Coles Group Supply Chain Pty LtdvNational Union of Workers

[2014] FWC 8853

[2014] FWC 8853

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
(C2014/8037)

COMMISSIONER BULL SYDNEY, 10 DECEMBER 2014

Application for an order that industrial action by employees or employers stop etc, history of previous unlawful industrial action, no undertakings provided, probability of future unlawful industrial action, order granted.

[1] This matter was heard in Sydney on 3 December 2014. At the end of the day and at the conclusion of the hearing, I advised the parties that I would hand down my decision, on transcript, the following day, 4 December 2014. This is the published and edited version of the decision given on transcript.

[2] Pursuant to s.418 of the Fair Work Act 2009 (the Act) an application was made by Coles Group Supply Chain Pty Ltd (Coles) at 9:02pm Tuesday evening, 2 December 2014.

[3] The application seeks an order that applies to the National Union of Workers (NUW), New South Wales Union and members of the NUW employed at the operations of Coles at its Eastern Creek Distribution Centre in New South Wales, who are covered by the Coles Eastern Creek (NUW) National Distribution Centre Enterprise Agreement 2012 1. The Agreement has a nominal expiry date of 1 September 2015.

[4] Mr Jolly, a solicitor, sought leave to appear on behalf of Coles, which was granted under s.596(2)(a) of the Act, without objection from the NUW. Mr Valentin, an industrial officer, appeared for the NUW.

Background

[5] By way of background, the Eastern Creek Distribution Centre is a warehouse facility responsible for the receiving, processing and dispatch of groceries for the wider Coles Group.

[6] The application states at around 8:00pm on Tuesday evening, 2 December 2014 approximately 47 employees on afternoon shift commenced unlawful industrial action. The afternoon shift commenced at 2:30pm and finished at 12 midnight. This resulted in a four hour stoppage - the minimum deduction an employer must make in wages when an employee engages in unprotected industrial action as per s.474(1) of the Act.

[7] On commencement of day shift at 5:00am the employees, of whom there were approximately 100, remained in the car park and did not commence work until 9:00am, a further four hour period of alleged unprotected industrial action.

Submissions

[8] Coles called three witnesses to provide evidence to support their application:

● Mr Frederick Grundy, Distribution Centre Manager at Eastern Creek;
● Mr Sean Atkinson, HR Manager, at Eastern Creek; and
● Mr John Ioane, Distribution Centre Manager at the Smeaton Grange Distribution Centre and formerly the Operations Manager at Eastern Creek.

[9] No witness was cross-examined by the NUW although part of their evidence was objected to on the basis of relevance.

[10] Mr Valentin, for the NUW, submitted that past examples of alleged unlawful industrial action was not relevant to this application. I do not accept that this is the case. A course of previous conduct can be relevant to whether future unprotected industrial action is probable or not.

[11] I have however, disregarded the following from the evidence presented by Coles:

● reference to alleged unprotected industrial action in February 2013;
● reference to alleged unprotected industrial action taken at Eastern Creek on 30 May 2013; and
● reference to alleged unprotected industrial action at the Smeaton Grange site on 5 June 2013 (which involved different employees at a different distribution centre).

[12] There was no evidence as to whether the NUW was involved or their members in the above alleged unlawful industrial action, nor is it evident that these three matters of alleged industrial action were brought before the Fair Work Commission by Coles at the time it is alleged to have occurred.

[13] Other than the question of its relevance, the applicant’s evidence stands uncontested. The NUW made no submissions they or their members were not involved in the alleged stoppages of work nor that the stoppages did not involve unprotected industrial action.

[14] The uncontested evidence particularly that of Mr Grundy, the Distribution Centre Manager at Eastern Creek, establishes that on 2 December 2014, the NUW delegates on day shift raised a range of issues of concern at around 1:30pm.

[15] An employee meeting was to be organised for 4:30am the following day to cater for employees finishing night shift at 4:30am and those employees starting day shift at 5:00am.

[16] After the afternoon shift had commenced at 2:30pm there was a rumour that the afternoon shift would stop work at 8:00pm. At around 5 minutes to 8:00 that evening employees started to leave the site and gather at the car park. Three NUW employee delegates were present in the car park.

[17] At approximately 8:05pm Ms M Bernardi, an NUW organiser, arrived and addressed the employees. At 8:15pm another NUW organiser, Mr J Nero, arrived in the car park.

[18] At around 8:45pm the organisers and site delegates met with Coles management and raised three issues:

1. Team managers doing the work of team members.
2. Preference in overtime not being given to permanent employees as opposed to agency casuals.
3. Alleged false comments made by management about site delegates.

[19] At 9:15pm the organisers again met with employees. Subsequently around 47 employees did not return to work while approximately 40 employees continued working, including the 10 employees on night shift.

[20] At 4:30am the day shift employees met in the car park. The two NUW organisers were present, together with the day shift site delegates. The organisers addressed the employees. The day shift employees did not commence work at their starting time of 5:00am, but commenced four hours later at 9:00am.

[21] On the basis of this evidence, I conclude that the work stoppages on 2nd and 3rd of December 2014, for two periods of four hours, involving an afternoon and day shift, were unprotected industrial action.

[22] The industrial action does not fall within any of the exclusions as described in s.19(2) of the Act. I further conclude that the action was instigated at the initiative of the NUW site delegates and supported and not discouraged by the NUW organisers present. Mr Grundy’s witness statement is testament to this. 2

Conclusion

[23] I now need to consider whether orders, if any, in the form sought by Coles should issue.

[24] The Act mandates that the Fair Work Commission (the Commission) must make an order that industrial action stop, not occur or not be organised for a period where it appears unprotected industrial action is happening, threatened, impending, probable or being organised.

[25] There is no dispute that industrial action is not currently occurring or being organised. While Coles submits that industrial action is threatened and impending, as some of the issues leading to the industrial action remain unresolved, there is a possibility that further industrial action will occur. I am not satisfied that unprotected industrial action is currently threatened or impending. This leaves the question of whether further unprotected industrial action is probable.

[26] In pressing this point Coles relies upon previous conduct which has occurred at the Eastern Creek site undertaken by the NUW and its members.

[27] Coles points to the conduct of site delegates and organisers on 2nd and 3rd of December, in what Coles alleges was a pre-planned stoppage.

[28] Coles relies on the immediate attendance of NUW organisers to the site at 8:05pm and 8:15pm respectively on Tuesday, 2 December 2014, after commencement of the work stoppage at 8:00pm.

[29] Further, Coles relies on comments made by an organiser, and I quote:

“They’ve got away with this far too long, we won’t tolerate it.” 3

[30] Coles further relies on some employees setting up their own personal chairs in the car park as indicative of the industrial action being pre-planned.

[31] I am prepared to conclude that the industrial action was contemplated by the Tuesday afternoon shift when rumours which proved to be correct, circulated shortly after their commencement at 2:30pm that they would stop work at 8:00pm.

[32] The attendance of organisers to the site at around this time did not see a return to work. When asked that evening by management, the organisers would not confirm whether the oncoming day shift at 5:00am would or would not commence, thereafter the oncoming day workers commenced unlawful industrial action at 5:00am and continued to do so for a period of four hours.

[33] As stated above Coles, in pressing the probability of further industrial action occurring, relied on examples of previous stoppages by the NUW and its members at Eastern Creek which has been previously deemed unlawful by the Commission.

[34] This was exampled by a 28 March 2011 decision of the Commission, which granted a s.418 order 4 for a period of one month based on the probability of future unlawful action occurring and further, on 11 July 2012, a s.418 Order5 which was issued against the NUW and its members at various sites, including the Eastern Creek site.

[35] More recently and relevantly, was the finding of the Commission that unprotected industrial action had been organised and taken at the Eastern Creek site in June 2014 by the NUW and its members. 6 While no order issued on the basis that there was no current, impending, planned or probable industrial action, the Commission noted that a reoccurrence of, or a failure to follow the grievance procedure in the near future in relation to the dispute may tell against the NUW and its members in any further s.418 application.

[36] Now, in December 2014, another application for a s.418 order has been made by Coles, who submit that the issues are the same in respect to the engagement of casual agency employees and work days which incur penalties.

[37] On the limited evidence that is available in relation to a s.418 application I have no reason to doubt that the grievances raised by the employees on 2 December 2014 with management were genuine and of some substance.

[38] The witness evidence on behalf of Coles conceded that errors and mistakes had been made by management and other matters raised by delegates were now under investigation by Coles.

[39] I can readily understand the frustration of employees if prejudicial action is taken against them, contrary to previous management undertakings. However, our industrial relations system does not allow for work to stop over industrial disputes and in fact makes it unlawful in most circumstances. Safety issues or enterprise bargaining allow for work to stop lawfully, subject to certain procedures being followed.

[40] All enterprise agreements are required to contain dispute resolution procedures and those covered by an enterprise agreement are required to comply with the terms of the agreement, including the provisions relating to grievance procedures. I note the Agreement contains a grievance procedure at clause 8 - Grievance Procedure.

[41] The NUW did not explain why the grievance procedure was not followed on this occasion. No evidence was called by the NUW to defend or justify its actions or that of its members. No undertakings were provided by the NUW that further industrial action would not occur. In fact the submission was that Mr Valentin was instructed not to provide any undertakings, although he could obtain further instructions. As at this morning, no such undertakings have been provided to the Commission.

[42] I accept what Mr Valentin submits in that the decision to commence industrial action is a collective one and cannot be attributed to any individual. Mr Valentin stated from the bar table that no industrial action was planned for the next few days. This is of little comfort to the Commission in considering whether future industrial action is probable.

[43] I have concluded that recourse to unlawful work stoppages has become the modus operandi of the NUW and its members at the Eastern Creek Distribution Centre in default of adhering to the grievance procedure when disputes arise, which they invariable do. Whereas the uncontested evidence states that an organiser concluded that “there was no point in talking” 7 further about a dispute and industrial action then follows it clearly evinces an intention not to follow the grievance procedure.

[44] On this basis I have concluded that there is a future risk and propensity of the NUW and its members at Eastern Creek to engage in unlawful work stoppages when grievances arise at the workplace. There being no evidence provided by an NUW official or NUW member employee explaining why the grievance procedure was not followed on 2 or 3 December 2014 and there being no undertaking provided by the NUW or its members to follow the grievance procedure and no undertaking that work stoppages will not occur over grievances other than over the next few days, it appears to the Commission that unprotected industrial action is probable and an order will issue against the NUW and its members with one exception.

[45] I note that the evidence of Mr Grundy was that not all employees took unlawful industrial action. Mr Grundy stated that at the commencement of the 8:00pm stoppage on 2 December 2014, around 40 employees continued working including the 10 employees on night shift, it is unknown if and how many of these employees were NUW members.

[46] The Order (PR558579) will only apply to NUW members who took unprotected industrial action on 2 and 3 December 2014. The Order will operate for a period of four months.

[47] I have had regard to the various comments made about the terms of the Order and have made some adjustments to the draft supplied following Mr Valentin’s comments and observations.

[48] If disputes cannot be settled at the workplace, the Agreement’s grievance procedure should be followed to its fullest extent which includes recourse to the Commission.

COMMISSIONER

Appearances:

Mr G Jolly on behalf of the applicant.

Mr M Valentin for the National Union of Workers.

Hearing details:

2014.

Sydney:

3 and 4 December.

 1   AE897242.

 2   Exhibit A1 witness statement of Mr Frederick Grundy.

 3   Exhibit A1 witness statement of Mr Frederick Grundy at paragraph 14.

 4   PR507891.

 5   Coles Group Supply Chain Pty Ltd v National Union of Workers[2012] FWA 6449.

 6   Coles Group Supply Chain Pty Ltd v National Union of Workers[2014] FWC 3876.

 7   Exhibit A1 witness statement of Mr Frederick Grundy at paragraph 31.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR558738>