Coles Group Supply Chain Pty Ltd v National Union of Workers

[2014] FWC 3876

[2014] FWC 3876

FAIR WORK COMMISSION

EXTEMPORE 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
(C2014/4852)

COMMISSIONER BULL SYDNEY, 13 JUNE 2014

Application for s.418 Coles Group Supply Chain Pty Ltd at Eastern Creek Distribution Centre in NSW against NUW, application dismissed

(This is a decision given on transcript at the conclusion of the hearing edited for style and grammar).

Representation

[1] In this application by Coles Group Supply Chain Pty Ltd (Applicant) Mr Fox of counsel sought leave to appear, which was not opposed by Mr Mueller who appeared for the National Union of Workers (NUW). On this basis, leave was granted for Mr Fox to appear for the Applicant pursuant to sub-ss.596(2)(a) and (c) of the Fair Work Act 2009 (Cth) (Act).

Dispute

[2] The facts in this matter are that a dispute has arisen over the use of casual employees on the Queen's Birthday public holiday on Monday, 9 June 2014, allegedly contrary to the terms of the applicable agreement. I was advised that an enterprise bargaining agreement approved by this Commission applies to the relevant employees, being the Coles Eastern Creek National Union of Workers National Distribution Centre Enterprise Agreement 2012 (Agreement)with a nominal expiry date of 1 September 2015. I note clause 8 of the Agreement deals with grievances concerning the application of the Agreement.

Unprotected industrial action

[3] In this matter, a section 418 order has been sought by the Applicant against the NUW and its members, following what they say was unprotected industrial action taken on the morning of 11 June 2014. That action was put into evidence by Mr Atkinson, the Human Resources Manager for the Applicant, who said there were two shifts worked by the employer, being a day shift starting at 5.00am and finishing at 2.30pm and an afternoon shift starting at 2.30pm and finishing at midnight.

[4] The facts as expressed by Mr Atkinson in his witness statement 1 are that around 4.30am on the morning of Wednesday 11 June 2014, employees who were to commence the day shift began to congregate in the car park by the work site. At 5.00am, there were around 124 employees in the car park, including NUW delegates Sasha Tasic, Karin Jaff, Paul Hana and David Hewitt. His evidence was that the delegates were involved in discussions with the other employees. At 5.00am, of the 162 permanent employees who were rostered to work on the dayshift, 18 employees called in sick, 20 employees commenced work at 5.00am and the balance did not attend work.

[5] At approximately 10.20am that morning, after a meeting with NUW organiser, Mr Nero, all but 17 employees returned to normal work. At 2.30pm, the afternoon shift workers commenced work as normal. On the factual circumstances there was no “happening” unprotected industrial action.

Conclusion

[6] I am satisfied and have no hesitation in concluding that unprotected industrial action occurred on the morning of June 11, between 5.00am and 10.20am and was taken in conjunction with the NUW and that its delegates were involved in the organising of the unprotected industrial action. I obtain support for this conclusion from the evidence of Mr Atkinson and the fact that his evidence in regard to the stoppage of work was not, in any real manner, contested by Mr Mueller in his cross-examination of Mr Atkinson.

[7] On the basis that there is no actual industrial action occurring, an order under s.418 must proceed on the basis that it appears that unprotected industrial action is threatened, impending, probable or being organised. If the Commission is satisfied of that, then it must issue an order pursuant to s.418 of the Act either in the terms of the draft order provided by the Applicant or in terms that I think are just and fair.

[8] In respect to impending, probable or threatened industrial action, Mr Atkinson expressed his concern that employees on the afternoon shift of 11 June 2014 may take industrial action at around 8.00pm. He came to that conclusion due to the fact the dispute in respect of the original industrial action had not been resolved, conversations that had been related to himself and, as per the submissions of Mr Fox, no undertaking that the industrial action will not occur has been given by the NUW.

[9] Mr Mueller made submissions but called no evidence and relied upon the onus being on the Applicant to demonstrate its case. Further, as mentioned above, the NUW, when asked or requested by myself or the Applicant to provide an undertaking on transcript that there would be no future unprotected industrial action declined to do so. However, when asked directly by the Commission as to whether an industrial action would be undertaken by the afternoon shift, Mr Mueller replied in terms that he wasn't aware that such action would be occurring.

[10] A s.418 order is a serious matter and breaches of such an order have serious ramifications. However, as stated previously, I must be satisfied that there is threatened, impending or probable unprotected industrial action or that unprotected industrial action is being organised. Despite the fact that no evidence was called by the NUW, (the NUW and its members are named as parties in the draft order) and despite the fact that there has been no undertaking given by the NUW, I am not satisfied to the requisite degree that I believe is necessary that there is a real and genuine threat, be it threatened, impending and/or probable of future industrial action.

[11] I have come to this conclusion on the basis that:

● there is no demonstrated history of equalisation of industrial action between shifts;

● I have been provided with no history of unprotected industrial action taken by the NUW and its members at this site;

● I am somewhat comforted by the employees returning to work the same morning at 10.20am - albeit 17 out of those 140 odd employees did not return to work, 13 of which I'm told are members of the NUW, after having been addressed by NUW organiser Mr Nero;

● It is not unusual, in my experience, at least, where industrial action has taken place at 5.00am, that, come 10.20am, some employees have decided to go home for the day, not knowing what will happen; and

● The concerns of Mr Atkinson were based on his opinion.

[12] In this case, it is clear that the dispute resolution procedure that I have referred to at clause 8 of the Agreement Grievance Procedure has not been utilised; it was required to be followed and it was not.

[13] Had it been followed, I am confident that there would not have been any loss of production and, secondly, and just as importantly, there would not have been a loss of wages to employees. If, in the near future, the dispute procedure is not followed, and unprotected industrial action is taken over this dispute, obviously this then becomes strong evidence that a s.418 order should be issued.

[14] For the reasons provided, the application is dismissed.

COMMISSIONER

Appearances:

Mr J Fox of Counsel on behalf of Coles Group Supply Chain Pty Ltd

Mr S Mueller on behalf of the National Union of Workers

Hearing details:

2014

Sydney

13 June 2014

 1   Exhibit A1

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