Hitachi Construction Machinery (Australia) Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union

[2018] FWC 6835

[2018] FWC 6835

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action

Hitachi Construction Machinery (Australia) Pty Ltd
v
Construction, Forestry, Maritime, Mining and Energy Union
(C2018/5734)

COMMISSIONER SAUNDERS NEWCASTLE, 6 NOVEMBER 2018

Industrial action impending or probable – health or safety exception not established on the evidence – s 418 order issued.

[1] Hitachi Construction Machinery (Australia) Pty Ltd (Hitachi) seeks an order pursuant to section 418(1) of the Fair Work Act 2009 (Cth) (Act) that certain “industrial action” not occur and not be organised. The order sought is directed to the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), certain representatives of the CFMMEU and those service employees of Hitachi who have the CFMMEU as their bargaining representative (Employees) in relation to bargaining for an enterprise agreement to replace the Hitachi ConstructionMachinery (Australia) Pty Ltd Service Enterprise Agreement 2014(Enterprise Agreement).

[2] Hitachi’s application for an order under s 418 of the Act was filed on 14 October 2018 (Application). On 15 October 2018, I made interim orders by consent, pending the final hearing of the Application, 1 together with orders for substituted service.2

[3] The final hearing was conducted on 1 November 2018. Mr Filipe Cruz, Hitachi Service and Parts Manager, gave evidence for Hitachi. Mr Jefffrey Drayton, Vice President of the CFMMEU, Northern Mining & NSW Energy District, gave evidence in opposition to the Application, but was not required for cross examination.

Background

[4] The factual background to the Application is largely uncontroversial.

[5] The Muswellbrook branch of Hitachi supplies mining and construction equipment and related services, parts and technical support. 3

[6] The Enterprise Agreement covers service employees (classifications 4 S to 1 S) who work at the Muswellbrook branch of Hitachi, are based at 27-35 Thomas Mitchell Drive, Muswellbrook, and who perform work in the service workshop or in locations designated by the Muswellbrook branch from time to time. 4 Although some of the service employees engaged by the Muswellbrook branch of Hitachi work predominantly at the service workshop at the Muswellbrook branch, most of them spend a significant amount of their working time at different coal mines and other work sites around the Hunter Region.5 At those sites, the service employees service and/or repair Hitachi equipment and machinery.

[7] Most of the service employees report to the Muswellbrook branch of Hitachi at the commencement of their shift tocollect a Hitachi-provided vehicle, travel to the customer’s site in that vehicle, work on one or more sites and then return the Hitachi vehicle to the Muswellbrook Branch at theconclusion of their shift. The service employees are paid for this traveltime between the Muswellbrook branch and the sites on which they conduct work. Other service employees are permitted to drive a Hitachi-provided vehicle from their home directly to site and back home each day without attending the Muswellbrook branch at the start or end of their shift.

[8] It is uncommon for service employees to leave a customer’s site during the course of a work shift. It is also uncommon for service employees to return to the Muswellbrook Branch during a shift, but they do so on occasions, such as when the work on a site has finished for the day and the service employee is assigned to work on another site where additional tooling is required and needs to be collected from the Muswellbrook branch. Another example of where service employees attend the Muswellbrook branch during a shift is where a decision is made that one or more service employees should undertake repair or servicing work on a particular part or component in the workshop at the Muswellbrook branch, rather than on site.

[9] On 24 May 20018, the Fair Work Commission (Commission) made a protected action ballot order in relation to the Employees. The Australian Electoral Commission conducted the ballot and on 25 June 2018, declared that the proposed industrial action had been approved by the Employees. On 30 July 2018, the Commission extended the period during which industrial action was authorised by the ballot for a further 30 days. 6

[10] Since about 18 July 2018, the CFMMEU has served in excess of 20 s 414 notices of its organisation of, and the intention of the Employees to engage in, protected industrial action. The description of the purported protected industrial action in each notice (other than the dates of the action) has been the same:

“Twelve (12) stoppages of work of two (2) hours duration that may be consecutive and will start on [insert date] at 12.00 am, 2.00 am, 4.00 am, 6.00 am, 8.00 am, 10.00 am, 12.00 pm, 2.00 pm, 4.00 pm, 6.00 pm, 8.00 pm and 10.00 pm.”

[11] The most recent s 414 notice was served on Hitachi on 24 October 2018, covering the period 31 October 2018 to 7 November 2018 (inclusive). It describes the purported protected industrial action in the same terms as the previous notices.

Issue in dispute

[12] The issue which arises on this Application concerns the fact that numerous Employees who on a day-to-day basis travel to and attend at customer sites to repair or service various Hitachi equipment and machinery, have on a consistent basis since 18 September 2018 been indicating an intention to participate in one or more of the notified two hour stoppages of work, but have ceased work on-site at the customer’s site and travelled back to the Muswellbrook branch before the notified commencement time of the two hour stoppage. Having participated in the two hour stoppage at the Muswellbrook branch (or elsewhere), the Employees then travelled back to the customer’s site after the notified cessation time of the two hour stoppage to resume work. The effect of this conduct has been that for a period of travel time before and after the notified commencement and cessation time of a two hour stoppage (ranging mostly from 15-90 minutes each way), numerous Employees have not been on-site performing work, but have rather been travelling in a vehicle (sometimes a Hitachi pool vehicle, sometimes another kind of vehicle). For example, on 23 September 2018, one of the Employees, Mr Garland, left his assigned work site (the Liddell mine) at 9:30am in order to travel to the Muswellbrook branch and commence engaging in two consecutive two hour stoppages of work commencing at 10am and finishing at 2pm. Between 2pm and 2:45pm, Mr Garland refuelled the Hitachi ute and drove from the Muswellbrook branch back to his assigned site work site (the Liddell mine). Mr Garland then left the Liddell mine for a second time at 3:30pm and travelled back to the Muswellbrook branch arriving at 4pm, to participate in a further notified two hour stoppage of work from 4pm until 6pm. Mr Garland used his assigned Hitachi vehicle for all of this travel.

[13] The question before the Commission is whether these periods of travel before and after a notified two hour stoppage (the Impugned Conduct), are “industrial action” within the meaning of section 19 of the Act. It is accepted by the CFMMEU, CFMMEU Representative and the Employees that if that question is answered in the “affirmative”, then a section 418 order should be made.

[14] It is not disputed and I am satisfied on the evidence that:

(a) the Impugned Conduct of the Employees which Hitachi contends is “industrial action”, is being organised by the CFMMEU and the CFMMEU Representatives; and

(b) the Impugned Conduct of the Employees, if it be “industrial action”, is at least impending or probable.

Relevant provisions of the Act

[15] Section 418(1) of the Act provides:

“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.”

[16] The expression “industrial action” is defined in s 19 of the Act. It provides:

“(1) Industrial action means action of any of the following kinds:

(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;

(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

(d) the lockout of employees from their employment by the employer of the employees.

(2) However, industrial action does not include the following:

(a) action by employees that is authorised or agreed to by the employer of the employees;

(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;

(c) action by an employee if:

(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; or

(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.”

[17] The “work” referred to in s 19 is not “work” generally. It is the “work” performed by an employee who is taking the relevant action. 7

[18] Paragraph 19(1)(a) of the Act has two elements. The first element is that the performance of work by the employee must be in a manner different from that in which it is customarily performed. 8 It is therefore necessary to identify work normally performed by the relevant employees and the manner in which it is customarily performed.9 The second element, which is an alternative to the first, is that there must be the adoption of a practice in relation to the work. In both instances, the action must result in a restriction or limitation on, or a delay in, the performance of the work.10

[19] Paragraph 19(1)(b) is directed to the conduct of employees who engage in action limiting the work they do or the circumstances in which they offer to do it. 11

CFMMEU’s submissions

[20] The CFMMEU contends that the conduct of the Employees in leaving an assigned site prior to the notified commencement time of the stoppage of work, in order to travel to and arrive at the Muswellbrook workshop at the notified commencement time of the stoppage of work, is the performance of work in a manner consistent with how it is customarily performed because such travel time is considered and paid for as work by Hitachi, and it is not the adoption of a practice in relation to work, the result of which would be a restriction or limitation on, or a delay in, the performance of work.

[21] In support of its argument that the Impugned Conduct is not “industrial action” within the meaning of s 19 of the Act because travel between the Muswellbrook branch to a site is “work”, the CFMMEU relies on clauses 10 and 11 of the Enterprise Agreement:

“10 Site Work

10.1 Considering the nature of HCA’s business, as well as working at HCA’s site at 27-35 Thomas Mitchell Drive, Muswellbrook, Employees will also be required to work on other sites designated by HCA from time to time (‘Site Work’).

11. Travelling

11.1 All Employees required to travel for the purposes relating to HCA business will be paid at their applicable hourly rate of pay as set out in Appendix 1. All travel will be paid as time worked…”

[22] The CFMMEU points to the fact that Hitachi dictates the start and finish place of work for many of the service employees as the Muswellbrook workshop. In light of this, the CFMMEU contends that travel to a customer site for the purpose of Hitachi’s business includes travel back to the Muswellbrook workshop. Any other interpretation of “travel” in clause 11, so it is contended, would result in service employees travelling to site and being paid for such travel, only to be left on site with no means of travelling back to the Muswellbrook workshop, their finishing place of work. The CFMMEU submits that the service employees perform “work” in the form of travel up to the notified commencement time of the protected industrial action.

[23] The CFMMEU also submits that the conduct of the Employees in presenting themselves ready, willing and able to perform work at the Muswellbrook workshop at the notified commencement time of protected industrial action is the performance of work in a manner that is consistent with how it is customarily performed, as the start place of work is the Muswellbrook workshop, and therefore there has been no restriction or limitation on, or a delay in, the performance of work.

[24] The CFMMEU relies on a decision of Chief Industrial Magistrate Miller, 12 in which his Honour held that time spent travelling by two employees to attend a stop work meeting (including the time to perform shut down and start up procedures) was not to be taken into account for the purposes of determining the duration of the stop work meeting. As a result, the two employees were entitled to be paid the additional amount sought by them.

[25] Alternatively, the CFMMEU submits that the action of the Employees in travelling back to the Muswellbrook workshop was based on a reasonable concern of the Employees about an imminent risk to their health or safety and the Employees did not reasonably fail to comply with a direction of Hitachi to perform other available work, with the result that the impugned conduct falls within the exception to “industrial action” in s 19(2)(c) of the Act. In support of this argument, the CFMMEU points to the requirement imposed by Hitachi on the Employees to leave site when they are engaging in protected industrial action but not to drive vehicles back to the Muswellbrook workshop either before or during protected industrial action, with full knowledge that the Employees had no means of travelling off site other than in an Hitachi vehicle. The CFMMEU submits that this gave rise to the Employees’ reasonable concerns about an imminent risk to their health and safety.

Is the Impugned Conduct “industrial action”?

Section 19(1) of the Act

[26] I agree with Hitachi’s contention that the Impugned Conduct is “industrial action” within the meaning of s 19(1) of the Act, in that it is:

(a) a “ban, limitation or restriction on the performance of work” (section 19(1)(b)), in the sense that the Employees have left the work site to which they have been assigned and engaged in alternative, non-directed activities (driving to and from the Muswellbrook branch), such that the actual “performance of work” at the customer site is banned, limited or restricted; and/or

(b) the “adoption of a practice in relation to work…the result of which is a restriction or limitation on, or a delay in, the performance of the work” (section 19(1)(a)), inthe sense that the unnecessary travelling to and from the Muswellbrook branch during a shift is a practice which relates to the performance ofwork (at the customer work site) and it results in a restriction, limitation or delayin the performance of that work.

[27] The work normally performed by most of the Employees includes attending the Muswellbrook branch at the commencement and conclusion of their shift and travelling from the Muswellbrook branch to one or more particular sites to which they have been assigned by Hitachi and then travelling back from a site to the Muswellbrook branch at the end of their shift. The Employees are paid for such travel time pursuant to clause 11.1 of the Enterprise Agreement because they are required to undertake the “travel for purposes relating to HCA business”.

[28] The CFMMEU contends that in addition to the travel described in the previous paragraph, there is a custom and practice for the Employees to travel from site to the Muswellbrook branch and back again at any time they choose. No Employees were called to give evidence in the proceedings. In support of this custom and practice argument, the CFMMEU relies on the following parts of a witness statement made by Mr Nigel Agnew, Branch Manager – Muswellbrook and Gunnedah branches of Hitachi, in other proceedings before the Commission: 13

“[18] Service Employees who mostly work in the field attend the Service Workshop for a variety of reasons. Most typically this includes:

(a) to load or unload tools – sometimes, during a job and employee needs to come back to the Branch to collect more different tools or tooling for the job; and

(b) to execute small tasks within the shed. Part of a job on site may involve the Service Employee leaving the client site, executing small parts of the job back at the workshop, and travelling back to the client site. An employee may decide to pull apart a component or small item and bring it back to the Muswellbrook Branch to work on it, because it is a more pleasant environment (for example, if it is very hot or raining) or if it is preferable to do the work in the workshop due to the tooling available.

[19] Where a Service Employee attends the Service Workshop to perform work, Hitachi records that the employee is working in the Workshop on a document known as a “Daily Task Sheet”. The “Daily Task Sheet” is utilised by Hitachi on a daily basis at the Muswellbrook Branch Service Workshop and is prepared by Steve Smith, the Service Workshop Supervisor. It is used to record information that can be used by people scheduled to work in the Workshop regarding what they are to do for the day. Hitachi then keeps the Daily Task Sheets as a record.

[20] … On my review of the Daily Task Sheets for this period [1 to 29 February 2016], I observed the following:

(a) … the following Service Employees attended the Service Workshop to perform work:

(i) Steve Mapp (on 3, 4, 5 February 2016);

(ii) Robert Renfrew (4, 5 February 2016);

(iii) Ben Crawford (5, 9, 10, 11, 19, 23, 24, 25, 26, 29 February 2016);

(iv) Graeme Cooper (11 February 2016);

(v) Jason Franklin (11 February 2016);

(vi) Peter Andrews (22, 23 February 2016);

(vii) Tim Elliott (22, 23 February 2016);

(viii) Andrew Wilson (22 February 2016);

(ix) Ken Porthouse (23, 25 February 2016);

(x) Sam Tate (23, 24, 25 February 2016);

(xi) Phil Baldwin (24, 25 February 2016);

(xii) Mel Hughes (24, 25 February 2016);

(xiii) Dave Pattemore (24 February 2016);

(xiv) Phil Stevenson (24 February 2016);

(xv) Steve Turner (24 February 2016);

(xvi) Bill Edge (25, 26 February 2016);

(xvii) Dave Garth (25 February 2016);

(xviii) Ben Chapman (26 February 2016); and

(xix) Robert Cox (26 February 2016)…

[21] …The Daily cap timesheets for this period [two months prior to 10 February 2017] show that…

(b) Shane Towers recorded nine instances of having worked at “The Branch” during the period, and describes the activities undertaken by him on various timesheets as “Planning for shut”, “Sort parts for shut”, “Close out EX-101 shut down paper work” and “Parts sorting & planning for EX-103 shut”…”

[29] I do not accept the CFMMEU’s contention that the evidence establishes the existence of a custom and practice for the Employees to travel from site to the Muswellbrook branch and back again at any time they choose. First, Mr Agnew’s witness statement was prepared in connection with different proceedings in which different issues were live between the parties. Secondly, Mr Agnew’s witness statement is silent in relation to any process or procedure that must be followed after an employee decides that it might be a good idea to return to the Muswellbrook branch to undertake a particular piece of work. Thirdly, Mr Cruz gave evidence, which I accept, that service employees should, according to the established chain of command, speak to their supervisor if they wish to return from site to the Muswellbrook workshop for a particular reason. Although Mr Cruz is not aware of any Hitachi policy which governs this type of situation, it is inherently probable that the method of communication and authorisation described by Mr Cruz applies to the service employees. Were that not the case, the service technicians would be at liberty to leave a client site whenever they wished to undertake work in the Muswellbrook workshop, notwithstanding that doing so may be inefficient, uncommercial and/or unreasonable. Fourthly, the alleged custom and practice, if it existed, has been superseded by express directions given to the Employees in relation to the recent industrial action. 14 Not only has Hitachi not requested Employees to leave customer sites to travel elsewhere or return to the Muswellbrook branch,15 Hitachi has expressly directed Employees not to do this.16

[30] For the reasons I have given, I find that the work customarily performed by the Employees:

(a) includes travel from the Muswellbrook branch to a work site at the commencement of a shift, travel from a work site to the Muswellbrook branch at the conclusion of a shift, and travel during a shift from a work site to another work site or back to the Muswellbrook branch, where there is an operational need for such travel and it has been authorised by the Employee’s supervisor or an appropriate manager;

(b) but does not include the Employees travelling between a work site to which they have been assigned and the Hitachi branch for a reason which is not consistent with the operational needs of Hitachi’s business and in circumstances where the travel has not been approved by the Employee’s supervisor or an appropriate manager.

[31] It follows that the Impugned Conduct is not work customarily performed by the Employees.

[32] There is no doubt that travel can constitute work for the Employees. However, in order for travel to be work or “paid as time worked” under clause 11.1 of the Enterprise Agreement, it must be “required … for purposes relating to HCA business”. The Impugned Conduct is not “travel for purposes relating to HCA business”; Hitachi has no operational need for the Employees to travel back to the Hitachi branch during or prior to a notified stoppage of work. The Employees have undertaken such travel for their own purposes, without any request, direction or approval to do so by Hitachi.

[33] The fact that, as a matter of practice, many of the Employees start and finish their shift at the Muswellbrook branch, does not permit them to return to the branch mid-shift for the purposes of engaging in a notified stoppage of work, especially when they are specifically directed not to do this.

[34] Further, and in any event, even if the travel was regarded as the “performance of work”, it would still be captured by section 19(1)(a) of the Act: it would be the “performance of work…in a manner different from that in which it is customarily performed… the result of which is a restriction or limitation on, or a delay in, the performance of the work”.The Employees do not travel away from a work site in the middle of the day, unless there is a specific operational need to do so. Nor do the Employees return to the Muswellbrook branch mid-shift, unless there is a specific operational need to do so. The consequence of the Employees engaging in the Impugned Conduct is that they are not at the customer work site, performing productive repair/servicing work as would otherwise be the case if they were not travelling. This is a restriction, limitation or delay in the performance of that work.

[35] Finally, I am not persuaded that the decision of James Coward and Derek Wiley v Bulga Coal Management Pty Ltd 17 is of any assistance in the present case. That decision concerned the interpretation of a clause in an enterprise agreement which provided that payment was not to be made to an employee who was not at work for all or part of the day as a result of industrial action, except “where there is a stop work meeting of one hour or less”. Employees attended a stop work meeting which went for 50 minutes, but were absent from their working area for more than an hour because it took them time to shut down machinery and travel to and from the meeting. Chief Industrial Magistrate Miller held that the employees attended a stop work meeting of less than one hour duration, with the result that they were entitled to be paid for the day. The issues in the present case are quite different; they focus on the definition of “industrial action” in the Act and whether travel in particular circumstances meets that definition.

Is the Impugned Conduct agreed or authorised (s 19(2)(a) of the Act)?

[36] The CFMMEU withdrew its contention that the Impugned Conduct was agreed or authorised. In my view, that was an appropriate concession, particularly having regard to the instructions and directives given by Hitachi to the Employees.

Is the Impugned Conduct based on a reasonable concern of the Employee about an imminent risk to his or her health or safety (s 19(2)(c) of the Act)?

[37] The following facts are relevant to this contention.

[38] In early July 2018, the CFMMEU gave Hitachi its first notice of intention for the Employees to take a series of two hour stoppages of work. In response, Hitachi distributed a letter dated 5 July 2018 to all service employees, which provided (in part):

“… For those participating in industrial action, this is unpaid time and you will be required to leave any worksites by your own means during these periods…

If the stoppage is for 2-hours, you must return to work and be ready for duty at the 2-hour mark. This includes logging back in to your work site.

…

I’m in the CFMEU, can I sit in the lunchroom or stay in the car park during the stoppage?

If you participate you are not in permitted to remain on Hitachi property or client sites while the action is being undertaken – this includes the lunch room and the carpark…”

[39] The information and instructions set out in the letter dated 5 July 2018 were reinforced by Hitachi in phone calls made to a majority but not all of the service employees over the period from 5 July to 12 July 2018. Roster Supervisors used a pre-prepared script in an attempt to ensure consistency and clarity in their communications with the service employees during this period of time. The script included the following messages:

(a) “Any employee who participates in the stoppage will not be permitted on Hitachi property and worksites – this includes the lunchroom and the carpark including our customer sites”;

(b) “Any employee who participates in the stoppage will not be permitted to the use of Hitachi vehicles”; and

(c) “If Rostered on site during this time: (1) vehicle to be returned to the Visitors car park and parked safely and secured, (2) vehicle to be locked and the Employee to retain keys, the Company will use the spare keys, to collect the vehicle if required, (3) ensure you have arranged a method of transport to have you collected and returned to and from site safely, (4) when waiting for transport, please ensure you wait off the road, preferably in a well-lit and/or visible location”.

[40] Mr Drayton gave evidence that he and unnamed “members” of the CFMMEU were concerned with the direction in the 5 July 2018 notice that those participating were not permitted to remain on Hitachi property or on its client’s sites (including lunch rooms and car parks), whilst the protected industrial action was being undertaken. 18 Mr Drayton described this concern as follows in his witness statement:19

“… given the mine sites are vast facilities where access roads are usually lengthy, there was no system in place for the employees to safely enter and exit the roads on foot (i.e. no lighting and no footpath)…”

[41] By letter dated 6 July 2018, the CFMMEU responded to Hitachi’s directives to the service employees. In that letter the CFMMEU raised a number of concerns, including the following:

“… I identify that, for a majority of employees, their commencing and ceasing location is at the Muswellbrook Workshop. That is where they would appropriately commence and cease for the purposes of the protected industrial action.

Of greater concern is the instruction that those participating are not permitted to remain on Hitachi property, or its client’s sites, while the protected industrial action is being undertaken. This includes the lunch rooms and car parks. You will note that mine sites are facilities where there is a lengthy access and egress. Mine sites do not have a system by which employees can safely enter and exit the roads of the mine site by foot. To my knowledge there is no mine site that has designated walking paths, nor are many of them well lit. This requires exit and entry by motor vehicle as the requirement to walk would be unsafe.

As the process you adopt will require employees to alight the mine site by foot, this will produce a system of work that is unsafe and fails to protect the work, health and safety of those exercising their legitimate right to take protected industrial action…

Persons enter and exit the mine sites at all hours. Employees would be required to walk on the roads in the main, when leaving. Mine employees are often fatigued, especially during the night and there is a significant slip-trip or traffic hazard for those walking into and out of a mine site.

Should an employee be injured, we will be asking the Resource Regulator to take action specifically against your organisation and yourself for giving these instructions. We will also be pursuing the matters with your clients. In the event of any injury, we will seek enforcement action via prosecution or other penalty against them. ”

[42] Mr Drayton did not receive a response to his 6 July 2018 letter.

[43] As events transpired, the industrial action did not commence until 18 July 2018.

[44] In the period from 18 July 2018 until about 17 September 2018, the majority of the Employees generally adhered to the directives set out in the 5 July 2018 letter and the script to continue working until the commencement of the notified stoppage and ensure service vehicles were left on site parked and locked safely and securely. However, on 30-31 July 2018, about five Employees did not adhere to Hitachi’s directives and instead drove Hitachi vehicles during the period of industrial action and/or left their assigned job site before the notified stoppage commencement time. Hitachi sent letters to each of these Employees insisting on compliance with the directives. By letter dated 3 August 2018, the CFMMEU responded on behalf of these Employees to Hitachi, denying the allegations of misconduct and taking unprotected industrial action. One of the statements made by the CFMMEU in the 3 August 2018 letter was that:

“Your desire to inconvenience the above named persons by leaving them somehow isolated up to 1.5km within a mine site, with no ability to leave that site other than by foot, removing from them their work resources of a vehicle to travel is totally inappropriate and in fact constitutes adverse action against them by injuring them in their employment. At the very least the conduct constitutes some form of harassment against them.”

[45] For a period of time after this exchange of correspondence up until about 17 September 2018, the service employees generally adhered to Hitachi’s directives.

[46] On and from about 18 September 2018, many of the Employees took a different approach towards the notified industrial action. In particular, many Employees started leaving customer jobsites before the notified commencement time of a particular two hour stoppage, and travelled back to the Muswellbrook branch for the purpose of the two hour stoppage (sometimes multiple times for multiple two hour stoppages per day). These Employees would also, at the end of the notified cessation time of a particular two hour stoppage, then travel back to the customer works site to resume work. Many of these Employees were using Hitachi pool vehicles for this purpose. These Employees were not asked, required or directed to return to the Muswellbrook branch during their shift and they had no work or other operational need to do so.

[47] On 18 September 2018, Hitachi emailed a one page document to all service employees in relation to their use of service vehicles, which provided (in part):

“… Vehicle use during periods of Protected Industrial Action (PIA)

The Company has issued a number of recent communications with regard to the use of service vehicles during and around periods of protected action. As additional clarification please see below.

1. During any period of PIA vehicles are not permitted to be driven.

2. If you have been assigned to a job site and have started work on the site, and then taken PIA, and you return to work for the balance of that shift after the PIA, you must present back to work at your assigned job site.

3. If you have been assigned to a job site and have started work on that site, and then taken PIA, and the PIA last for the balance of your shift, you are to report to branch [sic] at the commencement of your next rostered shift.

4. If working at the Liddell mine at the commencement of PIA, the vehicle is to be parked in the Liddell “overflow” car park and left secured. Liddell mine will allow persons participating in PIA to remain on site at the overflow carpark ONLY. If a HCA Supervisor is on site the keys are to be handed over to the HCA Supervisor, but in the absence of a HCA Supervisor you are permitted to lock the vehicle and take the keys with you until you report back to work at the end of the PIA. If the PIA extends to the end of your rostered block, please contact the Roster Supervisor to confirm what arrangements will be applied with regard to the return of the vehicle key.

5. If working at any other client site the vehicle is to be parked in the client’s carpark and left secured. If a HCA Supervisor is on site the keys are to be handed over to the HCA Supervisor, but in the absence of a HCA Supervisor you are permitted to lock the vehicle and take the keys with you until you report back to work at the end of the PIA. If the PIA extends to the end of your rostered block, please contact the Roster Supervisor to confirm what arrangements apply with regard to the return of the vehicle key.

6. During any PIA you are also not allowed in the HCA branch, unless prior approval has been given by the Roster Supervisor…”

[48] Since the interim order was made on 15 October 2018, all protected industrial action taken by the Employees has commenced at the notified time at their assigned work site and ceased at the notified time at their assigned work site.

[49] I make the following findings in relation to the CFMMEU’s contention that the Impugned Conduct is not “industrial action” because it falls within the exception provided for in s 19(2)(c) of the Act:

(a) I accept that the Employees had, and continue to have, a concern about a risk to their health or safety. Mr Drayton’s evidence establishes the existence of such a concern. 20 The risk is that the Employees have to exit by foot from the work sites where they are working immediately prior to taking protected industrial action in circumstances where there is no lighting and no footpath and then re-enter by foot at the cessation of the industrial action;21

(b) I do not accept on the evidence adduced in these proceedings that the Employees’ concerns are reasonable. For those Employees who work at the Liddell mine, they do not have to leave that mine during the notified period of stop work; they are, and have been since 18 September 2018, 22 permitted to drive to the “overflow” car park in the Liddell mine and remain there during the notified period of stop work.23 There is no evidence to suggest that remaining in the “overflow” car park at the Liddell mine creates or gives rise to a risk to the Employees’ health or safety. As for Employees working at client sites other than the Liddell mine, they are, and have been since 18 September 2018, permitted to drive to the client’s carpark and then must leave the client’s site. However, there is no evidence as to how far any of Hitachi’s client’s carparks are located from the entrance to the client’s site, nor is there any specific evidence as to the conditions of any road or path from any of Hitachi’s client’s carparks to the entrance to the client’s site. General evidence given by Mr Drayton and confirmed by Mr Cruz in cross examination including that “there is no mine site that has designated walking paths, nor are many of them well lit”24 is not, of itself, sufficient to establish that the concern is reasonable. Much more information about the conditions and relevant distances at particular sites would be required before a conclusion could be made that the concern was reasonable. In addition, Hitachi has not given any Employee any instruction that they must walk from a carpark out of the client’s site. The evidence demonstrates that a number of the Employees have been picked up by car from various client sites during recent periods of industrial action;25

(c) I do not accept on the evidence adduced in these proceedings that the concern of the Employees was about an “imminent” risk. An “imminent” risk is one which is “likely to occur at any moment”. 26 Because the concept of imminence describes the risk to an employee’s health or safety, the “probability of risk eventuating such that the employee is likely to be harmed or placed in an unsafe position requires to be considered”.27 In light of the lack of relevant evidence referred to in the previous paragraph, I am not able to assess the probability of risk eventuating or the likelihood of harm or the Employees being placed in an unsafe position. In the result, I am not satisfied on the evidence that the concerns held by the Employees are about an “imminent” risk to their health or safety. ; and

(d) I do not accept that the action of driving from a client site to the Muswellbrook workshop prior to the commencement of a period of stop work and taking the reverse journey after the cessation of a period of stop work is, has been, or could be, “based on” the concern identified in subparagraph (a) above. The existence of such a concern might, in the case of an Employee working at a site other than the Liddell mine, provide a basis for the Employee to use an Hitachi provided vehicle to drive from the client’s carpark to the entrance to the client’s site, and thereby avoid any risk associated with walking from the client’s carpark to the entrance to the client’s site, but it does not and could not provide a basis to drive from the entrance to the client’s site to the Muswellbrook branch and back again.

[50] For those reasons, the claim that the Impugned Conduct is not “industrial action” because it falls within the exception provided for in s 19(2)(c) of the Act must fail.

Conclusion and relief

[51] For the reasons I have given, I am satisfied that “industrial action” by the Employees that is not, or would not be, protected industrial action:

(a) is impending or probable; and

(b) is being organised by the CFMMEU Representatives on behalf of the CFMMEU.

[52] Accordingly, I must make an order that the “industrial action” stop, not occur or not be organised (as the case may be) for a period specified in the order (s 418(1) of the Act).

[53] The CFMMEU, CFMMEU Representativies, and the Employees, all of whom were represented by Ms Short, Legal Officer of the CFMMEU, at the hearing, did not raise any objection to the terms of the order sought by Hitachi. In my view, the order proposed by Hitachi is appropriate in the circumstances of this case; it is limited to, and based on, the factual circumstances of this case, namely the Impugned Conduct and the role of the CFFMEU and the CFMMEU Representatives organising such conduct; and the duration of the order is appropriate, given that it will, in essence, continue to operate while bargaining is ongoing but will not preclude the Employees from taking, and the CFMMEU from organising, protected industrial action to further their interests in negotiating a new enterprise agreement with Hitachi.

[54] An order will be made in the terms sought by Hitachi PR702085.

COMMISSIONER

Appearances:

Ms J. Short, Legal Officer of the CFMMEU, for the CFMMEU, the CFMMEU Representatives and the Employees

Mr M. Follett, of Counsel, instructed by T. Pick, AiGroup, for Hitachi

Hearing details:

2018.

Newcastle:

1 November

Printed by authority of the Commonwealth Government Printer

<PR702084>

 1   PR701326

 2   PR701329

 3   CFMEU v Hitachi Construction Machinery (Australia) Pty Ltd[2017] FWC 1829 at [1]

 4   Ibid at [23]

 5   Ibid at [1]

 6   PR609521

 7   Mornington Peninsula Shire Council v Australian Municipal, Administrative, Clerical and Services Union[2017] FWCFB 470 at [47], applying Ambulance Victoria v United Voice [2014] FCA 1119 at [20]

 8   Ibid at [48], applying United Firefighters Union of Australia v Easy [2013] FCA 763 at [153]

 9   Ibid at [47], applying Ambulance Victoria v United Voice [2014] FCA 1119 at [23]

 10   Ibid at [48], applying United Firefighters Union of Australia v Easy [2013] FCA 763 at [153]

 11   Ibid at [47], applying Ambulance Victoria v United Voice [2014] FCA 1119 at [21]

 12   James Coward and Derek Wiley v Bulga Coal Management Pty Ltd [2004] NSWCIMC 54

 13   B2016/1217

 14   See paragraphs [38]-[47] below

 15   Exhibit A1 at [66], [69] and [81]

 16   Exhibit A1 at [49]-[51], [70], [82] and PC-3; Exhibit R1 at JMD-9

 17   [2004] NSWCIMC 54

 18   Statement of Jeffrey Drayton dated 26 October 2018 at [21]

 19   Ibid

 20   ABCC v CFMEU [2009] FCA 1092 at [113]

 21   Exhibit R1 at [21] and JMD-6

 22   The Impugned Conduct has taken place consistently since 18 September 2018. It only happened on limited occasions prior to 18 September 2018.

 23   Exhibit R1 at JMD-9

 24   Exhibit R1 at JMD-6; see also Exhibit R1 at [21]

 25   Exhibit R1 at [18]

 26   Hansen Yuncken Pty Ltd v Deegan & Ors[2013] FWC 7505 at [31], applying ABCC v CFMEU [2009] FCA 1092 at [114]

 27   Ibid