Coles Group Supply Chain Pty Ltd v National Union of Workers
[2012] FWA 6449
•30 JULY 2012
[2012] FWA 6449 |
|
REASONS FOR 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
v
National Union of Workers
(C2012/4492)
COMMISSIONER MACDONALD | SYDNEY, 30 JULY 2012 |
Application for an Order to Stop Unprotected Industrial Action at Coles Distribution Centres.
[1] Coles Group Supply Chain Pty Ltd (Coles or the Company) made an application on 11 July 2012 for an order pursuant to section 418 of the Fair Work Act 2009 (the Act) in respect of industrial action by employees at three distribution centres located in New South Wales: (a) Eastern Creek; (b) Smeaton Grange and (c) Goulburn. During proceedings, Coles amended its application by deleting the reference to Smeaton Grange.
[2] On that same day as the application, I held a hearing and during the conclusion of that hearing, I issued an order to stop industrial action. These are my reasons for doing so.
[3] The application was made under s.418 of the Act which is in the following terms:
“(1) If it appears to FWA 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;
FWA 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.
Note: For interim orders, see section 420.
(2) FWA may make the order:
(a) on its own initiative; or
(b) on application by either of the following:
(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;
(ii) an organisation of which a person referred to in subparagraph (i) is a member.
(3) In making the order, FWA does not have to specify the particular industrial action.
(4) If FWA is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:
(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or
(b) which has not ended before the beginning of that stop period; or
(c) beyond that stop period;
FWA may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.”
[4] The s.418 application, as amended, sought orders against the National Union of Workers, New South Wales Branch (the Union); the officers, employees, agents and delegates of the Union; and the employees employed by the Company at its operations at the Eastern Creek Distribution Centre who are bound by the Eastern Creek National Distribution Centre Enterprise Agreement 2009 and employed at the Goulburn Distribution Centre who are bound by the Coles Goulburn (NUW) Distribution Centre Enterprise Agreement 2010. The order I made, did not extend to all of these categories of persons. The category of “agents” was not included by consent of the Company and the Union.
[5] In support of its s.418 application, Coles filed two witness statements; Mr Rick Stockton, Distribution Centre Manager at Eastern Creek and Mr Stewart Kennedy, Distribution Centre Manager at Goulburn. Only Mr Stockton was required for cross-examination.
Findings
[6] Based on the evidence and the s.418 application, I make the findings set out below.
[7] Coles operates distribution centres at Eastern Creek and Goulburn. These sites are responsible for receiving, processing and despatching of general merchandise and other selected items. There are approximately 430 employees and 220 employees at Eastern Creek and Goulburn Distribution Centres respectively.
[8] There is an industrial dispute taking place in Melbourne, Victoria. The dispute involves striking workers who are members of the Union. The striking workers were reported to be disrupting Coles operations at a warehouse by way of a picket line. The Coles distribution centre in Melbourne is run by Toll Holdings and not by Coles. The striking members were reportedly seeking that Toll Holdings provide the same conditions of employment as provided to employees at other sites run by Coles.
[9] At the Eastern Creek Distribution Centre, on 10 July 2012, the Union’s delegates called a meeting between themselves and management and the former advised the management that the Union’s members would not be processing certain stock on instruction from the Union (Derrick Belan/State Secretary and Justin Cody/union organiser). At another meeting later in the morning of 10 July, the Union’s delegates advised Mr Stockton that Derrick Belan had told the Union’s members not to load the Company’s trucks.
[10] The next day, 11 July, Mr Stockton and another met with two Union officials: Mr Nick Belan and Mr Justin Cody. In their meeting, the two Union officials referred to scab labour (doing other people’s work).
[11] Mr Kennedy of the Goulburn Distribution Centre was approached by two Union delegates around 7.30 am, 10 July 2012. The delegates advised that they had been directed by the Union to cease doing Victorian work (associated with the Union/Toll Holdings dispute) but would still do New South Wales work. Again, at an approximate 8.10 am meeting, the delegates said that they had been directed not to do the Victorian work. Mr Kennedy was also told that the Union organiser, Mr Justin Cody, was going to the Eastern Creek Distribution Centre at that time to organise industrial action at that distribution centre. Mr Kennedy around 8.20 am addressed a meeting of employees who, following that meeting, had their own union meeting in the car park. After the meeting, most employees did not resume work but did so at 12.30 pm.
Conclusion and Order
[12] Based on the evidence, I was persuaded that:
(a) The Company is a person that was directly affected by the action that was being taken by Union members who are employed by the Company at its Goulburn Distribution Centre. That action was a stoppage of work on 10 July 2012 for approximately four hours.
(b) The Company is a person that was directly affected by the action that was being undertaken by Union members who are employed by the Company at its Eastern Creek Distribution Centre. That action was a ban on the processing of the Company’s product/stock that emanates from its Somerton site in Victoria.
(c) The action of the Union members at both distribution centres comprised industrial action as defined by section 19 of the Act - that is sections 19(1)(a), (b) and (c). The industrial action does not fall within any of the excluded categories contained in section 19(2).
(d) The industrial action at both distribution centres were not protected industrial action.
(e) The company sought section 418 orders against the Union and its members.
(f) Section 418(1)(a) provides that Fair Work Australia must make an order if industrial action (which is not protected) is happening. The industrial action at the Goulburn Distribution Centre is no longer happening and hence section 418(1)(a) has no application.
(g) I accept, however, that there is a threat of industrial action occurring at both distribution centres. The reasoning for that conclusion is as follows: Firstly, the actual stoppage of work at one distribution centre and the statement that a ban would be placed on processing Somerton stock at the other distribution centre had their genesis in the Victorian dispute between Toll Holdings and the Union. That dispute was still occurring at the time of my hearing of the section 418 application. That Victorian dispute has had wide media coverage and showed no sign of settling. Secondly, the direct or inferred threat of further possible industrial action was not rebutted before me by way of a Union official giving evidence to that end. There were two or three Union officials present in the court room and not one of them took to the witness box to undermine the Company’s witness evidence as to the concern about the threat of industrial action. No undertaking was provided by any of those Union officials to counter the company’s concern about the threat of further industrial action.
[13] For the foregoing reason, I decided to issue the amended Order stopping any industrial action. The expiry date of the Order is 1 August 2012.
COMMISSIONER
Appearances:
Mr G Jolly, solicitor and Mr J Wright, solicitor, for Coles Group Supply Chain Pty Ltd.
Mr A Joseph barrister, and Mr S Mueller, union official for the National Union of Workers.
Hearing details:
Sydney
2012
11 July
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