message sent to Broadspectrum employees was ambiguous. Broadspectrum made its requirements clear. Employees were expected to be at work. Mr Mavromatis’ conduct was designed to cause, and did cause, the employees not to attend. The fact that Mr Mavromatis himself refers to the day as an RDO, supports the finding that he was organising industrial action. None of the Broadspectrum employees advised their manager that they were exercising their “right” to reject the offer of work on 21 November 2016.

[44] I put to Mr Gianatti that much of the evidence addressed the organisation of industrial action that had been organised. The role of the Commission in these matters is to determine if it should make orders directed at industrial action that is (my emphasis) being organised. Such orders are directed at organising that is occurring rather than organising that had occurred.

[45] However it does appear to me that the AMWU is continuing to organise industrial action. In contrast to the submissions that there was no evidence of any ongoing organisation of industrial action, the evidence before the Commission of the conversation between Mr Mavromatis and Mr May is evidence that Mr Mavromatis intended to continue organising industrial action until such time as the underlying dispute was resolved. Mr Mavromatis did not consider the Broadspectrum Agreement an agreement appropriate for the work. He continued to agitate about this issue. While the AMWU submitted to the contrary it called no evidence in support of those submissions. It appears to me on the evidence that the AMWU organisation of industrial action is ongoing and hence I have the jurisdiction to make the orders.

[46] In those circumstances and given that any industrial action being organised by the AMWU would not be protected industrial action, I issued the orders sought.

DEPUTY PRESIDENT

Appearances:

C. Gianatti for the Applicant.

C. Kelly, by telephone, for the Respondent.

Hearing details:

2016.

Melbourne:

19 November.

Appearances:

C. Gianatti for the Applicant.

No appearance for the Respondent.

Hearing details:

2016.

Melbourne:

21 November.

 1   Exhibit A1

 2   Exhibit A2

 3   Exhibit A3

 4   PR587701

 5   Exhibit A4

 6   Exhibit A5

 7   PR587759

 8   Exhibit A1 at [3]

 9   Broadspectrum (Altona Area) Enterprise Agreement 2012-2014 AE896530

 10   AE413876

 11   Exhibit A1 at [5]

 12   Exhibit A5 at [6]

 13   Ibid at [7]

 14   Ibid at [8]

 15   Exhibit A1 at [13]

 16   Exhibit A2

 17   Exhibit A1 at [17]

 18   Ibid at [18]

 19   Ibid

 20   Ibid

 21   Ibid

 22   Ibid at [21]

 23   Exhibit A5 at [9]-[10]

 24   Exhibit A5 at [11]

 25   Ibid at [12]

 26   Ibid at [13]

 27   Exhibit A3 at [3]-[4]

 28   Exhibit A4

 29   Exhibit A1 at [22]-[24]

 30   Submissions of the Respondent at [3]

Printed by authority of the Commonwealth Government Printer

<Price code C, PR587792>