GM Holden Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU)
[2013] FWC 9242
•26 NOVEMBER 2013
[2013] FWC 9242 |
FAIR WORK COMMISSION |
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; The Association of Professional Engineers, Scientists and Managers, Australia
(C2013/6806)
DEPUTY PRESIDENT GOOLEY | MELBOURNE, 26 NOVEMBER 2013 |
Alleged industrial action at GM Holden Ltd.
[1] On 14 November 2013 I issued s418 orders 1 and interim orders2 that Mr Chris Juresko, Mr Harry Kazoglou, Mr Nick Gouvousis and Mr Shaun Matthews, employees of GM Holden Ltd (Holden), cease taking industrial action. I declined to issue orders against the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) and other delegates and organisers. These are my reasons for those decisions.
Background
[2] Holden had determined that it needed to reduce its head count of employees and decided to offer voluntary redundancy packages. As insufficient employees in Victoria volunteered to take a redundancy package and after redeploying some employees, Holden determined that it was necessary to make some employees redundant.
[3] The Holden Enterprise Agreement 2011 in those circumstances required Holden, its employees, the Federation of Vehicle Industry Unions and senior employee representatives to negotiate an appropriate redundancy formula consistent with general automotive standards. 3 The parties had not reached an agreement on the compulsory redundancy package and that dispute had been the subject of separate proceedings before the Fair Work Commission (the Commission).
[4] Holden had advised the unions that it had selected the employees who were to be made redundant and the selected employees were to be advised on 15 November 2013.
The events of 14 November 2013
[5] On the morning of 14 November 2013 a notice was circulated to employees at Holden Engine Operations (HEO) advising them of a meeting at 8am for dayshift employees and at 2.30pm for afternoon shift employees. While these meetings would have occurred during working hours, Holden and the shop stewards agreed that the employees’ break time would be moved to enable the meetings to occur during the employees’ breaks. The 8am meeting was addressed by Mr Colin Williams, an organiser with the CEPU, and Mr Tony Hynds, an organiser with the AMWU. Also present at the meeting were Mr Chris Juresko, an AMWU Vehicle Division delegate, Mr Shaun Matthews, an AMWU Metals Division delegate and Mr Harry Kazoglou, an AMWU Vehicle Division delegate. 4
[6] It was not disputed that the meeting did not conclude at the end of the employees’ break and continued for a short time into normal working time. At the end of that meeting the vast majority of employees, who were present at the meeting, and the delegates did not return to work.
[7] A second meeting was called for pre production operations (PPO) employees at 9:30am. Present at that meeting were Mr Charlie Pandolfo, an organiser with the AMWU and Mr Juresko and Mr Gouvousis, AMWU Metals Division delegates. This meeting occurred during the employees’ break but it was not contested that the meeting did not conclude at the end of the employees’ break and continued for a short time into normal working time. Again at the end of the meeting, a majority of employees who were present at the meeting and the delegates did not return to work.
[8] A third meeting was called at the Proving Ground at 11:45 am. Again this meeting occurred during the employees’ break. Mr Glenn Oram, an AMWU organiser, addressed the meeting. The employees at the Proving Ground returned to work after the break.
[9] A fourth meeting of engineering and technical employees was held at 12 noon during the employees’ normal lunch break. Holden had earlier agreed that this meeting could occur. 5The meeting was addressed by Mr Charlie Pandolfo and Ms Sheryl Herrington from APESMA. Present at the meeting were Mr Mark Nicholls and Mr Sean Connolly both AMWU TSA division delegates. The employees returned to work after their break. Mr Nicholls who was rostered to work at 2.30pm did not attend work, instead he attended the hearing at 3pm.
[10] A fifth meeting was held at HEO at 2:30 pm. Mr Adam Schwegler, the CEPU delegate, addressed the meeting. The vast majority of employees who attended the meeting did not return to work after the meeting. Mr Schwegler told Ms Leiah Amore, the Human Resources business partner for HEOn that the employees had voted to take industrial action. Mr Schwegler attended the hearing at 3pm.
[11] It was not disputed that Mr Juresko, Mr Kazoglou, Mr Gouvousis and Mr Matthews were rostered to work on 14 November 2013 and left work without authorisation. While the meetings were approved by Holden or held during the employees’ break, it was not disputed that the employees’ actions in not returning to work after the meeting or break was unprotected industrial action.
[12] Mr Juresko and Mr Kazoglou were represented at the hearing and called no evidence to contradict the evidence that they were taking unprotected industrial action.
[13] Mr Gouvousis and Mr Matthews were not present at the hearing and were not represented. There was no evidence that the employees had been served with the application and the notice of listing. The evidence established however that both employees left the site and were taking industrial action.
[14] Mr Connolly, Mr Schwegler and Mr Nicholls were at work and attended the meetings. While the overwhelming majority of employees at the meeting that Mr Schwegler addressed took unprotected industrial action there was no evidence that Mr Schwegler took industrial action as he left work to attend the hearing. Mr Connolly and Mr Nicholls attended a pre-arranged meeting held during a break. They then attended the hearing. There is no evidence that any of these three employees took industrial action.
[15] Ms Frances Anderson advised from the bar table that it was Holden’s understanding that the employees would not return to work until Monday 18 November 2013. 6 Ms Melanie Francese gave evidence that she was told by one of the managers, Mr Chad Dodson at the PPO, that employees would not attend work on Friday.7
What is Holden seeking?
[16] Holden did not seek orders against employees generally, but sought orders that the AMWU, the CEPU and APESMA. Mr Williams, Mr Hynes, Mr Pandolfo, Mr Juresko, Mr Nicholls, Mr Schwegler, Mr Kazoglou, Mr Gouvousis, Mr Connolly, Mr Gibbins (the APESMA delegate) and Mr Jolly (the AMWU Vehicle Division delegate at the Proving Ground) cease taking and organising industrial action.
[17] At the hearing, Holden advised it did not seek orders against Mr Gibbins or Mr Jolly. 8
The issues
[18] The first issue to be decided was whether the organisers or their delegates were organising the industrial action and therefore the AMWU, the CEPU and APESMA were organising industrial action.
[19] The second issue to be decided is whether the named delegates were engaging in industrial action and whether they were threatening to engage in further industrial action.
The Submissions
[20] Ms Anderson submitted that the chain of events leads to the inescapable conclusion that the unions, their organisers and delegates had been party to and organised the industrial action. 9
[21] She submitted that the presence of the organisers at the meetings when they did not have permission to be on site, except for Ms Herrington, and the fact that at least the 8am meeting had initially been organised without the approval of Holden, should lead to an inference that there was an orchestrated campaign. Further it was submitted that it was too much of a coincidence for the meetings “simply to result in everyone en masse leaving the premises, if it had not been subject to discussion at the meeting.” 10 It was submitted that if the organisers and delegates had simply reported back on the outcome of the negotiations, then the employees would have returned to work.11 Further it was Ms Amore’s evidence that Mr Schwelger told her that the employees at the 2.30pm meeting had voted to go on strike.12 It was submitted that I should infer that this is what occurred at the other meetings. It was also submitted that I should infer that because those who could have contradicted this inference chose not to attend the hearing and give evidence, that the union organisers and delegates encouraged their members to take industrial action.13
[22] Ms Lucy Weber submitted that there was insufficient evidence to establish that the AMWU organised the industrial action. She further submitted that if there was an orchestrated campaign, as submitted by Holden, then the employees who attended the meeting conducted by Mr Oram and the second meeting conducted by Mr Pandolfo would also have gone on strike. It was further submitted that the only evidence that industrial action would continue was hearsay evidence.
[23] Ms Herrington submitted that she had attended a preapproved meeting and employees had returned to work. She submitted that no finding could be made that APESMA was organising industrial action.
[24] The CEPU did not attend the hearing.
Conclusion
[25] Section 418 of the Fair Work Act 2009 provides as follows:
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.
[26] The evidence established that organisers and delegates attended the meetings. However the meetings were either held with the agreement of Holden or were held during the employees’ breaks. Attending meetings to report back on negotiations between Holden and the unions at meetings approved by Holden or during the employees’ breaks is not by itself organising industrial action. The meetings went over time and that meant employees were absent from work without approval.
[27] There was no evidence that the organisers or delegates proposed, supported or encouraged the employees not to return to work after the meeting concluded. So much is evident from the examples of Mr Pandolfo attending two separate meetings, one where the employees took industrial action and one where the employees did not.
[28] Ms Herrington and Mr Gibbins of APESMA attended a meeting but no industrial action occurred after the meeting they attended.
[29] It was clear on the evidence that four of the delegates namely Mr Juresko, Mr Kazoglou, Mr Gouvousis and Mr Matthews were engaging in industrial action by leaving work without authorisation. That this action had an industrial character was not in dispute.
[30] Further there was evidence that the industrial action would continue. While that evidence was hearsay evidence, no evidence was called to contradict that evidence by those who were represented.
[31] I decided to issue orders directed to all four employees. In the case of Mr Gouvousis and Mr Matthews interim orders were issued as there was no evidence that they had been served with the application. Subsequently the interim orders were made final by consent. 14
[32] I declined to issue orders directed to Mr Connolly, Mr Schwegler and Mr Nicholls. There was insufficient evidence for me to conclude that Mr Connolly and Mr Nicholls took industrial action. It was not submitted that their attendance at the hearing was industrial action.
[33] Mr Schwegler, it was said, had organised industrial action by addressing the meeting and conducting a vote of employees. Merely addressing a meeting of employees does not of itself constitute organising industrial action. That Mr Schwegler advised Holden that the vote had occurred is not evidence that he conducted the vote or that he organised or encouraged employees to vote in favour of industrial action. It was not submitted that his attendance at the hearing was industrial action.
[34] It is clear that the question of whether unions are organising industrial action depends on the particular circumstances of the matter before the Commission.
[35] While the unions were involved in negotiations with Holden about the compulsory redundancies there is no evidence that they attended the meetings to do anything more than report back on the progress of those negotiations. Holden clearly recognised the importance of these report backs as it agreed to reschedule meal breaks to enable them to occur without the employees taking unprotected industrial action.
[36] There was no evidence or submissions made that industrial action in the past by these employees only occurred because the unions organised the industrial action. 15
[37] It was not contested that, at least at the meeting attended by Mr Schwegler, a vote was taken of employees to take industrial action. I am prepared to presume for the purpose of this decision that this occurred at the other meetings where employees decided to not return to work. However I am not prepared to conclude on the material before me that the unions or their delegates or organisers encouraged employees to go on strike.
[38] I am not prepared to infer on the evidence that the AMWU, CEPU or APESMA or the organisers or delegates organised the industrial action and in those circumstances I declined to make the orders that the unions or their organisers or their delegates in their capacity as delegates stop organising industrial action and not recommence or continue to organise industrial action.
DEPUTY PRESIDENT
Appearances:
F. Anderson for GM Holden Ltd.
L. Weber for AMWU Vehicle Division, Mr C Juresko, Mr H Kazoglou and Mr A. Jolly.
J. Wieledek for AMWU Metals and PSA Division, Mr C Nicholls and Mr S Connolly.
S. Herrington for APESMA and Mr S Gibbins.
A. Schwegler on his own behalf.
Hearing details:
2013.
Melbourne:
14 and 19 November.
1 PR544575
2 PR544576
3 Holden Enterprise Agreement 2011 at clause 4.16
4 Transcript PN 195
5 Transcript PN 323
6 Transcript PN 111
7 Transcript PN 255
8 Transcript PN 88
9 Transcript PN 459
10 Transcript PN 461
11 Ibid
12 Transcript PN 462
13 Ibid
14 PR544723
15 MUA v Patricks Stevedores Holdings Pty Limited [2013] FWCFB 7736 at [38]-[39]
Printed by authority of the Commonwealth Government Printer
<Price code C, PR544934>
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