Coles Group Supply Chain Pty Ltd T/A Coles Myer Logistics v National Union of Workers

[2018] FWC 1134

[2018] FWC 1134

FAIR WORK COMMISSION

DECISION

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

Coles Group Supply Chain Pty Ltd T/A Coles Myer Logistics
v
National Union of Workers
(C2018/873)

COMMISSIONER SPENCER BRISBANE, 21 FEBRUARY 2018

Coles Group Supply Chain Pty Ltd - Parkinson Distribution Centre unprotected industrial action.

[1] This decision reproduces, in edited form, the decision and reasons which were stated on transcript at the conclusion of the hearing conducted in relation to this matter, late on 20 February 2018.

[2] This decision is provided in relation to a s.418 application. Coles Group Supply Chain Pty Ltd T/A Coles Myer Logistics (Coles DC/the Applicant) applied for Orders under s.418 of the Fair Work Act 2009 (the Act), in respect of alleged industrial action by persons employed at its Parkinson Distribution Centre who are members or are eligible to be members of the National Union of Workers (the NUW). The matter was listed for conference, for programming.

[3] The parties held discussions, endeavouring to get undertakings regarding the industrial action. The hearing was brought on later that night. Two witness statements were filed. Coles DC was represented by Ms C Berry, Senior Associate of Hebert Smith Freehills and the NUW was represented by Mr D Mujkic, Industrial Officer.

[4] No issues of procedural fairness were raised by the NUW until final submissions. I consider given the limited evidence and the opportunity to consider such, in addition that Mr Mujkic stated that he had been involved in discussions regarding the underlying dispute that day, that no prejudice has been made out.

[5] The employees are covered by the Coles Parkinson CDC and National Union of Workers Enterprise Agreement 2017 (the Agreement). The Agreement has a nominal expiry date of 31 July 2020. Accordingly, industrial action taken during the current life of the Agreement by employees is unprotected.

[6] A dispute had arisen onsite, with the NUW liaising with their members regarding Coles DC’s approach to two employees injured outside work.

[7] Coles DC submitted that a number of employees took unprotected industrial action, in the form of withdrawing their labour during the afternoon shift yesterday, from 1.00 pm ceasing at approximately 9.15 pm during the proceedings last evening.

[8] In relation to this matter, Ms Jacqueline Bateman, People and Culture Manager at the Parkinson Distribution Centre, set out that the NUW had expressed concerns to their members about the stand down of the two employees, as a result of the non-work related injuries and Coles DC assessing, that they were not able to perform the inherent requirements of their positions.

[9] In support of the application to stop unprotected industrial action, Coles DC called evidence from Mr Justin Mackedie, Distribution Centre Manager at the Parkinson Distribution Centre. He provided evidence of the impact of the industrial action as follows:

“40. The Parkinson Distribution Centre has a significant consequential role in the broader Coles business. The Site is responsible for the daily delivery of fresh produce to 205 Coles retail outlets throughout South East Queensland.

41. The impact of industrial action taken at the Site has severe negative consequences for the Site itself but also for Coles retail outlets, these consequences include (but are not limited to):

a. the absence of available fresh produce stock at retail outlets for sale to customers (i.e. lost sales and negative customer experiences);

b. the loss and damage of stock required to be stored for a longer period of time at the Parkinson Distribution Centre (i.e. products that expire due to delayed delivery);

c. the devaluation of stock that has aged at the Parkinson Distribution Centre and is delivered late to retail outlets (i.e. mark down of aged stock); and

d. delayed operation for truck drivers collecting and delivering goods from the Site - this results in longer shifts for the relevant drivers and increased hours on the road.

42. A conservative estimate of the value of stock that is distributed from the Parkinson Distribution Centre each day is in excess of $10,000,000.00.”

[10] Annexed to Mr Mackedie’s statement was a flyer that had been found in the canteen on the evening of 19 February 2018. The flyer stated as follows:

“Union members have raised concerns about the way Coles is treating some of our older, injured workers. Coles have ignored your Union’s request to give more information & fix the problem. Shame!

Join us tomorrow morning for a report back.

URGENT UNION

MASS MEETING

BEFORE WORK

4:45 AM

TUESDAY, 20 FEB

AT TURNSTILES”

[emphasis in original]

[11] Mr Mackedie provided evidence in relation to the matter in dispute, linked with the actions of the NUW and the unprotected industrial action. In relation to the NUW’s involvement with this matter, he provided the following unchallenged evidence:

“12. I recall a conversation to the following effect took place:

13. Ms Beynon [of the NUW]: “It is illegal for the business to be withdrawing duties from these people. The medical evidence doesn’t support it”.

14. Ms Beynon: “Do you feel angry about it?”

15. Ms Beynon: “Come on! Are you angry about it? Do you want to do something about it?””

[12] The statutory test is set out in s.418(1) of the Act:

“418 FWC must order that industrial action by employees or employers stop etc.

(1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:

(a) is happening; or

(b) is threatened, impending or probable; or

(c) is being organised;

the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.

...”

[13] On the evidence, I consider that there is a connection between the employees’ conduct and the NUW’s referral of this dispute to their members. I further draw an inference that Ms Beynon (Industrial Officer of the NUW), whilst contacted by my chambers about these proceedings, did not appear in the proceedings last night however the evidence demonstrates she had a significant involvement with this matter on site.

[14] There was no evidence that the matter of the two injured employees, who had been stood down, had been resolved. Coles DC’s legal representative submitted that the process to be adopted, in relation to this matter, involving further medical assessments, may take some time. On the evidence there was no finalisation of this matter and given the conduct, it was “probable” that further related industrial action would occur. Such conduct would further significantly impact the 24/7 site operations. These operations had already been particularly impacted by the industrial action.

[15] I consider it significant and an act of complete disregard for the normal available avenues for dispute resolution, that employees took unprotected industrial action, rather than undertake the normal methods available.

[16] On the evidence, there is a nexus, as set out, between this unresolved dispute and the probability that further unprotected industrial action would be taken and that this may have been as imminent as the morning shift, commencing at 5.00 am. This is a 24/7 operation and requires certainty and confidence, and the actions of the NUW provided a complete indifference as stated, for the required conduct in accordance with the Agreement.

[17] On the basis of those findings, pursuant s.418, I issued an Order and provided it on an ex tempore basis last night. The Order required the identified industrial action to stop, not occur, and not be organised. The Order was provided the parties and published at the completion of the proceedings. A copy was also emailed to the NUW.

[18] The Order [PR600591] was provided for the period commencing 11.50 pm that night (20 February 2018) and finishing at 6.00 pm Tuesday, 6 March 2018.

[19] Subsequent to the Order being issued and after the conclusion of the hearing, the Applicant’s legal representative corresponded with the Commission seeking that the Commission vary the Order. The Applicant’s representative sought the following variations:

“Order 3.2 be amended to read: “Employees of the Coles Group Supply Chain Pty Ltd T/A Coles Myer Logistics (the Company), who are members of the NUW and who are employed at 99 Sandstone Pl, Parkinson in the State of Queensland (the Parkinson Distribution Centre) and whose work and employment are regulated by the Agreement (the Employees)”

Orders 4.1 and 4.2 be amended to replace each reference to “employee” with “Employee” and each reference to “employees” with “Employees”.

Orders 5.1.2, 5.2, 5.3 and 5.4 be amended to replace the reference to “the NUW Members” with “the Employees”.”

[20] As to the second variation sought in relation to “employee” versus “Employee” and “employees” verses “Employees”, I have declined to vary the Order. I consider that it is apparent what is meant by these terms in the Order already. An Order that it issued at midnight, after some three and a half hours of hearing held in relation to an application that had been filed in the Commission at approximately 3.45 pm that day, must be approached in that context. I consider the Order is clear in relation to these matters and was provided on the basis of the evidence presented by the Applicant.

[21] The third variation, in relation to the phrase “NUW Members”, again I decline to vary the Order. It is true that the term “NUW Members” is not defined by the Order but the Order is expressed as applying to and binding on, amongst others, employees of the Applicant who are members of the NUW and employed at the relevant site. The term “NUW Members” is sufficient apparent to mean, members of the NUW in the context of those persons to whom the Order applies and binds.

[22] The first proposed variation is a much more significant variation. The basis for the variation sought is, as I understand it, that the application was sought for an Order that employees that are both members of the NUW and non-members be ordered to not engage in, threaten to engage in, or organise industrial action. If it was not clear during my ex tempore reasons given at the time of issuing the Orders, I add as follows.

[23] I am not satisfied that all employees (including agency employees) generally were engaging in or threatening to engage in industrial activity. The evidence, which was limited, established that the NUW was organising industrial action with its members. There was no clear evidence that employees generally (that is including non-members or agency workers) were engaging in industrial action. I have Ordered that the NUW, its officials and representatives not engage in or organise any industrial action and that NUW Members not take part in any industrial action, that is, not to engage in industrial action. I decline the variation sought by the Applicant and confirm the Orders as made at the close of proceedings.

COMMISSIONER

Appearances:

Ms C Berry of Herbert Smith Freehills on behalf of the Applicant.

Mr D Mujkic on behalf of the Respondent.

Hearing details:

2018.

Brisbane:

20 February.

Printed by authority of the Commonwealth Government Printer

<PR600620>