CFMEU v Oaky Creek Coal Pty Ltd

[2017] FWC 5380

[2017] FWC 5380

The attached document replaces the document previously issued with the above code on 23 October 2017.

Paragraph [14] is amended to insert Mr C Massey of Junior Counsel for the Applicant.

Appearances are amended to reflect the amendment to paragraph [14].

Ricky Plummer
Associate to Deputy President Asbury

Dated 24 October 2017

[2017] FWC 5380

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.229—Bargaining order

Construction, Forestry, Mining and Energy Union

v

Oaky Creek Coal Pty Ltd

(B2017/640)

DEPUTY PRESIDENT ASBURY BRISBANE, 23 OCTOBER 2017

Application for bargaining order – Alleged failure to meet good faith bargaining requirements – Section 228(1)(e) – Alleged capricious or unfair conduct that undermines freedom of association and collective bargaining – Application of employer’s policies to conduct of employees while taking protected industrial action or engaging in union activity – employees not immune from disciplinary action where conduct out of work breaches employer’s policies notwithstanding that they are taking protected industrial action or engaging in union activity – Finding that conduct of employer breached good faith bargaining requirement in s. 228(1)(e) - Bargaining order issued.

1. BACKGROUND

2. The Construction Mining and Energy Union (CFMEU) applies under s. 229 of the Fair Work Act 2009 (the Act) for a bargaining order against Oaky Creek Coal Pty Ltd (OCCPL/the Company). OCCPL, which is part of the Glencore Group of companies, owns and operates the Oaky North Underground Coal Mine (the Mine). The Mine is located outside Tieri, a town servicing the Oaky Creek Coal Complex, comprising the Oaky North Underground Coal Mine, and the Oaky No. 1 Underground Coal Mine and associated coal handling and processing infrastructure. Employees subject of the CFMEU’s application are employed at the Oaky North Underground Coal Mine.

1. The Mine operates 24 hours a day 7 days a week subject to scheduled maintenance and closes for approximately 48 hours per year. On average there are 369 people engaged at the mine each day, comprising 169 production and engineering employees, 104 staff employees and 96 contractor employees. [1] The workforce at the Mine is a combination of “fly in fly out” workers for whom subsidised accommodation is provided and workers who live in the local area. Approximately 60% of workers live in the local area and travel to the Mine by car. A majority of those employees live in houses leased from the Company, which essentially owns all of the houses in Tieri.

1. Tieri was constructed by a previous owner of the Mine specifically for housing mine workers. OCCPL via a series of acquisitions is now responsible for the assets constructed by the former owner the Mine. Infrastructure such as roads, footpaths, easements, water treatment plant, sewerage treatment plant and the library have been handed to local Government. There are also a number of buildings built by the State Government to house teachers, police and ambulance. There is a pub owned and operated privately on land leased from the State Government.[2]

1. CFMEU members constitute all of the production employees at the Mine. They are covered by the Oaky Creek North Mine Enterprise Agreement 2012 which has a nominal expiry date of 1 June 2015. The CFMEU and OCCPL have been bargaining for a replacement enterprise agreement since May 2015. The negotiations have been protracted and bitter. CFMEU members employed by OCCPL, commenced protected industrial action in May 2017 and by 12 June 2017 rolling stoppages were in effect. Employees returned to work for two days on 15 and 16 July 2017 and then took further protected industrial action from 17 to 19 July 2017. On 20 July 2017, OCCPL implemented employer response action and locked employees out. The lockout has remained in effect since 20 July 2017.

1. During periods of industrial action and employer response action, the Mine has continued to operate with staff and employees of contractors performing work that would usually be undertaken by employees of OCCPL who are CFMEU members.

1. Employees have established and maintained a picket line at a number of sites, most recently at the intersection of the Mine Access Road and Grasstrees Road. The stated purpose of the picket line is to protest against staff of OCCPL and contractor employees performing the work of CFMEU members, while they are taking protected industrial action and to advance the CFMEU’s bargaining position. The picket line has been attended by employees, generally during periods when they would otherwise have been rostered to work. Queensland and inter-state Officials of the CFMEU’s Mining and Construction Divisions have also been in attendance at the picket line along with various other persons. A security firm engaged by OCCPL has been documenting conduct on the picket line and filming and photographing participants.

1. In late June 2017, OCCPL put a proposed agreement to employees and sought their endorsement by way of a secret ballot, which was conducted between 12 and 14 July 2017. There is some inconsistency in the evidence about total number of employees who were employed in classifications to be covered by the proposed agreement and who were therefore eligible to participate in the ballot. According to the CFMEU 191 employees voted in the ballot although I note that the evidence of witnesses for OCCPL is that the Company employs less than that number of employees in production and engineering classification. Nothing turns on this point and regardless of the number of employees who voted, it is not in dispute that only two employees voted to approve the agreement proposed by the Company.

1. After the result of the ballot was known, the CFMEU withdrew notices of protected industrial action for 15 and 16 July and employees reported for work at the commencement time of the shifts they would have been rostered to work on but for the fact that they were taking industrial action. Upon their return to work the swipe cards employees usually used to access the mine through a turnstile did not operate and they were met at the entrance to the Mine and directed to remove certain shirts CFMEU branded shirts of a kind which they had previously been permitted to wear in the workplace. Employees were also informed that they would not in future be permitted to wear those shirts. After complying with the direction to change into other shirts, employees were directed to attend a training/briefing session in relation to Glencore policies with respect to: Equal Employment Opportunity, Discrimination, Harassment and Bullying; Performance and Conduct; and Social Media.

1. After completing the training the employees who had returned to work on 15 July were informed that they were surplus to requirements and were sent home, but were paid for those days. Employees who returned to work on 16 July were dealt with in a similar manner but allege that they were also told to remove jackets branded with the name of the CFEMU.

1. From 17 to 19 July 2017 employees resumed protected industrial action. On 18 July OCCPL issued letters to some 21 employees alleging breaches of Glencore Policies relating to conduct engaged in by employees while they were on the picket line. Five employees, including three employees who had been issued with the letters in relation to conduct on the picket line, were also issued with letters alleging breaches of Glencore’s Social Media Policy. One employee who was at work on 15 July was handed the letter addressed to him and the remaining employees received their letters by email sent on 18 July 2017.

2. The alleged misconduct on the picket line set out in the letters relates to a period from 2 July to 6 July 2017 and can be summarised as: employees shouting or chanting the words “grub” or “fucking grub” or “go you grub” or “maggot” at persons exiting the mine (in some cases using a loud hailer) or holding up signs bearing hand drawn pictures of large grubs. One employee is alleged to have used a mobile telephone to film or photograph vehicles leaving the Mine in a way that was alleged to be designed to intimidate the occupants of the vehicles. The alleged breaches of Social Media Policy relate to posts made by employees on a Union Facebook page and the Facebook page of the Daily Mercury (a local newspaper) during a period from 12 May to 11 June 2017.

1. The CFMEU asserts that the issuing of the allegation letters is capricious or unfair conduct that undermines freedom of association and collective bargaining. The CFMEU also asserts that OCCPL has engaged in further conduct of this kind by using contract security personnel to undertake “wholesale and overt surveillance of … CFMEU members in the township of Tieri” and by withdrawing longstanding permission for employees to wear CFMEU clothing on site. The CFMEU seeks Orders to effectively stop the conduct of which it complains and prevent it from occurring again. OCCPL rejects the assertions and maintains that Orders should not be made.

1. Prior to the substantive hearing of the application for bargaining orders, the CFMEU sought an interim order to restrain OCCPL from proceeding with the process foreshadowed in the allegation letters pending the determination of the application. A hearing was held on 3 August 2017. Ultimately it was not necessary to deal with the application for an interim order on the basis that the parties gave undertakings that until the hearing and determination of the matter, respectively:

·   OCCPL would not proceed with the process set down in the allegation letters; and

·   Employees would refrain from engaging in the conduct set out in the allegation letters; and

·   Paid Officials of the CFMEU (both Mining and Construction Divisions) would not use the terms “scab” “grub” or “maggot” at the picket, would remove Scabby the rat from the picket and would remove images of grubs from the picket.

1. A hearing was conducted in Emerald over three days from 5 to 7 September 2017. The CFMEU was represented by Mr R Reitano of Counsel and Mr C Massey of Junior Counsel instructed by Hall Payne Lawyers. OCCPL was represented by Mr C Murdoch SC and Ms G Dann of Counsel instructed by Corrs Chambers Westgarth Lawyers. Both parties were given permission to be legally represented pursuant to s. 596 of the Act on the basis that no issue of fairness arose and the case raised complex legal issues. I was greatly assisted by the manner in which the representatives of the parties conducted their respective cases and dealt with the evidence and cross-examination to allow the hearing to be completed in three days.

1. After reserving the Decision I informed the parties that I would not be in a position to release it in the time frame I had anticipated, prior to commencing a period of pre-planned leave. The parties extended their undertakings accordingly, and I express my appreciation for their assistance in this regard.

1. EVIDENCE

2.1 Witnesses

1. The following persons provided statements in support of the CFMEU’s application:

·   Christopher Iain Brodsky, District Vice President of the CFMEU;[3]

·   Mark Barrass, employee and member of the CFMEU;[4]

·   Rhys O’Donoghue, employee and member of the CFMEU;[5]

·   Kerry Saunders, employee and member of the CFMEU;[6]

·   Michael Murray, employee and member of the CFMEU;[7]

·   Nick Armstrong, employee and member of the CFMEU;[8]

·   Wade Bidgood, employee and member of the CFMEU;[9]

·   Nathan Lake, employee and member of the CFMEU;[10]

·   Ross Clark, employee and member of the Executive of the Oaky North Lodge;[11]

·   Robert Davis, employee and member of the CFMEU;[12]

·   Mitchell Wyatte, employee and Lodge Secretary;[13]

·   Kerrod Slatter, employee and member of the CFMEU;[14]

·   Daniel Curry, employee and member of the CFMEU;[15]

·   Kris-Anne Justine Birch, Solicitor of Hall Payne Lawyers;[16]

·   Lachlan Michael Robert Jarrett, Member of Lodge Executive and Treasurer;[17]

·   Michael Corrie, employee and CFMEU member;[18]

·   Jimmy McConachy, employee and CFMEU member;[19]

·   Thomas Farmer, employee and CFMEU member;[20]

·   Ryan Richardson, employee and CFMEU member;[21]

·   Michael Andolfatto, employee and CFMEU member;[22]

·   Matthew Earl, employee and CFMEU member;[23]

·   Matthew Flavel, employee and CFMEU member;[24]

·   Keith Thompson, employee and CFMEU member;[25]

·   Karl Batey, employee and CFMEU member;[26]

·   Corey James Sullivan, employee and CFMEU member;[27]

·   Adam Matthew Kasprowicz, employee and CFMEU member;[28]

·   Adam Brady, employee and CFMEU member;[29]

·   Jerry Ahern, employee and CFMEU member;[30]

·   Ben Earl, employee and CFMEU member;[31]

·   Danny Allen, employee and President of the CFMEU’s Oaky North Lodge.[32]

·   Randall Meier, employee and CFMEU member;[33]

·   Jeremy Charles Forsyth, employee and CFMEU member;[34]

·   Ian Thomas Morrissey, employee and CFMEU member;[35]

·   Adrian John Woodman, employee and CFMEU member;[36]

·   Leslie Stephen Morrissey, employee and CFMEU member;[37] and

·   Anthony Robert Kirsopp, employee and CFMEU member.[38]

1. Mr Brodsky, Mr Kirsopp, Mr Richardson, Mr Ian Morrissey, Mr Forsyth, Mr Woodman, Mr Leslie Morrissey, Mr Clark, Mr Earl, Mr Brady, Mr Wyatte, Mr Jarrett and Mr Allen were required for cross-examination.

2. Evidence for OCCPL was given by the following persons who were cross-examined:

·   Damien Bernard Wynn, Operations Manager and Site Senior Executive;[39]

·   Scott Dobbie, Production Manager;[40]

·   Michael Benjamin Solomon, Manager Site Services;[41]

·   Michael Craig Williams, Training Co-ordinator;[42] and

·   Martin James Chesworth, Corporate Protection Australia Pty Ltd Security Supervisor.[43]

The evidence included documents, photographs and video footage. I have considered all of the evidence and I have viewed the video footage tendered in the proceedings. I have also considered the written and oral submissions made by the parties.

2.2 Glencore Policies

1. Glencore has the following policies which it asserts are relevant to the conduct of employees on the picket line and in relation to their use of social media in connection with the enterprise bargaining process:

·   Performance and Conduct Policy (the Conduct Policy);[44]

·   Equal Employment Opportunity (EEO) Discrimination, Harassment and Bullying Policy (EEO Policy);[45] and

·   Social Media Policy.[46]

1. Each of the policies states that it does not form part of any employees’ contract of employment. Each of the policies applies to all Australian employees including contractors, subcontractors and temporary staff. Misconduct is defined under each of the policies as including breach of company policy and procedure. The Conduct Policy essentially sets out the process that is to be followed for dealing with allegations of misconduct and references other policies including the EEO Policy.

1. The EEO Policy relevantly states that the Company will not tolerate any form of discrimination, harassment, vilification, victimisation or bullying from any employee and that it applies:

“While at work or sponsored functions, while travelling on work related business, interfacing with local communities, as well as occasions where interactions between parties impact on the workplace or company reputation.”

1. The EEO Policy also states that employees found to have breached the Policy will be subject to further action including disciplinary action up to and including termination of employment. The grounds for discrimination set out in the Policy include industrial activity. Harassment is defined as:

“…any unwelcome behaviour that offends, humiliates or intimidates another person. Harassing behaviour can be but is not limited to:

·Uninvited or unwelcome;

·Intentional or unintentional;

·Conducted by one person or a group of people;

·Directed to one person or a group of people;

·Conduct that creates a hostile work environment for other workplace participants.”

1. General harassment is defined to include:

·   Distribution or display of offensive material; or

·   Behaviours that are generally aggressive, belittling or frightening to another person.

1. The Social Media Policy is stated to apply inside and outside of working hours and regardless of whether social media comment is being made in a personal or professional capacity. Social media is defined to include Facebook and online forums or discussion boards. The Overview to the Social Media Policy states:

“This policy sets the standards to be followed when Company employees use social media, especially if they identify themselves as the Company employees either directly or as part of a user profile or if they can be identified as working for the Company via the content of their postings...

The overriding principle for employees to follow when engaging in social media activity is to act in accordance with the way they would conduct themselves at work. All information published in a social media is discoverable and forever in the public domain”

1. Under the heading “Social Media is public comment” the policy states that:

“Employees should be aware that there is no such thing as a ‘private’ social media site, regardless of the privacy settings. Posting information on-line is no different from publishing in a newspaper or any other media format. If an employee makes any comment about the Company on a social media site they are making a public comment.

For all its benefits, social media also has the capacity to negatively affect an employee’s professional, reputation, the reputation of the Company, an employee’s ability to work with his or her colleagues, and to breach other policies of the Company.

It is important for all employees to be aware that:

·Social media privacy settings are not reliable. It is better to always assume that the person you would least like to see your social media post will see it;

·Employees are personally responsible for material they post online, whether in a private or professional capacity, on company or personal equipment, inside or outside of working hours; and

·Once material is published online it is out of the publisher’s control and will be public for a very long time.”

1. In relation to public comment as a private citizen the Policy states that while employees have the right to enter public debate and comment on political, social or other issues, any comment must be made as a private citizen and be separate from employment with the Company. Comments must not compromise an employee’s ability to perform his or her role in a professional manner. The policy further states that employees should not participate in social media networks in a way that negatively impacts on their effectiveness and productivity at work. Under the heading “Breach of this Policy” the following statement appears:

“Under no circumstances should offensive or derogatory comments be made about the Company, its employees, clients, suppliers, or competitors on the internet. This may amount to cyber-bullying or defamation and could result in disciplinary action.

Circumstances where the online use of social media will result in disciplinary action include but are not limited to:

·Use of internet sites to bully, harass, discriminate or vilify work colleagues …

·Use of internet sites as a forum to publicise workplace disputes or grievances.

…

Any breach of this policy will result in disciplinary action, including but not limited to, issue of a warning, demotion, suspension or termination of employment…”

1. Mr Williams gave evidence that training days are scheduled for employees every eight weeks and include training about human resource management policies and tendered attendance sheets for training on the EEO and Social Media Policies mostly conducted in 2015. Some training records referred to training in 2008 and 2013. In relation to Code of Conduct training, records were tendered, indicating that most of the employees subject of these proceedings attended such training between 2013 and 2017. Mr Williams also said that all of Glencore’s human resource management policies are available via the Glencore intranet. Employees who do not have a computer for use in their daily job are able to use the computers in the training room and a generic username and log-on is provided to employees who do not have personalised computer access details.

1. Under cross-examination, Mr Williams agreed that there is nothing in the training delivered to employees concerning what is expected of them while engaging in periods of industrial action or while they are participating in a picket line or in relation to the right of employees to privacy. Mr Williams maintained that Glencore’s Social Media Policy provides that comments may not be made about work matters even where a Facebook page is private and restricted to a limited number of persons. In this regard, Mr Williams pointed to the statement in the Social Media Policy that privacy settings are not reliable. Mr Williams agreed that Glencore’s policies and procedures did not prevent employees from having a private discussion about any matter in a place such as the pub.

1. The employees who gave evidence for the CFMEU stated that they were not aware that the policies had any application during periods when they were taking protected industrial action. A number of the employees who gave evidence stated that the training they had in the policies prior to 15 and 16 July 2017 involved them reading the policies and viewing overhead slides.

2.3 Conduct on the picket line

1. The evidence about the time frame and locations relating to the picket was not entirely clear. Mr Brodsky tendered a letter from the Central Highlands Regional Council dated 18 May 2017, giving permission to the Union to hold a peaceful protest for several months commencing on that date at a location not specified.[47] Mr Brodsky gave evidence that at 13 June 2017 the “protest” was being conducted at the intersection of Tieri Road and Maywin Drive, a short distance from the Tieri Golf and Bowls Club.[48]

1. According to Mr Wynn, from 14 June 2017 a picket line was set up at the corner of Oaky Creek Mine Access Road and Maywin Drive, one of two access points to the Mine. From 26 June the picket was located on the left hand side of the Road heading towards the Mine although protestors would also stand on the right hand side of the road at various times. The picket was disbanded as a result of a direction from the Council on 21 July and since that time has been relocated. According to a judgement of Jackson J of the Supreme Court of Queensland in proceedings not relevant to this dispute, from 13 August 2017 the picket line has been located at the intersection of Grasstrees Road and the Oaky North Mine Access Road. There is evidence that there was a picket line in place at a location in Maywin Drive in May 2017.

1. Mr Wynn’s evidence was that on 5 May 2017 he engaged Corporate Protection Australia Group Pty Ltd (CPA), a security contractor, which provided a 10 person security team located in Tieri. According to Mr Wynn, from mid-June CPA has provided OCCPL with reports on the activities of persons on the picket line including “on occasion” photographs and video footage. OCCPL has also engaged lawyers from Ashurst to attend at the protest site from 5 July 2017 and to provide reports about their observations. There is also evidence that CPA was engaged in security operations in and around the Mine site and Tieri, well before the middle of June.

1. Mr Wynn’s statement sets out a list of conduct engaged in by various people on the picket line including Queensland officials of the CFMEU Mining Division and the CFMEU Construction Division and persons who have worn clothing indicating that they are from branches of the CFMEU located outside Queensland; and other persons who are not employed by OCCPL. That conduct which is also depicted in photographs and video footage tendered by OCCPL in the hearing includes:

·   On 3 July 2017, two males not employed by OCCPL wearing clothing bearing CFMEU Qld/NT and CFMEU WA logos walking onto OCCPL property and directing abusive language towards security personnel including stating that “you are as shallow as fuck” and one of those persons spitting on the ground;

·   On 3 July 2017, three males not employed by OCCPL approaching a person sitting in a silver car having a cigarette before entering the Mine Site and directing language at the occupant calling him a “maggot”, “fucking scab” and stating that it is a “fucking dog act” going to work, resulting in the occupant of the vehicle filing a report claiming he was intimidated;[49]Mr Smythe, the President of the CFMEU Mining Division shouting the words “fucking grub”, “fucking scab” and “fucking maggot” to passing vehicles and raising the middle finger of his hand (and on occasion both middle fingers simultaneously) ie. “giving the finger” to persons passing the picket line in vehicles;

·   The playing of a song entitled “We’re Not Going to Take It” by the band Twisted Sister on repeat and later a variety of songs including “Working for the Man” “Stronger”; Survivor” and “Power and Passion”.

·   Shouting a range of offensive comments including “grub”, “fucking grub”, “scab”, “fucking scab”, “once a scab always a scab”, “fucking dogs”, “cockhead”, “dickhead”, “prick”, “cunt”, “maggot”, “go home you grub”, “how do you sleep at night” and “aren’t you ashamed”, “what does your family think of you”; “parasite”; and “go hang yourself” to drivers of vehicles;

·   Directing abuse towards the General Manager of the Mine;

·   Shining lights into the security hut on OCCPL property;

·   Blowing whistles and making barking and pig squealing noises;

·   Driving cars slowly so as to obstruct cars leaving the Mine Access Road forcing them to sit at a stop sign for an excessive period while yelling, whistle blowing, chanting and shouting continued.

·   Shouting of slogans such as: “What do we do when we’re under attack? Stand Up. Fight Back”; “Union. Power. Union. Power.”; “Sell your soul, cut some coal”; “One day longer, one day stronger”; “dib dib dob dob, cross the line steal our jobs; “Cross the line ruin the mine”; “we are the Union, mighty mighty Union, the ass kicking union”; and “no guts no spine never cross a picket line”;

·   Spray painting a road to the Mine with the words “Scabs turn right” and painting the name of a particular contractor above the word “scabs” on a number of road signs in proximity to the Mine;

·   Holding up signs with the letters “S”, “H”, “A”, “M” and “E” on them;

·   The presence of a large inflatable rat at the picket line known as “Scabby the rat” which was removed at some point but was noted by Mr Chesworth to be at the Girl Guide Hut at Tieri on 8 August 2017;[50]

·   Engaging in verbal abuse of security personnel including shining lights into the hut located on the Mine site from which they were working;

·   Calling out the names of particular individuals who drove towards the mine and directing insults towards those persons.

1. Mr Wynn states that most of the behaviour set out above and summarised in his statement, is not able to be attributed to individuals, but where it could be, the employees concerned were identified for the purpose of considering whether they had breached Glencore policies. In relation to general behaviour at the Mine, Mr Wynn accepts that working there is rigorous and demanding and that there is robust discussion among employees, including management. While swearing is not uncommon at the Mine, there is not a culture at the Mine that tolerates swearing or use of offensive language that is targeted at individuals or groups. Mr Wynn has not heard the terms “grub” or “scab” used other than in the context of employees or contractors crossing a picket line. Mr Wynn also said that he is aware that a number of statements of employees in these proceedings make allegations that persons passing through the picket, in particular employees of contractors working at the Mine during the lockout and protected industrial action had provoked those on the picket line. Mr Wynn said that he has not witnessed any of the behaviour alleged in those statements and cannot say one way or another whether it occurred. Mr Wynn also said that no employee has made a complaint about alleged interference by contractors at or around the picket.

1. Mr Wynn gave evidence about a number of safety concerns relating to the conduct of those on the picket line including protestors stepping onto Grasstree Road and presenting a hazard to road users because of foliage and low visibility in the morning and at dusk. According to Mr Wynn protestors have also been using their vehicles to impede the vehicles of persons wishing to enter and exit the Mine. These matters have been raised with the Police and the local Council. Similar concerns have also been raised at a meeting of the Mine’s Health Safety and Environment Committee.

1. A further safety incident about which Mr Wynn gave evidence involved a fire at the picket line on 5 July 2017. Mr Wynn states that the fire occurred when a generator at the picket line caught fire. Requests were made by those engaging in the picket for fire extinguishers and emergency services support which were supplied by OCCPL. No procedures were in place to manage the risk of fire at the picket. A report provided by a solicitor from Ashurst who was at the scene indicates that the fire commenced at around 14:10 and that at 14:15 persons from the picket line approached security and asked for assistance. Security personnel provided fire extinguishers and accompanied those persons back to the site of the fire. The area was still smouldering at 14:37 and the Fire Brigade arrived and extinguished the fire by 14:50.

1. Later, the solicitor from Ashurst observed two signs that had been made up by protestors stating respectively: “Fire Warden Needed; Apply Within” and “Fire training here every Wednesday”.[51] Video footage of the fire was tendered by Mr Wynn. It shows persons on the picket line breaking branches from trees and using those branches in an attempt to extinguish the fire. The footage does not show any assistance being provided by security personnel. The persons who filmed the footage are heard laughing in the background apparently at the difficulties being experienced by the persons on the picket line attempting to put out the fire.

2. Under cross-examination Mr Wynn agreed that the picket started in May 2017 at a location on Maywin Drive and had moved to the front gate of the operations by mid-June 2017 when it had ramped up in terms of numbers. According to Mr Wynn, behaviour on the picket line had become unacceptable by the end of June. Mr Wynn also agreed that the industrial action taken by employees became more prolonged around the end of the first week in June. In response to a question about when reports of the conduct set out in his statement were first received, Mr Wynn said that there were reports of similar conduct before 3 July 2017. Mr Wynn also said that the behaviour on the picket line was unacceptable from the start and that the word “grub” had been commonly used on the picket line from the time it commenced.[52] In response to a question as to whether anything had been done about conduct on the picket line prior to 3 July 2017 Mr Wynn said: “No, because we could not identify individuals.” Mr Wynn also agreed that between 3 and 14 July the Company took no action in relation to the conduct of employees on the picket line.

1. Mr Wynn agreed that he could have telephoned Mr Allen the President of the Lodge at the time the conduct was occurring to inform him that the Company had an issue with it, but said that he did not do this because Mr Allen was on the picket line and Mr Wynn assumed that Mr Allen accepted the behaviour. In response to a question about why he did not ring Mr Brodsky, with whom he had a “gentleman’s agreement” in relation to discussing issues, Mr Wynn said that Mr Brodsky was on the picket line with Mr Smythe when the unacceptable behaviour was occurring and that both Mr Brodsky and Mr Smythe appeared to be condoning it. Mr Wynn later agreed that it would not be unreasonable for him to ring Mr Brodsky notwithstanding Mr Brodsky’s role in the picket and that it could be seen as reasonable for him to do so. Mr Wynn further agreed that he did not need to be able to identify individuals engaging in the conduct to make such a call,[53] and that there was no information in his statement that Mr Brodsky had engaged in anything that would be regarded by Mr Wynn as bad behaviour at any time including the period up to 11 July.[54]

1. Mr Wynn also agreed that the decision by the Company to put its proposed agreement out to a ballot of employees was made in the last week of June and the ballot was conducted from 12 – 14 July 2017. Mr Wynn started to accumulate information about the conduct on the picket line after 3 July 2017, but agreed that the same conduct had occurred before that date. Mr Wynn agreed that the conduct he regarded as bad behaviour engaged in by employees on the picket line, was almost overwhelmingly calling someone a “fucking grub” or a “maggot” and while there were other matters, this was the substance of the conduct dealt with in the allegation letters.[55]

1. Mr Dobbie also gave evidence about conduct on the picket line. Mr Dobbie lives in Tieri and drives to work each day. As he drives past the picket line he has had abused yelled at his vehicle, whistles blown and signs about Glencore waved. Mr Dobbie has also received complaints from staff and contractors about conduct from persons on the picket line including incidents where a throat cutting motion was made; a staff member was told that he “is dead”; and a staff member complained that a convoy of vehicles which had slowed his car, had sped up when he overtook it so that he could not get back onto the right side of the road, while approaching the crest of a hill.

1. Mr Dobbie also said that the picketers became more vocal and threatening on 3 July 2017 when three males appeared on the picket line who were not employees of OCCPL or locals, and approached the driver of a silver car while he was smoking outside the Mine. Mr Dobbie witnessed the incident live on a camera located at the entrance to the Mine and stated that it was apparent that the three males were standing close to the car and abusing the driver and one male pointed aggressively at the driver.

1. Mr Dobbie agreed under cross-examination that more sustained industrial action occurred from around 3 July 2017 and that there was a distinct change in the conduct on the picket line from that date. In response to the proposition that the picket line ramped up from the middle of June, Mr Dobbie said that he did not have a view about that as he drove through the picket line every day and had focused on it at the start because “it was more personal at the start” but had changed since then.[56]

1. Mr Dobbie also said that he understands that the CFMEU and its members are upset about contractors and staff doing their work and undermining their right to bargain and that part of the function of the picket line was to demonstrate disapproval of this to staff and contractors. Mr Dobbie agreed that there is reference to the negotiating position of Glencore on the signs being used by the persons on the picket line. Mr Dobbie accepted the proposition that the employees have a right to disapprove of these matters and to show their disapproval, but said that his issue was with the manner in which that disapproval was being expressed,[57] although he understood the “plight” of those on the picket line.[58]

1. In response to a proposition that the first time he had heard the word “grub” being used on the picket line was 3 July 2017, Mr Dobbie said that he was not saying that this was the first time he heard that term and that it was “early on” before 3 July when he heard it. At this point Mr Dobbie said that he changed his approach to going through the picket line by turning up his radio and leaving his window up to block out the picket line. Mr Dobbie also agreed that he did not do anything about the use of the term “grub” when he heard it and just ignored it as he was not personally offended or intimidated.[59] Mr Dobbie agreed that in his 23 years in the mining industry he has heard altercations at the pit where worse language has been used. Further, Mr Dobbie agreed that he knew that the use of the word “grub” was serious when he reviewed the allegations about the conduct of those on the picket line (on or around 11 July 2017) but did not think the matter was serious at the point the term was directed to him. Mr Dobbie did not do anything about this matter initially because no-one had made a complaint to him.

1. Mr Brodsky’s evidence about the picket line is that it is designed to gain support and attention for the plight of the striking workers and to further their bargaining position. As organiser of the picket line the CFMEU has laid the ground rules including that it is peaceful at all times and that participants ensure that their conduct is appropriate. Members have been advised not to obstruct traffic, not to use laser lights, not to engage in violence and not to shine torches in people’s eyes. Mr Brodsky maintains that these instructions have been followed. Most importantly, members have been instructed not to obstruct access to the Mine for contractors and staff and not to attack those individuals for attending the Mine. Mr Brodsky has stated to members that they should make their feelings known about the fact that the contractors are taking their jobs.

2. The picket line is manned by members during the hours they would otherwise have worked a shift but for the fact that they are engaging in protected industrial action. The CFMEU has informed members that if they are going to attend the picket line they should do so while they are within the hours of the protected industrial action and “have all of the protections which the Act gives them in that regard”. Mr Brodsky said that the conduct at the picket line has been virtually unchanged throughout and has not escalated. While there have been a few minor flashpoints, these have been brief and resulted from provocation of CFMEU members by contractors who are doing the jobs of members.

1. Mr Brodsky also said that the Company has not complained to the CFMEU about the conduct on the picket line. Previously, Mr Brodsky and Mr Wynn have had a “gentlemen’s agreement” whereby he contacts Mr Brodsky about issues of concern before they escalate. Mr Wynn has not made contact about this issue and has not raised it in meetings which he has held with Mr Brodsky on several occasions since the picket was established. The Company has not complained about conduct on the picket line in any bargaining meetings. Mr Brodsky also said that had the Company contacted him about its concerns he would have relayed those concerns to members and the CFMEU would have advised members to cease using the term “grub” if it was of concern to the Company as there are plenty of other ways to protest and it is not worth fighting about.

1. Mr Brodsky was cross-examined about the use of term “grub” on the picket line and agreed that it was used to insult people, to describe people who have no principles and to convey that those attending work to perform work that would otherwise be performed by CFMEU members are low and contemptible people. Mr Brodsky also agreed that in calling these people grubs, the picketers want to send them a message that their conduct will not be forgotten. Further, Mr Brodsky said that the term “grub” is being used because people can’t say “scab” anymore.[60]

1. In their statements the employees alleged to have engaged in misconduct on the picket line, variously said that:

·   they had generally attended the picket line at times when they would otherwise have been rostered to work;

·   they had been told by the CFMEU not to use the word “scab”, not to abuse anyone, stay disciplined and stay behind barriers

·   they had been told by the Queensland Police not to swear;

·   at one point Police issued an instruction that picketers should not blow whistles but this was withdrawn;

·   the word “grub” had been used as part of a chant rather than being directed at anyone;

·   the signs used by picketers were provided by the CFMEU and the sign with the grub depicted on it was drawn by hand and was drawn by someone from the CFMEU;

·   they did not know that the term “grub” would be viewed as abusive or offensive;

·   they had received no direction from the Company in relation to conduct on the picket line and were not aware that the Company had any issue with that conduct before receiving the allegation letters.

1. Mr Wyatte said that if the Company had raised a concern about the word “grub” and said that they were considering a disciplinary process, the Lodge would have advised members not to use that term.[61] Mr Bidgood said that he would not have used the term “grub” if the Company had made its views known earlier, as there are other ways to protest.[62] Mr Clark said that CFMEU members followed the lead of the Lodge executive as they had never been involved in a picket before.[63]

1. The employees who gave evidence were cross-examined about the picket line conduct and in particular the motive for use of the term “grub”. Mr Allen said that he would regard a scab as a low individual and with contempt. He agreed that the description of someone as a scab sticks with the person for the rest of their life. According to Mr Allen, the word “grub” is used because picketers cannot use the word “scab”.[64] Mr Clark also agreed that by calling someone a “grub” you are intending to convey the same message as if you referred to them as a “scab”. Contractors who cross the picket line are scabs, low individuals and have no principles. They are people he would hold in contempt. Mr Clark also said that those on the picket wanted to send a message by using the term “grub”.[65]

1. Mr Wyatte said that he had been told that the term “scab” is off limits. He understood “scab” to mean a strike breaker or someone crossing a picket line. Someone who has acted as a scab, by taking some else’s job, is regarded as a scab for life. Mr Wyatte agreed that the reason such people are being called “grubs” is because people on the picket can’t say the word “scab” anymore. In relation to having engaged in a chant: “Jimmy, Jimmy, Jimmy, grub, grub, grub” Mr Wyatte agreed that it was focused on a particular Mine Deputy who was driving the “shearer, shearer, shearer” while CFMEU members were on strike and that the chant was targeting that person and singling him out.[66] Mr Wyatte also said that if the footage was viewed, he would be observed to have been waving and smiling at the car when it went past demonstrating that the chant was meant in a light hearted manner.

1. Mr Jarrett knew that there had been a case when some had gotten into trouble for using the word “scab”. The use of that word is discouraged because the CFMEU does not want people to get into trouble; it does not reflect a change in philosophy about the concept of a scab. Mr Jarrett would regard a person who crossed a picket line as a scab but he would not call them that. Further Mr Jarrett would hold someone who crossed a picket line in contempt and as a pretty low sort of character. Because those on the picket line have been told that they can’t use the word “scab” they use the word “grub” and the definition does not change, only the word. Mr Jarrett was also asked about chanting and said that while chants had been used throughout, but: “Not all the time, we don’t have set chant hours. Like, if someone has a chant, the boys will chip in.”[67] Employees also gave evidence alleging that staff and employees of contractors had provoked them as they went through the picket line.

2.4 The allegation letters

2.4.1 Process and timing of allegation letters

1. Mr Wynn said that notwithstanding the difficulty of attributing behaviour on the picket line to particular employees, he has identified some behaviour that can be so attributed. Mr Wynn has also been provided with copies of screen shots of social media posts by various employees and CFMEU Officials concerning, among other things, behaviour on the picket. On or about 11 July 2017, Mr Wynn requested Ms Cody from Human Resources to view the video footage of the picket line in light of relevant Glencore policy and if justified, prepare letters about any conduct that could be said to be inconsistent with that policy.

1. Mr Wynn requested that the draft letters be provided to Mr Dobbie along with relevant video footage to allow Mr Dobbie to satisfy himself about the matters in the letters, settle them, get them out and otherwise run the investigative and disciplinary processes should this be necessary. At the same time, Mr Wynn collated social media posts about which he was concerned and arranged for draft letters to be prepared to employees about those matters also for the consideration of Mr Dobbie. Mr Wynn involved Mr Dobbie on the basis that he thought it appropriate that another officer within Glencore progress these matters with a view to Mr Wynn being the decision maker.

1. Mr Wynn said that he made the decision to progress the allegation letters because he was concerned about the behaviour on the picket and related social media posts. Specifically Mr Wynn was concerned that the behaviour had been going on for an extended period of time and was not showing signs of getting better and that this was having a detrimental effect on other employees and contractors at the Mine. Mr Wynn was also concerned about health and safety implications of the conduct and most significantly that it was contrary to Company policy. Mr Wynn said that the investigative process is not complete and has been deferred due to these proceedings. No decisions have been made in respect of the letters in terms of substantiation of allegations or outcomes.

1. Mr Dobbie said that he was asked by Ms Cody to review the material in relation to conduct on the picket line around 11 July 2017 when he was in Brisbane. Mr Dobbie told Ms Cody that he would review the material when he returned to the Mine site on 13 July and make a decision about it. Mr Dobbie agreed that Ms Cody stated that the material he was requested to review was video footage and that she was preparing allegation letters. Mr Dobbie also said that generally allegation letters in relation to discipline cases come from him, so that Mr Wynn is a step away and can review any disputes on site.

1. After viewing the video footage on 13 July, Mr Dobbie said that he instructed Ms Cody to prepare the allegation letters. Mr Dobbie also said that he reviewed the policies and satisfied himself that there were breaches.[68] The proposition was put to Mr Dobbie in cross-examination that he had known about the fact that employees on the picket line were using the term “grub” well before he caused the allegation letters to be sent to them, and that if this was a breach at the point the letters were sent it was also a breach at the earlier time. In response, Mr Dobbie said that he had not seen the videos at the earlier time and that until he saw the videos he had only “assumed” that the term “grub” was being used generally. Mr Dobbie accepted that he wrote the allegation letters on 13 July 2017, but rejected the proposition that the decision to do so had anything to do with the fact that by that date the ballot for approval of the Company’s proposed agreement was looking pretty dire. Mr Dobbie agreed that he knew by 13 July 2017 that things were pretty dire for the ballot and that he had this knowledge at the time the letters were written.[69] Mr Dobbie had the following exchanges with Counsel for the CFMEU:

[PN1550] The process that you started was a disciplinary process, the one thing that you knew at the time from the videos because it’s in your letters is that you had names and people saying the word “grub”, correct?  ‑Yes.

[PN1551] You were telling people that that was a) misconduct, correct?  ‑Yes.

[PN1552] And b) a serious matter, correct?  ‑Yes.

[PN1553] The first time, the first time that you did that was the day after the ballot closed, correct?  ‑Yes.

1. Mr Dobbie said that the first step the process of raising an allegation, whether it goes down a path of disciplinary action or not, is to have a discussion with the employee concerned. Mr Dobbie maintained that there was no opportunity to do this with the majority of employees who received the allegation letters, because they were not at work at the time the letters were prepared. There was a discussion with one of the employees – Mr Saunders – on 15 July 2017 when some employees returned to work. Mr Saunders was the only employee in the group who returned on 15 July who was to receive a letter. There was also a discussion with one of two employees who turned up for the night shift on that date, who were also to receive allegation letters, but were not given those letters at the time. In response to the proposition that the letters could have been given to employees without talking to them, Mr Dobbie said that this is not the preferred approach but that it was eventually adopted because the employees were on strike. Mr Dobbie had the following exchange with Counsel for the CFMEU in relation to the timing of the allegation letters:

[PN1584] Can I deal with - so I want to make it very clear to you, that the suggestion is that things have happened in the preceding or since the middle of June in terms of people being called grubs and people holding grub signs, and the other expression, maggot and fucking grub. All of those things have been happening since mid-June and you knew or reasonably deduced that they were happening since mid-June and the first time that you did something about it in terms of telling people, that is telling the people that that was an allegation of misconduct was after 14 July. That’s correct, isn’t it?  ‑Yes, that’s correct.

1. Mr Dobbie agreed that he proceeded down a disciplinary path by giving allegation letters to employees without having received a formal complaint about their conduct and that this was not the normal course of events. Mr Dobbie said that he is aware that CFMEU members have made complaints about the behaviour of contractors in relation to the picket line but he has not proceeded to investigate these complaints because they are not formalised. Mr Dobbie denied that he is treating CFMEU members differently by not dealing with their issues in the absence of a formal complaint on the one hand while instituting disciplinary processes against them without having formal complaints on the other hand.

1. Mr Wynn rejected the proposition put to him in cross-examination that the allegation letters could have been sent at an earlier date without the need to sit down with employees stating that this is not the normal practice of the Company. Mr Wynn also rejected the proposition that the Company had waited to issue the letters to let employees know that they would be in trouble if they did what the CFMEU told them to do. Mr Wynn had the following exchange with Counsel for the CFMEU:

[PN2795] In circumstances where you had held up your sleeve the whole time, the question of disciplining or starting a disciplinary process in respect of words that were spoken - grub, fucking grub or maggot, since the middle of June?  ‑Again, activities on the picket line or social media were taking place and the time period that elapsed was just the time taken to start the investigation to seek advice. But again, the first available opportunity they came back to work on the 15th and 16th, we started the process of issuing the letters.

1. Mr Wynn agreed that he had not commenced to seek advice about the conduct on the picket line until 11 July and that he knew that people were being called “grubs” by persons on the picket line on or around 15 June.[70] Mr Wynn also agreed that no-one had made a complaint or claimed to have been offended about the use of the term “grub” by employees on the picket line including those to whom allegation letters had been sent.[71]

1. During cross-examination, Mr Wynn and Mr Dobbie were shown an email dated Wednesday 12 July and time stamped 08:47, from Mr Nicholls to Mr Cribb, attaching a draft letter in relation to the conduct of employees on the picket line in the following terms:

Protest at entrance to Oaky North – confirmation of expectations

As you will be aware, a protest has been established at Grasstrees Road, near the entrance to the Oaky North mine.

Oaky Creek Coal recognises the rights of employees to take protected industrial action, to participate in lawful industrial activity, and to engage in peaceful protest.

However, employees who participate in such action and activity remain required to comply with the Code of Conduct and to act in a manner that is consistent with the value and behaviours promoted by Oaky Creek Coal.

Conduct which is derogatory, intimidating or offensive, is inconsistent with the Code of Conduct and Oaky Creek’s value and is not acceptable.

For the avoidance of doubt, employees who are identified in engaging in these behaviours (including while protesting), may be subject to disciplinary action, which may include dismissal. These behaviours include, but are not limited to:

·   Directing comments/insults/words towards workers and visitors to the mine such as “scab”, “grub”, “maggot”, “dog”, “cunt”, “fuckwit”, “asshole” or other derogatory terms;

·   Simulating masturbation as vehicles pass the protest;

·   Making a throat cutting gesture towards occupants of vehicles entering/exiting the mine;

·   Taking photos of vehicles and/or their occupants entering or exiting the mine;

·   Using a motor vehicle in a manner which hinders, obstructs, impedes or delays, persons from entering or exiting the mine;

·   Engaging in conduct which creates a risk to the health and safety of another employee or member of the public;

·   Engaging in conduct which could be considered intimidation or threatening.

If you have any question in relation to this letter or Oaky Creek Coal’s expectations, please don’t hesitate to contact me.”[72]

1. The covering email states:

“Ian

We will be writing to employees regarding the picket line behaviour.

Darren.”[73]

1. Mr Wynn said that they had not seen the email or the proposed letter before it was shown to them in these proceedings, but was aware of the words in the letter because they were part of a script he read to employees on 15 July when they returned to work. Mr Wynn also said that he could not recall a proposal to send a letter in the terms of the draft attached to the email or whether he had a conversation with Mr Cribb or Mr Nicholls before the allegation letters were sent to employees. Mr Wynn maintained that it was his decision to send the allegation letters to employees. Mr Wynn also said that he could not answer questions about the fact that two more senior managers had conducted an email exchange in which sending a reminder letter to employees about the same matters was discussed, a few days prior to the letters sent by Mr Wynn. Mr Wynn rejected the proposition that when he caused the allegation letters to be sent, he was unhappy about the rejection of the Company’s proposed agreement, stating that this did not come into his decision about the allegation letters.

1. Mr Wynn also said that he was not surprised that employees had rejected the Company’s proposed agreement. The Company put its proposal to employees at the suggestion of Mr Brodsky, who had stated that the Company should take its position to employees on the basis that it was the best offer the Company would make. After the Company decided to put its proposed agreement to a ballot of employees, the CFMEU conducted a “national day” in Tieri where they told employees to vote against the proposal. Mr Wynn agreed that at the time he was involved in the drafting of the allegation letters, he knew that the Company’s proposal was going to be rejected by employees.

1. Mr Dobbie, in cross-examination about the email of 12 July 2017 and the draft letter appended to it, agreed that the draft letter differed from those he had sent to employees on 14 July 2017 but maintained that he had not previously seen the draft letter. Mr Dobbie said that he did not see the allegation letters until Friday 14 July 2017 and that he was not aware that there was another draft version that was to be sent out under the signature of Mr Wynn and could not provide an explanation in relation to that document.[74] Mr Dobbie also agreed that at the time Ms Cody drafted the allegation letters he had not received any formal complaints from employees about conduct on the picket line or received anything from anybody that suggested they were intimidated about being called a grub.[75]

1. Further, Mr Dobbie agreed that no one had complained about being harassed by the conduct on the picket line. Mr Dobbie also agreed that he had no basis for forming the view, having seen the video footage, that anyone had been intimidated by being called a grub. In re-examination and further cross-examination, Mr Dobbie said that he was mistaken with respect to this evidence and that he had received a complaint on 11 July 2017 about a “throat cutting gesture” being made by a protestor on the picket line and was not sure about the timing of the other complaints.

1. The allegation letters in relation to the social media posts were drafted on 13 June 2017 and were not actioned until 18 July 2017 when they were emailed to employees along with the letters in relation to conduct on the picket line. An email was shown to Mr Wynn in cross-examination dated 30 June 2017 from Ms Cody, attaching draft allegation letters in relation to the social media conduct dated 13 June 2017. Unlike the first drafts of the allegation letters in relation to picket line conduct, the drafts in relation to social media conduct are in essentially the same terms as the versions that were sent to employees on 18 July 2017.

2.4.2 Allegation letters in relation to conduct on the picket line

1. Allegation letters in relation to the conduct on the picket line were sent to Mr Ahern, Mr Allen, Mr Andolfetto, Mr Barass, Mr Batey, Mr Bidgood, Mr Clark, Mr Corrie, Mr Curry, Mr Davis, Mr Flavel, Mr Farmer, Mr Jarrett, Mr Kaspowicz, Mr Murray, Mr O’Donoghue, Mr Saunders, Mr Slatter, Mr Sullivan, Mr Thompson and Mr Wyatte. Those letters are headed: “Alleged misconduct and breach of Glencore’s EEO, Discrimination, Harassment & Bullying Policy and Performance and Conduct Policy”. The letters state that Mr Dobbie has become aware of what appears to be conduct which may be in breach of the relevant policy. The letters also state that the Company recognises the rights of employees to take protected industrial action, to participate in lawful industrial activity and engage in peaceful protest. The letters then go on to state that:

“However, employees who participate in such action and activity remain required to comply with the EEO Policy, and to act in a manner that is consistent with the values and behaviours promoted by the Company, including treating everyone with respect and courtesy.

I have been provided with footage taken by the Company’s security monitoring the protest. Having reviewed the footage, I am concerned that you have acted in a manner which is inconsistent with Glencore Values and may be in breach of the EEO Policy and Conduct Policy.”

1. The allegation letters in relation to the conduct on the picket line then set out the dates on which the conduct is said to have occurred and the nature of the conduct and state that relevant footage or photographs are enclosed. Variously the letters assert that on dates between 2 and 6 July 2017, the footage appears to show employees engaging in one or more of the following forms of conduct:

·   Yelling at the occupant of a vehicle exiting the Mine and referring to the person as a “grub” or a “fucking grub” or a “maggot” or yelling “go you grub”;

·   Holding up a sign with a drawing of a large grub on it; and/or

·   Using a mobile telephone to film/photograph vehicles and their occupants leaving the Mine in a manner that was clearly designed to be intimidating to the occupants of the vehicle.

1. The letters state that the relevant conduct is:

·   Inconsistent with the Company’s values, disrespectful and offensive;

·   Likely to be intimidatory; and

·   Likely to be in breach of section 5.4 of the EEO Policy in that such behaviour may constitute harassment.

1. The letters conclude with the following paragraphs:

“I am satisfied that your apparent conduct at the protest has sufficient connection to your work, given that your actions were directed at persons passing through the protest when exiting the mine.

Your conduct if proven, is serious. Such conduct would be inconsistent with the values of the Company and the culture we wish to nurture at Oaky North. Further it may constitute a breach of the Company’s policies as outlined above and may result in disciplinary action being taken against you…

Before concluding my investigation in relation to these matters I would like to give you the opportunity to respond to these allegations.

You are directed to provide a written response to these allegations by 4.00 pm on Thursday 20 July 2017.

If after concluding my investigation I consider that you have misconducted yourself, I will provide you with an opportunity to respond prior to imposing any disciplinary outcome.”

2.4.3 Allegation letters in relation to social media activities

1. The allegations with respect to activities of employees on social media concern five employees: Mr Allen, Mr Armstrong, Mr Jarrett, Mr McConachy and Mr Lake. The letters in relation to the alleged breaches of the Social Media Policy deal with two categories of alleged breaches. Mr Allen, Mr Armstrong, Mr Jarrett and Mr McConachy are alleged to have breached the Social Media Policy by posting comments on a Facebook page established and operated by a group called “Oaky North CFMEU Lodge”. Their evidence is that they believed that this Facebook page was private and could only be accessed by Lodge members. Mr Lake is alleged to have breached the Social Media Policy by posting a comment on a Facebook page established and operated by a local newspaper the Daily Mercury, in response to a link to an article in the newspaper about workers being locked out of the Mine.

1. The alleged breach of the Social Media Policy on the part of Mr Allen is that on 12 May 2017, he posted a comment on the Oaky North CFMEU Lodge Facebook page in the following terms:

“Boys as you will see the notice board has been removed from the bathhouse and place outside in the weather. Darren Nicholls has removed the Union notices from it and place training expressions of interest on there. I think it’s great but would like too see all names removed until after our dispute is settled and we have a decent EA signed sealed and delivered. All he is doing is trying to divide the Lodge by buttering up a few blokes and all training will be done on O/T you can guarantee it too try drive a wedge in there or get you to fuck up the protected action. If you have any questions please call me boys but don’t buy into this cunts politics and used car salesman routine. In Unity Dan.”

1. It is further alleged that Mr Allen breached the Social Media Policy by making a post on the CFMEU Oaky North Lodge Facebook page on 29 May 2017 which contains a link to an ABC online news site and states:

“Check out this shit boys and too the dog who likes to show our posts to big mouths I know who you are and go for your life show em this one you maggot.”

1. It is alleged that Mr Armstrong breached the Social Media Policy by posting a comment “Lynching in order” under Mr Allen’s post. Mr Jarrett is alleged to have breached the Social Media Policy by posting the following comment on the CFMEU Oaky North Lodge Facebook page on 12 May 2017:

“Lads I want to make something really clear, Darren Nicholls is not our friend. The hand shakes on the go line, telling blokes ‘great job, have a shower and go home early’ and putting expression out for deputies courses is all part of his act. This man is cunning and manipulative. He is the reason we are on protected action. He gave us Mark Kirsten, pay cuts, approved not paying process crew for public holidays, threats against blokes who supported black lung, unwarranted discipline action, didn’t approve transfers from 1 to North and the list goes on Management have started trying to divide the lodge with rumours and it is imperative that we stick together. You boys trusted us on black lung, we have fought them with your disputes and now you need to trust us with the decisions we make while on protected action. Every decision has the interest of the rank and file at Oaky North and has the full support of the CFMEU State Officials. If anyone has any issues please contact an executive. Be safe and smart boys.

1. The allegation that Mr McConachy breached the Social Media Policy is based on a post placed on the Oaky North Lodge Facebook page by Mr McConachy commenting on Mr Jarret’s post in the following terms: “That’s hilarious. I think it goes to show what lengths this fuckwit is gonna take.” The comment is alleged to be in relation to Mr Nicholls who is mentioned in Mr Jarrett’s post. The allegation with respect to Mr Lake’s alleged breach of the Social Media Policy is that on 11 June 2017, he commented on a Daily Mercury Facebook page with a link to an article about the lockout at the Mine, by posting a cartoon type image of a figure holding a pick standing over another person, with the words: “How to pick a scab. Step 1” together with a comment by Mr Lake: “Quite a few in these comments that need this.”

1. In his statement, Mr Lake admitted making the post on 11 June 2017. Mr Lake said that he was not aware that it breached the Social Media Policy and still does not understand how this can be the case when the post says nothing about Oaky North and as far as he knows no one from the Mine participated in the debate. Mr Lake points to the fact that many of the posts in the debate were critical of the striking miners and some even called for the workforce to be sacked and replaced. The comment was intended in jest and Mr Lake does not advocate violence against anyone but thought the graphic was an amusing way of signalling his unhappiness with people on the forum advocating against the striking miners.

1. Mr Jarrett said in his statement that he is not familiar with Glencore’s Social Media Policy. Mr Jarrett admits that he posted the comments about Mr Nicholls on the CFMEU Facebook page to warn the members in his role as their representative, about his concerns with Mr Nicholls. Mr Allen also admits that he posted comments about Mr Nicholls on the CFMEU Facebook page. Mr Allen said that he did so in his role as Union representative to alert members to what he considered to be a risk associated with Mr Nicholls and consistent with what he was elected to do and what he does on a regular basis at meetings. Mr Allen said that he posted the comment on the CFMEU Facebook page believing that it was private and it would be safe to do so. The second post was also made by Mr Allen on the basis that it was posted on a private page. Mr Allen states that he was not trying to threaten or intimidate anyone and he did not know who had leaked the contents of the page. Mr Allen was trying to persuade that person to stop. Mr Allen does not regard the word “maggot” as offensive or intimidating and has used it over the years without being chipped about it by the Company. A number of witnesses for the CFMEU also alleged that Mr Nicholls had used foul language on occasion directed at employees. Mr Wyatte said that when there was a brief stoppage of work in November 2016 in relation to concerns about Black Lung disease, Mr Nicholls yelled at employees as follows:

“You cunts have two fucking choices. You can get back in those vehicles and fuck off back underground or can go through the bath house and out the gate and see what happens. If you leave I will take you to Court. You have five fucking minutes to decide.”[76]

1. Mr Wyatte maintained under cross-examination that this was what Mr Nicholls said to employees but agreed that on the day the comments were allegedly made, employees had stopped work suddenly before the end of a shift to attend a meeting about black lung that was to be held in Tieri. Mr Wyatte further agreed that as a result of the stoppage the Commission issued orders against the employees which were consented to by the CFMEU.[77] Mr Wynn said that Mr Nicholls did not swear at employees in the manner alleged but told them they had two choices – to get into the vehicles and return to work or go through the bathhouse and out the gate, in which case Glencore would pursue this matter with the Fair Work Commission. Mr Nicholls also told the employees they had five minutes to decide what they would do.[78]

1. Mr Armstrong admits to making the post about lynching on the CFMEU Facebook page. The comment was intended to respond to the previous comment of another employee. After Mr Lake made the post another employee told him that a colleague was offended by the reference in the post to lynching. Mr Armstrong said that he immediately deleted the post and apologised. Mr Armstrong tendered a copy of the apology message he sent to the colleague. Mr Armstrong also said that the post was visible for a period of approximately two hours and he was not taking protected industrial action when he made the post.

2. Mr Jarret said in cross-examination that his post was referring to conduct engaged in by Mr Nicholls in the workplace and he wanted to convey to his colleagues that Mr Nicholls was not their friend and was putting on an act. Mr Jarrett agreed that he also wanted to convey a message that Mr Nicholls could be cunning and manipulative. In response to the proposition that he was bagging Mr Nicholls, Mr Jarrett said he believed his comments were true and it was not bagging. Mr Jarrett had the following exchange with Counsel for OCCPL:

[PN1071] And going back to the words that you used, you wanted people, going forward, to see Nicholls as being a person who, in effect, couldn’t be trusted. Correct?  ‑If my one post had that sway on people, then I should be running for parliament, but I was just putting my position forward to the union. Putting my position forward and it being forward to the Lodge as if it was a union meeting. That’s the idea of the page, is to convey messages. I’m an executive. We don’t always have meetings. I had a concern and I needed to let the members know of my concern.

[PN1072] But the message that overall you were trying to send, I suggest, is that insofar as people interact with Nicholls at work, don’t trust him?  ‑Look, yes.

1. Mr Allen also concedes that he called Mr Nicholls a “cunt” but said he did this not to denigrate Mr Nicholls but because this is how employees talk at the Mine.

1. Letters under the signature of Mr Dobbie in relation to the alleged breaches of Social Media Policy were sent on 18 July 2017 to Mr Allen, Mr Armstrong, Mr Jarrett, Mr McConachy and Mr Lake. Those letters are headed: “Alleged misconduct and breach of Glencore’s Social Media Policy”. The letters state that a copy of the relevant post is enclosed. The letters to Mr Allen and Mr Jarrett state that their conduct in posting a comment about Mr Nicholls on a CFMEU Facebook page may breach Glencore’s Social Media Policy as:

·   The post references Mr Nicholls without his approval;

·   The post could be interpreted to reflect negatively on Mr Nicholls or could embarrass or humiliate him; and

·   It is derogatory about Mr Nicholls.

1. The letter to Mr Armstrong states that the post may breach the Social Media Policy because:

·   It could reflect negatively or embarrass an employee;

·   It is derogatory about another person suggesting a lynching is in order for the person who showed the posts to “big mouths”; and

·   It is threatening and may amount to cyber bullying.

1. The letters to Mr Allen, Mr Jarrett and Mr Armstrong state that notwithstanding that the CFMEU Facebook page is a private group the Social Media Policy makes it clear that no site is private and employees must conduct themselves as they would at work. The letters variously assert that the posts are threatening or could encourage violence against a person. The letter to Mr Lake states that the comment on the Daily Mercury site is capable of being viewed by the public and has been viewed and liked by other employees and that Mr Lake’s Facebook page refers to his employment with OCCPL. The letter further states that if proven, the comments may constitute derogatory or threatening comments about other persons and could be interpreted as inciting violence against those persons. The letters also make reference to training having been provided in relation to the Social Media Policy.

1. Under cross-examination Mr Dobbie said that Ms Cody also told him on 11 July that he needed to deal with the social media posts. Mr Dobbie also said that he was only aware of one post – that of Mr Lake in relation to how to pick a scab – as he had seen that post on Facebook. Mr Dobbie agreed that the post had been made on 11 June 2017 and in response to the proposition that he had seen it at that time and done nothing about it, Mr Dobbie said that he sent the post to Mr Nichols and Mr Wynn because he thought it was relevant because people might take offence to it.[79] Mr Dobbie said that he did not raise the post with Mr Lake because he was on strike. Mr Dobbie denied that he sent the post to Mr Wynn to assist in an investigation to build up a body of information to use against people. In response to a question about whether he told Mr Wynn that there were other posts that might assist him in his investigation, Wynn said: “What investigation”.[80] Mr Dobbie also denied that Mr Nicholls was conducting an investigation into social media activity.

2. After denying knowledge of an investigation into Facebook posts, Mr Dobbie was shown an email apparently sent by him to Mr Nicholls on 13 June 2013, in the following terms:

“Darren

Get someone to look at Job in Mining on Facebook, there are heaps of comments (relating to newspaper article) from OCN EA employees that have some things to say, might be useful for your investigation – some comments are threatening.

Regards

Scott Dobbie.”[81]

1. In response to a question as to whether the email or his evidence was true, Mr Dobbie said: “I’d have to say the email based on what’s written there.” Mr Dobbie was then asked a series of questions about the investigation referred to in his email and whether it was about the building up of a body of information to be used as a weapon or artillery in a disciplinary process. Mr Dobbie responded by saying he was not conducting an investigation, that he did not know or could not recall what the investigation was about. Finally Mr Dobbie said: “No, I’m saying based on that email, I must have been aware of an investigation. No, I can’t recall.”[82]

1. Mr Wynn’s evidence under cross-examination was that he was provided with copies of the posts on the Oaky North Lodge Facebook page, by a person whom he assumed had access to that page, perhaps on the basis of membership. I did not allow Mr Wynn to be cross-examined about the identity of the person who provided him with the posts on the basis that I was concerned at possible repercussions should that person be identified and identification of the person was not critical to the CFMEU’s case. Later Mr Wynn said the information was provided to him by more than one person. Mr Wynn agreed that the Company initiated an investigation referred to as “Project Zuckerberg” which he said was related to the alleged social media breaches. In this regard, he was shown an email from Ms Cody to himself and Mr Nicholls with the subject line: “Confidential and privileged - Project Zuckerberg” attaching draft letters to Mr Armstrong, Mr McConachy, Mr Lake, Mr Allen and Mr Jarrett, in relation to the alleged social media breaches. That email was dated 30 June 2017. As previously noted the draft letters attached to the email were dated 13 June 2017.[83] Mr Wynn also agreed that Mr Dobbie had sent him several things on Facebook that Mr Dobbie deemed were maybe inappropriate.[84]

2.4.4 The impact of the allegation letters

1. The persons who received the allegation letters gave evidence of distress and concern caused by the letters; indicated that they were fearful for their employment; and that it would impact on their ability to fully participate in bargaining for a new agreement. Mr Bidgood said that if members of the Lodge started to lose their jobs it would torpedo the bargaining campaign because people would be too scared to stand up to the Company. Mr Wyatte also expressed concern about the collapse of bargaining if members of the Lodge Executive were dismissed and the loss of faith this would cause employees to suffer. Mr McConachy said if people lost their jobs because of conduct on the picket line it would be a huge problem for bargaining because no one would be left to stand up to the Company. Mr Thompson said that if one of the members lost their job it would create a culture of fear for the remaining members and they would not be able to get a good bargaining outcome. Mr Batey said that if the Company could get away with sacking employees in these circumstances it would probably bring an end to bargaining due to fear on the part of employees. Mr Farmer said that when he first read his letter it made him feel sick in the guts and like he just wanted the dispute to be over. Mr Thompson said that when he read his allegation letter, it made him feel that he just wanted the dispute to be over so that he would not have to put up with these attacks from the Company. [85]

1. Mr Brodsky said that the letters had reduced the willingness of employees to actively participate in the picket. It is also the case that the persons who have received the letters of allegation are all members of the Lodge Executive, except for one. Those members of the Lodge executive are the entirety of the employee bargaining representatives. All of the employee witnesses outlined their personal circumstances and the impact of losing their jobs and expressed fear and concern in this respect and the difficulties they would face obtaining alternative employment.

2.5 Direction in relation to CFMEU branded clothing and events of 15-16 July 2017

1. Mr Dobbie’s evidence is that OCCPL was advised at short notice, that industrial action scheduled for 15 and 16 July would not take place and that employees would return to work on those days. The first group of employees to return to work did so on Saturday 15 July with employees who would have been rostered to work shifts commencing at 6.00 am, 9.30 am, 6.00 pm and 8.00 pm reporting to work at or around those times. Mr Wynn arranged for training to take place for each shift on the basis that OCCPL was informed of the return to work at short notice and had an alternative workforce in place already. After the training sessions, employees were sent home with pay on the basis that they were deemed to be surplus to requirements.

2. According to Mr Dobbie, the majority of the employees who came to work on 15 and 16 July were wearing a fluorescent yellow/green CFMEU shirt that they had been wearing on the picket line. Mr Wynn addressed each shift and told them to remove the shirt before entering the Mine because it had been worn on the picket line and he had received complaints about the behaviour on the picket line. Employees were provided with alternative shirts to change into. When they had changed their shirts employees were taken to the training room where Mr Wynn addressed each shift telling them the standard of behaviour that he expected. This included saying words to the effect that the behaviour on the picket line was not acceptable and will not be tolerated on site. Mr Wynn also told employees that if they did not comply they needed to leave the site. Mr Wynn read from a script but in short told employees he would not accept terms such as: “dog, maggot, scab, cunt, fuckwit and grub”. Mr Wynn then said words to the effect that if that sort of behaviour was to continue on site, he would personally walk each man to the gate and follow through the disciplinary process.[86]

1. Notwithstanding that there are legitimate reasons for security operations to be conducted at or in proximity to the Mine site; at the picket line; and at or around the homes of staff and managers in Tieri, I am satisfied that CPA has been engaged in surveillance of employees in their homes and at other locations in Tieri in a manner which is inappropriate. It is clear from the evidence that the level of the security operations is outside the scope of what would be reasonable in the circumstances. The evidence about those operations is also inconsistent with the evidence of Mr Solomon and Mr Chesworth in relation to what the scope of the operations was and the manner in which they were carried out. I did not find either Mr Solomon or Mr Chesworth to be credible witnesses in relation to these matters and the evidence both gave about some of them was highly improbable.

1. The evidence establishes that Mr Chesworth, CPA’s operative in Tieri, requested by email dated 24 June 2017, that Mr Solomon provide a list of addresses “for all CFMEU members”. The reason for such a request was stated in that email to be “so that we can update our information on our maps of union houses and members.” It is telling that no request is made for names of CFMEU members and it is more probable than not that CPA already had a list of names Union members. It is also telling that the request is made for all addresses so that “union houses and members” can be identified.

1. It is more probable than not that all addresses of Union members were requested for the purpose of identifying those perceived to be troublesome or more active on the picket line. The request was made so that information that is already on maps of “union houses and members” could be updated. Clearly the information was not being requested for the purposes of creating maps of Union houses and members, but for the purposes of updating information that was already in existence. Equally clear is that the information was sought to identify particular Union members amongst the group of all Union members.

1. That there were maps in existence on 24 June 2017 containing at least the addresses of CFMEU members is apparent from the evidence of Mr Chesworth who said that the maps were the source of information used by Ms Wheatley to complete the “intel brief” she was tasked to undertake on 24 June 2017, which included “intel on known addresses of possible Union members. If, as Mr Chesworth asserted, the maps that had already been prepared by CPA were the source of information for the “intel brief”, Ms Wheatley would not have had to “collect” information as CPA already had it. It is more probable than not that Ms Wheatley obtained additional information about the addresses of CFMEU members for the purposes of updating the information on the map albeit from a source other than Mr Solomon. Mr Chesworth’s evidence that Ms Wheatley referred only to the information already on the map is highly improbable. Mr Solomon’s evidence that the maps did not exist and there was nothing to update, was at odds with that of Mr Chesworth.

1. I also found Mr Chesworth’s evidence about the manner in which the information on the map was collected, to be highly improbable. There were significant inconsistencies in the explanation of the map provided by Mr Chesworth. Mr Chesworth said that while on patrol, security operatives identified houses where aggressive CFMEU members lived by the fact that persons at those addresses directed rude gestures to security operatives while they were doing their rounds. The addresses of houses from which rude gestures allegedly emanated, were then placed on maps by security operatives and included by Ms Wheatley in an “intel brief.”

1. The entire premise of the manner in which this so called “intel brief” was prepared is absurd. There is no logical basis to conclude that persons who make rude gestures at security operatives who are driving past their homes are the same persons as those who are alleged to have been “playing up” on the picket line. Security operatives are highly visible in the town of Tieri, driving around in easily identifiable vehicles. In circumstances where employees are entitled to the quiet enjoyment of their own homes, it unsurprising that they would direct rude gestures to security operatives patrolling the streets and repeatedly passing by their homes in those vehicles. It does not follow that these same persons would be aggressive on the picket line and that there was any justification for identifying their homes on a map.

1. The most probable reason for the existence of a map showing addresses of aggressive CFMEU members or those who had “played up on the picket line” is for the purpose of undertaking surveillance of those persons at their homes or in Tieri. If surveillance was limited to the picket line, there would be no need for CPA operatives to have the addresses of persons on it whether or not they were “playing up”. Given that OCCPL owns virtually every house in Tieri and leases those houses to managers, staff members or production workers, and that all production workers are members of the CFMEU, the identification of houses occupied by CFMEU members was not a difficult exercise.

1. Such an exercise could have been undertaken by the default method of identifying houses occupied by managers and staff, on the basis that any house owned by OCCPL which was not occupied by managers or staff was occupied by a CFMEU member. If the real purpose of the security operations in Tieri was to protect the homes of staff and managers, then it would only have been necessary to identify the homes occupied by those persons and to monitor those homes. On Mr Solomon’s evidence, the names and addresses of managers and staff whose homes were to be monitored was provided to CPA from the outset. There is no reasonable basis for the request for addresses of CFMEU members or the preparation of an “intel brief” containing this information, other than that CPA operatives were attempting to identify the houses of members of the CFMEU who were seen to be aggressive (most likely because they were active on the picket line). It is more probable than not that the only purpose for such an exercise was to monitor those CFMEU members at home.

1. This is consistent with the fact that in May 2017, prior to the addresses of CFMEU members being requested on 24 June 2017, a document was in existence entitled “Oaky North Preparation Guide for Stoppage May 2017” which contained a list of names of the Lodge Executive members. The same document contained a blank column indicating that employees with history and identification of employees that may constitute a particular threat would be discussed. The members of the Lodge executive named in the Preparation Guide gave evidence of surveillance at their homes. I do not accept the evidence of Mr Chesworth that the views of the employees about the surveillance were based on the fact that cars driven by security personnel were simply doing their rounds in Tieri.

1. That inappropriate monitoring of employees at home was occurring is also apparent from email reports prepared by CPA operatives on 25 June that there was a party on Malvern Avenue and a secondary party on Bradman Street.[140] That email also reported that there were loud patrons at the pub that night. The email of 6 July 2017 reporting that CFMEU members were in the pub until 02:30 – 03:00 hours that morning is further evidence of this.[141] The explanation for those reports provided by Mr Solomon and Mr Chesworth – that security operatives were complaining about being kept awake by the parties and the pub activities – was highly improbable. If the rowdiness of parties and activities in the pub was keeping security operatives awake at night, I have no doubt that CPA would have reported this by some other means than in an emailed report entitled “Daily Update” for which CPA doubtless charged a fee to OCCPL.

1. It is more probable than not that CPA was engaged in a series of clandestine activities involving surveillance of employees in their homes and while they were in locations in the community such as the pub. On balance, the level of security operations and their scope is unfair on the basis that it is a disproportionate response to the conduct of the CFMEU and its members. Although the behaviour on the picket line has been appalling, there is little if any evidence before me of any CFMEU member employed by OCCPL engaging in any conduct in Tieri, including at the pub, the golf club, the Girl Guide Hut, their own homes and the homes of staff and managers or employees of contractors which could be described as threatening, harassing or intimidating.

1. If OCCPL seeks to protect the homes of staff and managers in Tieri or its other assets in and about the town, then it can undertake security operations for these purposes without surveillance of CFMEU members in their homes or in Tieri. If members of the CFMEU wish to have parties at their homes or stay in the pub until 2.00 am, then they should be free to do so without being the subject of monitoring and reporting by a security firm. I am satisfied and find that inappropriate surveillance of CFMEU members at their homes and at other locations in Tieri has been occurring and that this is unfair or capricious conduct.

6.6 Does the unfair or capricious conduct undermine collective bargaining or freedom of association?

1. I am also satisfied that the unfair or capricious conduct identified above undermines collective bargaining and freedom of association. The conduct has occurred at a critical time in the negotiations. Employees have engaged in protected industrial action and maintained their bargaining position in the face of being locked out for an extensive period. They have also voted overwhelmingly to reject an agreement proposed by OCCPL. Each of the parties has taken advantage of various mechanisms provided for by the Act to escalate the bargaining and to take action and retaliatory action against each other.

1. Within a short space of time after a ballot of employees overwhelmingly rejected the Company’s proposed agreement, conduct which I have found to be unfair or capricious was undertaken against employees. The employees have given evidence that the conduct of the Company subject of the application for bargaining orders is causing them to fear for the security of their employment and is having an impact on their desire to continue the bargaining process. There is also evidence that the effect extends beyond the employees who have been given allegation letters and is or is likely to cause other employees who have not been given such letters to be concerned, such that their attitude to bargaining and their engagement in Union activity will be curtailed.

2. I accept the evidence of the employees in this regard. The fact that bargaining is continuing and employees are maintaining their bargaining position despite the fact that the allegation letters have been issued, is not indicative that the letters are having a minimal impact. It is equally probable that employees are maintaining their position because the Company has undertaken not to proceed with the allegation letters pending the hearing and determination of this matter.

1. Regardless of whether OCCPL intended to undermine collective bargaining and freedom of association, that is the effect or likely effect of the conduct of the Company. Allegation letters have been unfairly or capriciously issued to employees who are engaging in Union activity and mounting a significant campaign in support of a particular bargaining position. Those letters are causing employees to be concerned about the security of their employment in already difficult circumstances. The unfair or capricious direction has been issued reversing the longstanding practice of employees being permitted to wear CFMEU branded apparel at work. This direction, lacking any reasonable basis, can only further undermine Union activity by sending a message to employees that the CFMEU and those who associate with the Union are perceived in an adverse light by managers of OCCPL.

1. The unfair conduct of surveillance operations in Tieri can only have caused distress and concern to employees and their families and further undermined their engagement in Union activities associated with collective bargaining and membership of the CFMEU.

7. CONCLUSION

1. I have concluded that in issuing the allegation letters; issuing the direction revoking previous permission for employees to wear Union clothing in the workplace and undertaking surveillance of employees at their homes and in Tieri, OCCPL has engaged in capricious or unfair conduct that undermines freedom of association or collective bargaining.

1. An application for bargaining orders has been made by the CFMEU. It is not in dispute that the requirements in s. 230(1)(b) of the Act have been met on the basis that the employer has agreed to bargain for an agreement. I am satisfied that it is reasonable in all of the circumstances to make bargaining orders. Accordingly, the following orders will issue with this Decision:

·   OCCPL will withdraw the direction issued to employees that they are no longer permitted to wear clothing associated with the CFMEU into and out of the Mine and will not issue any new directions to the same or similar effect;

·   OCCPL cease undertaking or causing to be undertaken, surveillance of employees other than in the precincts of the Mine or while employees are engaged in any picket or other protest activity organised in the vicinity of the Mine;

·   OCCPL will take no further steps with respect to the allegation letters issued to employees including disciplinary action against employees the subject of the investigation letters; and

·   OCCPL will not rely on the investigation letters in any respect.

1. Notwithstanding that I have decided to issue the orders, I do so on the basis that:

·   There has been conduct on the picket line that is appalling and I do not support or condone it;

·   That conduct is likely to cause irreparable harm to the workplace relationships at the Mine if it has not already done so and is placing the health and safety of those who engage in it and those subjected to it, at risk;

·   The CFMEU and its members on the picket line have every right to express their anger and disgust at the fact that their work is being performed by staff and employees of contractors while they are taking protected industrial action or are locked out of the Mine, by conducting a peaceful picket or engaging in other lawful Union activity;

·   The CFMEU and its members on the picket line can legitimately express their anger and disgust by chanting slogans, waving signs and playing music;

·   The CFMEU and its members do not have the right to express their anger and disgust in any manner which abuses, harasses, intimidates or vilifies staff and contractor employees or any person who crosses the picket line, or works during periods when CFMEU members are locked out or taking protected industrial action;

·   For the avoidance of doubt, and without being exhaustive, the terms “cunt”, “maggot”, “grub”, “dog”, “fuckwit” and “scab” are abusive, offensive, intimidating and constitute harassment and vilification, as do signs depicting those terms or noises or gestures intended to convey the same meaning;

·   The fact that the employees are taking protected industrial action or engaging in lawful Union activity does not give them immunity from disciplinary action for breaches of Glencore policies and procedures where there is a sufficient connection between the conduct that allegedly breaches the relevant procedure and the workplace;

·   Employees who continue to direct words, actions, gestures and visual displays that are abusive, harassing, intimidating and vilifying to persons that they will be working with when the present dispute ends are liable to have disciplinary procedures instigated against them, regardless of the fact that they are taking protected industrial action or are engaging in lawful Union activity at the time;

·   The conduct of OCCPL is equally appalling and in particular the clandestine and quasi-military activity of its security contractor in and around Tieri was a disproportionate response to the circumstances which then prevailed and can only have inflamed the dispute;

·   Regardless of whether or not it was intended, the conduct of OCCPL in issuing the allegation letters, the direction in relation to Union branded clothing and the surveillance, was capricious or unfair conduct which undermined collective bargaining and freedom of association;

·   My findings in this decision and the orders I have issued relate only to events in the period from May to July 2017; and

·   If OCCPL, the employees and the CFMEU continue on their present path there will likely be further litigation and any prospect of resolving the underlying bargaining dispute will disappear, if it has not already done so.

1. The Commission continues to be available to the parties should they wish to engage in further discussions in an attempt to break their present impasse.

DEPUTY PRESIDENT

Appearances:

Mr R Reitano of Counsel and Mr C Massey of Junior Counsel instructed by Hall Payne Lawyers for the Applicant.

Mr C J Murdoch, Senior Counsel with Ms G Dann of Counsel instructed by Corrs Chambers Westgarth for the Respondent.

Hearing details:

3 August.
Brisbane.
2017.

5, 6 and 7 September.
Emerald.
2017.

[1] Exhibit R3 Witness Statement of Damien Wynn [7].

[2] Transcript 6 September 2017 PN2330 – 2338.

[3] Exhibit A2 – Statement of Christopher Iain Brodsky; Exhibit A32 – Reply Statement of Christopher Iain Brodsky; Exhibit A34 – Further Reply Statement of Christopher Iain Brodsky.

[4] Exhibit A3 – Statement of Mark Barrass

[5] Exhibit A4 – Statement of Rhys O’Donoghue.

[6] Exhibit A5 – Statement of Kerry Saunders.

[7] Exhibit A6 – Statement of Michael Murray.

[8] Exhibit A7 – Statement of Nick Armstrong.

[9] Exhibit A8 – Statement of Wade Bidgood.

[10] Exhibit A9 – Statement of Nathan Lake.

[11] Exhibit A10 – Statement of Ross Clark.

[12] Exhibit A11 – Statement of Robert Davis.

[13] Exhibit A12 – Statement of Mitch Wyatte.

[14] Exhibit A13 – Statement of Kerrod Slatter.

[15] Exhibit A14 – Statement of Daniel Curry.

[16] Exhibit A15 – Statement of Kris-Anne Justine Birch.

[17] Exhibit A16 – Statement of Lachlan Michael Robert Jarrett.

[18] Exhibit A17 – Statement of Michael Corrie.

[19] Exhibit A18 – Statement of Jimmy McConachy.

[20] Exhibit A19 – Statement of Thomas Farmer.

[21] Exhibit A20 – Statement of Ryan Richardson.

[22] Exhibit A21 – Statement of Michael Andolfetto.

[23] Exhibit A22 – Statement of Matthew Earl.

[24] Exhibit A23 – Statement of Matthew Flavel.

[25] Exhibit A24 – Statement of Keith Thompson.

[26] Exhibit A25 – Statement of Karl Batey.

[27] Exhibit A26 – Statement of Corey James Sullivan.

[28] Exhibit A27 – Statement of Adam Matthew Kasprowicz.

[29] Exhibit A28 – Statement of Adam Brady.

[30] Exhibit A29 – Statement of Jerry Ahern.

[31] Exhibit A30 – Statement of Ben Earl.

[32] Exhibit A31 – Statement of Danny Allen.

[33] Exhibit A33 – Witness Statement of Randal Meier.

[34] Exhibit A35 – Reply Statement of Jeremy Charles Forsyth.

[35] Exhibit A36 – Reply Statement of Ian Thomas Morrissey.

[36] Exhibit A37 – Reply Statement of Adrian John Woodman.

[37] Exhibit A38 – Reply Statement of Leslie Stephen Morrisey.

[38] Exhibit A29 – Reply Statement of Anthony Robert Kirsopp.

[39] Exhibit R3 – Witness Statement of Damien Wynn; Exhibit R5 – Supplementary Witness Statement of Damien Wynn.

[40] Exhibit R4 – Witness Statement of Scott Dobbie; Exhibit R6 – Supplementary Witness Statement of Scott Dobbie.

[41] Exhibit R7 – Witness Statement of Michael Benjamin Solomon.

[42] Exhibit R8 – Witness Statement of Michael Craig Williams.

[43] Exhibit R9 – Witness Statement of Martin James Chesworth.

[44] Exhibit R4 Annexure “SD-2”.

[45] Exhibit R4 Annexure “SD-1”.

[46] Exhibit R4 Annexure “SD-20”.

[47] Exhibit A2 Statement of Christopher Brodsky [37] and Annexure “CIB4”. 

[48] Exhibit A34 Further reply statement of Christopher Brodsky [7].

[49] Exhibit R3 – Statement of Damien Wynn – Annexure DBW-18.

[50] Exhibit R9 – Statement of Martin Chesworth [45].

[51] Exhibit R3 – Statement of Damien Wynn – Annexure DBW-19.

[52] Transcript 6 September 2017 PN2630 – 2644.

[53] Transcript 6 September 2017 PN2665 – 2678.

[54] Transcript 6 September 2017 PN2694 – 2695.

[55] Transcript 6 September 2017 PN2706 – 2708.

[56] Transcript 6 September 2017 PN1391-1396.

[57] Transcript 6 September 2017 PN1388 - 1412.

[58] Transcript 6 September 2017 PN1452.

[59] Transcript 6 December 2017 PN1417 – 1433.

[60] Transcript 5 December 2017 PN137 – 148.

[61] Exhibit A12 – Statement of Mitchell Wyatte [47].

[62] Exhibit A8 – Statement of Wade Bidgood [27].

[63] Exhibit A9 – Statement of Ross Clark [48] – [51].

[64] Transcript 5 September 2017 PN1130 – 1143.

[65] Transcript 5 September 2017 PN550 – 555.

[66] Transcript 5 September 2017 PN1005 – 1042.

[67] Transcript 5 September 2017 PN994.

[68] Transcript 6 September 2017 PN1510 – 1518.

[69] Transcript 6 September 2017 PN1534 – 1537.

[70] Transcript 6 September 2017 PN2775.

[71] Transcript 6 September 2017 PN2756 – PN2757.

[72] Exhibit A42.

[73] Exhibit A42.

[74] Exhibit A43.

[75] Transcript 6 September 2017 PN1676 – PN1683.

[76] Exhibit A12 Witness statement of Mitchell Wyatt [39].

[77] Transcript 5 September 2017 PN916 – PN939.

[78] Exhibit R5 Supplementary Witness Statement of Damien Wynn [57].

[79] Transcript 6 September 2017 PN1712 – 1717.

[80] Transcript 6 September 2017 PN1736.

[81] Exhibit A44.

[82] Transcript 6 September 2017 PN1769 – PN1774.

[83] Exhibit A61.

[84] Transcript 6 September 2017 PN2856.

[85] Exhibit A5 Statement of Kerry Saunders at [50]; Exhibit A7 Statement of Nick Armstrong at 34; Exhibit A8 Statement of Wade Bidgood at [40]; Exhibit A12 Statement of Mitchell Wyatte at [70]; Exhibit A13 Statement of Kerrod Slatter at 43; Exhibit A18 Statement of Jimmy McConachy at [31]; Exhibit A19 Statement of Thomas Farmer at [34]; Exhibit A24 Statement of Keith Thompson at [39]; Exhibit A25 Statement of Karl Batey at [34]; Exhibit A31 Statement of Danny Allen at [81].

[86] Exhibit R4 paragraphs 118 – 128.

[87] Exhibit A20 – Statement of Ian Richardson.

[88] Exhibit A41 May Day shirt.

[89] Exhibit A40 CFMEU jacket.

[90] Exhibit A22 – Statement of Mr Matthew Earl.

[91] Exhibit A30 – Statement of Ben Earl.

[92] Exhibit A28 – Statement of Adam Brady.

[93] Exhibit A30 – Statement of Ben Earl.

[94] Exhibit R5 Supplementary witness statement of Damien Wynn paras 31-32.

[95] Exhibit A4 – Statement of Rhys O’Donoghue; Exhibit A8 – Statement of Wade Bidgood; Exhibit A9 – Statement of Nathan Lake; Exhibit A10 – Statement of Ross Clark; Exhibit A11 – Statement of Robert Davis; Exhibit A12 – Statement of Mitchell Wyatte; Exhibit A16- Statement of Lachlan Jarrett; Exhibit A18 – Statement of Jimmy McConachy; Exhibit A29 – Statement of Jerry Ahern: Exhibit A31 – Statement of Danny Allen.

[96] Exhibit R5 – Supplementary statement of Damien Wynn.

[97] Exhibit A45.

[98] Exhibit A47.

[99] Transcript 6 September 2017 PN2067 – 2070.

[100] Exhibit A49.

[101] Transcript 6 September 2017 PN2123 – 2125.

[102] Transcript 6 September 2017 PN2127 – 2140.

[103] Exhibit A50.

[104] Transcript 6 September 2017 PN2314.

[105] Exhibit A51.

[106] Transcript 6 September 2017 PN2186.

[107] Transcript 6 September 2017 PN2194-2206.

[108] Exhibit A52.

[109] Exhibit A53.

[110] Transcript 6 September 2017 PN2262 – 2263.

[111] Exhibit A46.

[112] Transcript 6 September 2017 PN2059.

[113] Transcript 6 September 2017 PN2391 – PN2412.

[114] Transcript 6 September 2017 PN2413 – PN2454.

[115] Transcript 6 September 2017 PN2456 – PN2467.

[116] Exhibit A50.

[117] Transcript 6 September 2017 PN2468 – PN2496.

[118] Transcript 6 September 2017 PN2497 – PN2509.

[119] Transcript 6 September 2017 PN2514 – PN2548.

[120] Transcript 6 September 2017 PN2549 – PN2563; Exhibit 57.

[121] Exhibit A48.

[122] Transcript 6 September 2016 PN2093.

[123] Exhibit R5 – Supplementary Statement of Damien Wynn – Annexure DBW5.

[124] Exhibit R9 – Witness Statement of Martin Chesworth – Annexure MJC5.

[125] Exhibit R9 – Witness Statement of Martin Chesworth – Annexure MJC6.

[126] CFMEU v Anglo Coal (Capcoal Management) Pty Ltd T/A Capcoal[2016] FWC 8847 (Capcoal) at [97] per DP Asbury.

[127] Capcoal op cit at [101] – [102].

[128] Capcoal op cit at [103].

[129] Capcoal op cit at [103].

[130] Capcoal op cit at [104].

[131] Capcoal op cit at [104].

[132] Capcoal op cit at [105].

[133] Capcoal op cit at [115].

[134] Capcoal op cit at [124].

[135] Capcoal op cit at [135].

[136] (1992) IR 82 at 89.

[137] McManus v Scott-Charlton (1996) 70 FCR 16.

[138] Mt Arthur Coal Pty Ltd t/a Mt Arthur Coal Pty Ltd v Goodall [2016] FWCFB 5492; Horner v Kailis Bros Pty Ltd [2016] FWC 145.

[139] (2014) 253 CLR 243.

[140] Exhibit A55.

[141] Exhibit A54.

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