GM Holden Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU)

[2013] FWC 9211

[2013] FWC 9211

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.418—Industrial action

GM Holden Ltd
v
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia;
National Union of Workers;
The Australian Workers Union;
The Association of Professional Engineers, Scientists and Managers, Australia
(C2013/7243)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 26 NOVEMBER 2013

Alleged industrial action at GM Holden Ltd.

[1] On 18 November 2013, I issued interim s.418 orders 1 directed at employees of GM Holden Ltd (Holden) who had not attended and performed work as rostered on 18 November 2013. I declined to issue orders against the AMWU, the CEPU, APESMA, the AWU and the NUW. These are my reasons for those decisions.

[2] On 14 November 2013, I had issued orders directed at four employees to stop industrial action. The background to the dispute is set out in that decision. 2

[3] On 14 November 2013, some employees of Holden took unprotected industrial action and that action continued on 15 November 2013.

[4] Employees of Holden returned to the site at 6:30am on 18 November 2013 and attended meetings called to hear a report back by Mr Dave Smith, the Divisional Secretary of the AMWU Vehicle Division and the National Chairperson of the Federation of Vehicle Industry Unions (FVIU), on negotiations between the unions and Holden over the compulsory redundancy package. The meetings had been approved by Holden.

[5] Immediately after the meeting the employees of Holden at Holden Engineering Operations (HEO) left work. Mr Chris Juresko, Mr Harry Kazoglou and Mr Shaun Matthews remained at work.

[6] Mr Christopher Meallin, the Human Resources Manager Policy and Governance, gave evidence that he observed the meeting. He saw Mr Smith at the meeting and also present were Mr Juresko, Mr Connelly and Mr Kazoglou. 3 He saw the workers take two votes both which appeared to be nearly unanimous.4 He could not hear what Mr Smith was saying at the meeting.5

[7] Mr Meallin gave evidence of the history of negotiations for agreements and said that it was the practice for Holden to negotiate with a single bargaining unit which included the six major unions. He said the Federal Secretary of the AMWU Vehicle Division was the lead negotiator and was the chairperson of the Federation of Vehicle Industry Unions. 6

[8] He gave evidence that for local issues, Holden deals with the shop stewards who could refer matters to their officials. 7

[9] He also gave evidence that if there was industrial action by Holden employees there was initial contact with the shop stewards “but whenever industrial action is involved the relevant union official would be very much involved at an early stage.” 8

[10] Mr Michael Roberts the area manager for the supply chain group at the HEO observed the meeting. He identified Mr Smith as addressing the meeting. He heard Mr Smith say that “people working today would be donating money” 9 and he also told them about what had occurred in the conference before the Commission the previous day.10 After being told by Mr Glen Oram to leave the union meeting Mr Roberts observed the meeting from a distance. He too saw two unanimous votes of employees and after the second vote the meeting dispersed but the employees did not return to work.11

[11] He was told by another employee who had been at the meeting that the employees would not be back at work until Wednesday morning. 12

[12] Employees employed in the engineering Pre Production Operations and Powertrain also left work after the meeting.

[13] Employees at the National Distribution Centre and the Bulk Distribution Centre had to date not participated in any unprotected industrial action. On 15 November 2013, Mr Oram, an AMWU Vehicle Division organiser, contacted Ms Melanie Samargis, the HR Business partner for Holden Service Parts Operation (HSPO), and asked to be able to hold a meeting with employees. Holden arranged for tea breaks to be moved and the meeting took place at 1.55pm at the Bulk Distribution Centre and 2.45pm at the National Distribution Centre. Ms Samargis spoke to Mr Oram after the meetings and was told a resolution had been passed by employees but Mr Oram would not tell her what the resolution was. After the meeting, Ms Samargis was told that there were reports coming from the shop floor that there would not be a workforce present at work on Monday morning. 13 While some employees attended work on Monday morning, the majority of the workforce did not attend work.

[14] Ms Melanie Francese, HR Manager for engineering and Powertrain, gave evidence that she observed the meeting of employees at 12 noon conducted by Mr Charlie Pondolfo from the AMWU and Ms Sharelle Herrington from APESMA. In addition Mr Scott Gibbins, an APESMA delegate, and Mr Sean Connelly were present at the meeting. As far as she could see Ms Herrington and Mr Pondolfo were running the meeting. At the time of the hearing it was not clear which employees had then left the workplace.

What was Holden seeking?

[15] Holden sought orders that the AMWU, the CEPU, the NUW, the AWU and APESMA stop organising industrial action and that their employees, who were members of the unions covered by the Holden Enterprise Agreement 2011 (the Agreement), stop taking industrial action and return to work and perform work as rostered.

Findings

[16] Holden sought orders against the AWU. Holden witnesses accepted that no AWU official attended any of the sites and the AWU does not have a delegate. The evidence about the AWU’s involvement is scant. It is not clear on the evidence how many members the AWU has and whether any of them took industrial action. There is no evidence of the AWU officials being present at meetings or even being in communication with their members.

[17] It was submitted that Mr Smith was an agent of the other unions in the FVIU. 14 No information was produced about this organisation other than the unions in it formed a single bargaining unit for the purpose of enterprise bargaining. There was no evidence that Mr Smith had any authority either actual or ostensible to bind the other unions. I am not prepared to find that Mr Smith was the agent of the AWU or any of the other unions.

[18] On the evidence before the Commission no finding could be made that the AWU was organising industrial action.

[19] Further, there was no evidence of the involvement of any NUW official in the meetings on 15 November 2013. Whilst I am prepared to infer that the employees at the National Distribution Centre and Bulk Distribution Centre resolved on 15 November 2013 to stop work on 18 November 2013, there is no evidence of an NUW organiser being present at the meeting. Ms Samargis referred to organisers being present but she did not identify any NUW organiser. While Mr O’Grady submitted that Mr Rob Dent had been present at the HSPO, Ms Samargis did not identify him as being present. She also did not give any evidence that there were any NUW delegates present at the meeting.

[20] As I have found that Mr Smith is not an agent of the other unions, to make an order that the NUW stop organising industrial action, I would need to make a finding that the NUW was organising the industrial action or was proposing to organise industrial action. I am not able to make such a fining on the evidence before me. The mere presence of an organiser at a meeting of employees to report back on negotiations, assuming for the moment that the evidence established Mr Dent was present, is not enough to find that the NUW was organising the industrial action.

[21] Similarly there was no evidence that the CEPU had taken any role in organising the stoppage of work on 18 November 2013.

[22] While Ms Herrington was present at the meeting on 18 November 2013, again I am unable to conclude on the evidence that APESMA organised the industrial action.

[23] Mr Smith is an official of the AMWU. If he organised the industrial action then orders would be made against the AMWU. Holden had agreed that Mr Smith could report back to employees on the negotiations. Mr O’Grady relied on the statement of Mr Smith overheard by Mr Roberts. However, I am not prepared to draw the inference sought to be drawn by Mr O’Grady. There is nothing in that statement that suggests the Mr Smith was urging or encouraging employees to take industrial action.

[24] It was clear that an overwhelming majority of employees covered by the Agreement were taking industrial action. There was no evidence that the employees had been advised of the application and that orders were sought against them. Further the unions, when announcing their appearances, advised that they did not appear for individual employees.

[25] In the circumstances and given the continuing industrial action by employees, I determined that as I would be unable to deal with the application directed at the employees within 48 hours, that I would issue interim orders directed at those employees who had been rostered to work on 18 November 2013 who had taken industrial action by not attending and performing work as rostered. While Holden only sought orders against those employees who were members of the unions, no rational for excluding non union members who had taken industrial action from any order was provided.

[26] I was not prepared to make an order directed at all employees as the evidence established that some employees remained at work and were therefore not taking industrial action.

[27] At the further hearing of this matter, I was advised that employees had returned to work and Holden was not pressing the making of final orders against employees and that the application would be discontinued. Accordingly, no further order was made and the interim order expired at 5pm on 20 November 2013.

DEPUTY PRESIDENT

Appearances:

Mr P. O’Grady - GM Holden Ltd

Mr L. Buntman - AWU

Mr D. Pegg and Ms E. Barrett - NUW

Mr D. Vroland and Ms L. Weber – AMWU

Ms M. Anthony – APESMA

Hearing details:

2013.

Melbourne:

18 and 20 November.

 1   PR544692

 2   [2013] FWC 9242

 3   Transcript PN 125-127.

 4   Ibid PN 132.

 5   Ibid PN 171.

 6   Ibid PN 70.

 7   Ibid PN 73.

 8   Ibid PN 79.

 9   Ibid PN 236.

 10   Ibid.

 11   Ibid PN 245.

 12   Ibid PN 248.

 13   Ibid PN 333.

 14   Ibid PN 426 and 430.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR544890>