Inghams Enterprises Pty Limited v United Workers' Union
[2023] FWC 2488
•26 SEPTEMBER 2023
[2023] FWC 2488
The attached document replaces the document previously issued with the above code on 26 September 2023.
Typographical errors corrected in paragraphs [16] and [79].
Associate to Deputy President Anderson.
Dated 27 September 2023.
| [2023] FWC 2488 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.418—Industrial action
Inghams Enterprises Pty Limited
v
United Workers’ Union
(C2023/5717)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 26 SEPTEMBER 2023 |
Application for an order that industrial action by employees or employers stop etc.
On 24 September 2023 Inghams Enterprises Pty Limited (Inghams) applied to the Commission under s 418 of the Fair Work Act 2009 (FW Act) for an order to stop unprotected industrial action.
The application concerns action which Inghams alleges is unprotected industrial action being organised and taken by the United Workers’ Union (UWU) and its officers and members in and around a chicken processing facility at Bolivar in suburban Adelaide.
Separately, Inghams made a related application under s 240 of the FW Act for the Commission to deal with a bargaining dispute (the bargaining dispute application).[1]
Section 420 of the FW Act requires the Commission, as far as practicable, to determine an application under s 418 within two days after being made, otherwise an interim order must be issued unless it is contrary to the public interest to do so.
The parties agree that the two-day period specified by s 420 expires at midnight (11.59pm) on 26 September 2023.
In light of the application being determined inside that timeframe, the question of an interim order under s 420 does not arise.
I issued directions on the morning of 25 September.
I heard the application at 3.00pm (ACST) on 25 September.
I heard evidence from Inghams Operations Manager of the Bolivar site Mr Troy Lawson.
In advance of the hearing, Deputy President Hampton conducted a conference of the parties to the bargaining dispute. Although the parties reported that some progress had been made towards resolution of the broader dispute, that matter was not resolved. Inghams pressed its s 418 application.
I granted permission, by consent, for Inghams and the UWU to be represented. I made an order for substituted service.[2]
A decision was reserved. I directed that Inghams file an amended draft order to take into account concessions it made during proceedings as to the excessive breadth of the draft order accompanying its application. Inghams filed an amended draft order on the morning of 26 September. The UWU replied.
Facts
The background facts are not in dispute though the UWU challenged aspects of the evidence of Mr Lawson which was not based upon his direct observation of events at the Bolivar site.
Protected action
In March 2023 Inghams and the UWU commenced bargaining for a replacement enterprise agreement to cover persons employed under the Inghams Enterprises (South Australia Processing and Distribution) Enterprise Agreement 2020 (Agreement).
On 21 August 2023 Deputy President Hampton ordered pursuant to s 443 of the FW Act that a protected action ballot be held with respect to members of the UWU to be covered by the proposed new agreement.[3]
The Commission subsequently conducted a conference under s 448A of the FW Act.
The ballot closed on 8 September. That day, the ballot agent declared the result of the ballot. The taking of the following protected action was approved:[4]
“An unlimited number of stoppages of work of 1 hour duration;
An unlimited number of stoppages of work of 4 hour duration;
An unlimited number of stoppages of work of 24 hour duration; and
An unlimited number of stoppages of work of unlimited hour duration”
Following the declaration of results, Inghams received notices of protected action from the UWU pursuant to s 414(1) of the FW Act. Those notices included notification of 24 hour stoppages of work on seven consecutive days commencing at 12.01am Friday 22 September 2023, until 28 September 2023.
Stoppages of work
The notices of protected action were acted upon.
Stoppages of work commenced at the Bolivar site on 22 September. The stoppages continued on 23 September, 24 September and 25 September 2023 (the day of the hearing).
Interruption to production
The Bolivar site has a permitter through which entry is obtained by using one of five gates.
On the afternoon and evening of 21 September 2023 Inghams noticed generators and chill trailers delivered to the perimeter of the site and then a BBQ and temporary shelter facilities.
In and around midnight on 21 September Mr Lawson observed a small group of Inghams employees assembling around gate 5. The group grew larger when the afternoon shift concluded at midnight. In the early hours of 22 September Mr Lawson observed Inghams employees and persons he recognised as UWU delegates and officers joining the assembly. The assembly also included approximately 20 persons not known to Mr Lawson or Inghams management. By 12.30am there were approximately 100 persons present. The assembly dispersed to multiple entry gates and picketed those gates.
From 12.30am on 22 September employees rostered to commence work in the ‘Red Area’ were prevented from gaining access to the site by the assembly creating a human barrier across gates.
At around this time the assembly commenced preventing vehicles from entering or exiting the site.
At 3.30am in the early morning of 22 September an incident occurred in which it is alleged by Inghams that an employee attempting to enter the site for work was assaulted.
A small number of production employees were able to access the site at around 4.00am. Others were unable to do so and remained in the car park. Salaried staff were able to access the site after remonstration and negotiation at around 3.30am.
The blockade continued during the day of 22 September.
According to Mr Lawson, approximately 25,000 birds were on site that required processing. The site processed those birds despite ordinary processing being interrupted on account of the reduction in available processing, maintenance and cleaning capacity.
No new stock of birds was allowed onto the site for processing on that day or in the days following due to the blockade.
Whilst the plant processed the available birds on 22 September, the blockade prevented regular clean up and disposal of offal and related waste product. Offal bins and pits overflowed.
After negotiation with management and having regard to animal welfare concerns, the blockade permitted two trucks to exit the site late on 22 September. Other trucks, including those operated by contractors were denied egress and remained stranded on site.
As Inghams was not able to secure safe access for the remaining production workers who wished to work and who were waiting in and around the car park, they were advised to go home. They were paid for that day.
The blockade continued on 23 September. No production occurred. Aside from a handful of management personnel all access and egress was prevented other than a small number of maintenance personnel being permitted on site to undertake urgent maintenance having regard to site safety concerns.
The blockade remained in place on 24 and 25 September 2023. No production occurred. A handful of management were again permitted entry. Managers took steps to try to manage safety risks associated with the accumulation of offal and waste product, and potential risks from the uncontrolled or unsupervised emission of ammonia and boiler systems.
I make these findings based on the evidence of Mr Lawson. Whilst some of these findings are based on Mr Lawson observing closed circuit footage shortly after the events occurred and some are based on what he had been advised by other managers who had observed the events, a substantial number of these events are the product of his direct observation.
I consider the overall content of Mr Lawson’s evidence to be a reliable basis for fact finding. Whilst the CCTV footage was not produced in evidence and whilst other managers could have but did not give evidence, the hearsay elements of Mr Lawson’s evidence were broadly consistent with his direct observations.
By 23 and 24 September the blockade had attracted media and public interest.
Section 418 application
On the morning of 24 September Inghams applied to the Commission under s 418 for an order to stop unprotected industrial action.
According to the revised draft order, Inghams seek the following:
“1. TITLE
This Order will be known as the Inghams Industrial Action Order No. 1 2023 (Order).
2.PERSONS BOUND
This Order is binding upon and applies to:
(a)Inghams Enterprises Pty Limited (Inghams);
(b)United Workers Union (UWU);
(c)delegates, officers, officials, employees and agents of the UWU; and
(d)employees of Inghams who are:
(i)members, , of the UWU;
(ii)whose employment is covered by the Inghams Enterprises (South Australia Processing and Distribution) Enterprise Agreement 2020 (Agreement); and
(iii)who are employed at poultry processing facility at Burton Road, Burton in South Australia (Bolivar Site)
(Employees).
The persons and organisations listed in clauses 1(b), (c) and (d) above must comply with the directions in clause 4 of this Order.
3.DEFINITION OF INDUSTRIAL ACTION
For the purposes of this Order, industrial action means any action 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; and
(c)…
but does not include the following:
(d)protected industrial action within the meaning of s 408 of the Fair Work Act 2009 (Cth);
(e)action by an Employee that is authorised or agreed to by Inghams; and
(f)action by an Employee if;
(i) the action was based on that Employee’s reasonable concern about an imminent risk to the Employee’s health or safety; and
(ii) the Employee did not unreasonably fail to comply with a direction of Inghams to perform other available work, whether at the same or another workplace, that was safe and appropriate for the Employee to perform.
4.INDUSTRIAL ACTION TO STOP OR NOT OCCUR
(a)The UWU must immediately stop organising industrial action against Inghams and must not, recommence, engage in, or threaten to engage in organising industrial action against Inghams while this Order is in force.
(b)Each Employee must immediately stop all industrial action that is happening at the time that this Order comes into effect and must not, recommence, engage in or threaten to engage in, industrial action while this Order is in force.
(c)Acts by the UWU (whether by itself or by its officials, delegates, employees and agents) to aid, abet, direct, counsel, procure, authorise or induce the Employees to engage in industrial action must stop and must not be commenced or recommenced.
5.SERVICE OF ORDER
Without limitation as to other means of service, it will be sufficient service of this Order upon:
(a)an Employee if a copy of this Order is emailed to the Employee at his or her nominated contact email address as soon as is practicable; or
(b)the Employees if a copy of this Order is placed on the noticeboard(s) usually used for the purpose of communicating with the Employees at the Bolivar Site, by [time] on [date], and if a copy of this Order is posted at the Security Gatehouse at the main entry point to the Bolivar Site at 443 Burton Road, South Australia; and
(c)the UWU if a copy of this order is emailed to UWU officials Anne Purdy and Claire Lewis at their respective UWU email addresses with a copy to the National Secretary of the UWU.
6.TERM AND DATE OF EFFECT
This Order will come into effect from [time] on [date] and will remain in force until [date].”
The application is opposed by the UWU.
Submissions
Inghams
Inghams submit that since the early hours of the morning of 22 September 2023 and continuously since a picket has been formed at access and egress points to the Bolivar site which it says is preventing employees and contractors from entering and exiting the site.
Inghams submits that the picket is being organised by the UWU and its delegates, officials and members.
Inghams submits that the picket, in the form of a blockade, is industrial action within the meaning of the FW Act.
Inghams submits that whilst certain of the employees are taking protected action by withdrawal of their labour, their action and the action of the picketers goes beyond the withdrawal of labour and is unprotected industrial action.
UWU
The UWU submit that, to the extent employees are taking industrial action, it is protected industrial action in the form of an authorised and notified rolling stoppage of work.
The UWU submit that any blockading or picketing of the Bolivar site is not industrial action within the meaning of the FW Act.
According to the UWU, it not being industrial action within the meaning of the Act, it cannot be unprotected industrial action. That being so, the Commission has no jurisdiction or power to make orders under s 418 or to make an interim order under s 420. The relevant jurisdictional fact (unprotected industrial action) has not been established.
Alternatively, the UWU submit that the evidence of Mr Lawson is not a sufficient or sufficiently reliable basis on which to make findings of fact that the action is being organised or taken by the UWU.
In the further alternative, the UWU submit that the orders sought are vague and imprecise such that they cannot be reasonably understood or complied with, and should not be issued.
With respect to s 420, the UWU submit that it is contrary to the public interest to issue an interim order because, in light of decided authority, no arguable case of jurisdiction exists on which the finding sought by Inghams could be made.
Consideration
Section 418 provides:
“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.
Note:For interim orders, see section 420.
(2)The FWC may make the order:
(a)on its own initiative; or
(b)on application by either of the following:
(i)a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;
(ii)an organisation of which a person referred to in subparagraph (i) is a member.
(3)In making the order, the FWC does not have to specify the particular industrial action.
(4)If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:
(a)some or all of which has not been taken before the beginning of the stop period specified in the order; or
(b)which has not ended before the beginning of that stop period; or
(c)beyond that stop period;
the FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.
This matter concerns a circumstance where protected action in the form of rolling stoppages of work is being taken by some employees at the Bolivar site but where the employer also contends that parallel with the protected action the UWU and some of those employees and are also taking unprotected industrial action.
It is necessary that the statutory foundation for the order sought under s 418 be present.[5] The order must relate to the industrial action which triggers the statutory obligation.[6] There is no scope for an order to travel beyond the industrial action.[7]
It is a condition precedent to making orders under s 418 that the Commission is satisfied that it appears that “industrial action” (as defined) is “happening, threatened or probable” or is “being organised”.
I am well satisfied that activity of an industrial character in the form of a picket currently blockading access and egress to the Bolivar site has been organised and is happening.
I am also satisfied that the picket has been organised by the UWU, its delegates and members and that each group are engaging in the activity of picketing.
I am further satisfied that the activity of picketing is not protected action. The protected action order issued by the Commission only authorises and provides legal immunity with respect to a “stoppage of work” by an individual employee who is a member of the UWU . In other words, the relevant action which is protected allows a member of the UWU covered by the Agreement to withdraw their labour (on notice) but it does not permit that person from preventing other employees or contractors or vehicles from accessing or leaving the site. This is because the action of picketing is not a “stoppage of work” within the meaning of the protected ballot order; it goes well beyond that. It is an interference with the lawful right of others, both the employer, employees and contractors, to go about their lawful and usual business.
For these reasons the picketing, to the extent it involves more than the lawful withdrawal of an employee’s labour (and it does), is unprotected action.
However, the question which determines this application is whether the action is “industrial action” as defined.
The issue is not free from difficulty.[8]
Section 19 provides:
“19 Meaning of industrial action
(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.
Note:In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.
(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; and
(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.
(3)An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.
Note:In this section, employee and employer have their ordinary meanings (see section 11).”
Inghams rely on s 19(1)(b).
It is not contested that the action by employees who are members of the UWU in withdrawing their labour is industrial action falling within s 19(1)(b). This is because it is a ban by those persons on the performance of work by them. That industrial action is currently protected action.
However, does the parallel action of picketing (being the collective assembly of persons at the Bolivar site which is having the effect of blockading or restricting access and egress to the site) fall within the statutory definition of “industrial action”?
For it to do so, Inghams need to establish that such action is a “ban, limitation or restriction on the performance of work by an employee or on the acceptance or offering for work by an employee”.
Whilst it is arguable that s 19 is to be interpreted as including the prevention of other employees other than one’s self from performing work, this is not the state of the law.
Although dealing with a somewhat different definition of “industrial action” in the then Workplace Relations Act 1996, the Full Federal Court in Construction, Forestry, Mining and Energy Union and Others v Australian Industrial Relations Commission stated:[9]
“…it is unlikely that picketing is conduct comprehended by the expression “a restriction on the performance of work”.
Again, whilst dealing with the somewhat different definition of “industrial action”, in Davids Distribution v NUW (Davids) it was stated:[10]
“We think that the paragraph ought to be read as applying only to limitations on the work of those imposing the ban. The history of the legislation and policy considerations persuade us it is likely Parliament intended to confine the paragraph in this way.” (emphasis added)
Their Honours made this observation after acknowledging a distinction between picketing that merely communicated information compared to picketing that prevented or hindered people from performing work (an obstructive picket), but then considered that neither form of picketing fell within the then statutory definition.
The policy considerations referred to by their Honours were:[11]
“it seems erroneous to conclude that Parliament must have had picketing in mind when deciding to limit the immunity conferred…on “industrial action”. Rather it seems to us, the explanation is that Parliament was prepared to concede a right to strike, the essence of which is the withdrawal of the employee’s own labour, but only provided the exercise of this right does not have unacceptable consequences”.
In CEPU v Laing French J of the Federal Court observed:[12]
“To constitute industrial action…picketing must fall within the statutory definition of that term. It is not the performance of work. It can only qualify as industrial action if it amounts to a “ban, limitation or restriction on the performance of work”. So a picket line whose purpose is to prevent or deter or discourage employees from attending on their employer’s premises and from carrying out their work could constitute a ban for the purposes of s 127.”
A consequence of picketing (whether communicative or obstructive) falling within the definition of “industrial action” for the purposes of an order under s 418 is that that same picketing conduct, should it be industrial action, would be capable of immunity from suit by being authorised as protected action. This is because there is a singular definition of “industrial action” for the purposes of the FW Act; that is, the definition in s 19.
Whilst the aforementioned decisions of the Court dealt with earlier statutory definitions than what is now found in the FW Act, I am satisfied that the terms of the current definition in s 19 is not materially different to the definitions in the preceding Workplace Relations Act 1996 and the Industrial Relations Act 1998 so as to displace the Court’s reasoning or underpinning policy rationale:[13]
“To interpret…the definition of “industrial action” in such a way as to include picketing infringing upon the rights and freedoms of others, would be to confer statutory immunity on such conduct”.
As noted by the Court in Davids, picketing which interferes with a person’s liberty and freedom of movement infringes on that person’s common law rights, in particular the right to free passage in public spaces and on public roads and footpaths.[14]
For the definition of “industrial action” in s 19 to include such conduct that section would, in my view, require language that evidences a clear intention to do so, given that the statutory scheme extends (on compliance with statutory formalities) to grant immunity to action falling within the definition in s 19. There is no such clear intention evidenced.
Accordingly the conduct the subject of the application by Inghams, which I have found to be an obstructive picket interfering with the lawful rights of others and that is being organised by the UWU, does not fall within the definition of “industrial action” in the FW Act. It cannot be the subject of the order sought by Inghams.
Lest this decision be misunderstood, such picketing is not beyond the reach of the law. Where conduct infringes common law rights (for example is tortious conduct or conduct inducing breaches of contract) or infringes statutory prohibitions (for example, is secondary boycott activity) it and its economic and personal consequences on individuals and businesses are capable of being subject to legal claim.
I also note that the current application by Inghams is not an application for the suspension of the protected industrial action which I have found to be occurring in parallel to the picket. The FW Act provides for applications to the Commission to suspend or terminate protected industrial action where significant economic harm is arising (s 423), where the action is endangering life or the personal health and safety of the population (s 424), where a cooling off period is appropriate to resolve a bargaining dispute (s 425) or where significant economic harm exists to a third party (s 426).
I have been required to answer a legal question in determining this application. I express no view on whether the picketing conduct is reasonable nor on whether the claims or counter claims in bargaining are appropriate or whether bargaining is occurring in good faith.
Conclusion
As the action the subject of this proceeding is not capable of giving rise to an order under s 418 of the FW Act, the application by Inghams must be dismissed.
An order giving effect to this decision is issued in conjunction with its publication.[15]
DEPUTY PRESIDENT
Appearances:
Mr R Marshall, with permission, on behalf of Inghams Enterprises Pty Limited
Mr P Dean, of Counsel, with permission, with Ms M McCarthy and Mr E Womersley, on behalf of the United Workers’ Union
Hearing details:
2023
Adelaide (in person)
Sydney (by video)
25 September
[1] B2023/1013 - Application by Inghams Enterprises Pty Limited
[2] PR766592
[3] United Workers' Union v Inghams Enterprises Pty Limited [2023] FWC2080 (Decision); PR765364 (Order)
[4] CiVS Declaration of Result 8 September 2023
[5] Esso Australia Pty Ltd v The Australian Workers Union [2016] FCAFC 72, [33] per Buchanan J
[6] Ibid, [39]
[7] Ibid, [378] per Bromberg J
[8] Davids Distribution v NUW [1999] FCA 1108, [43] per Wilcox and Cooper JJ
[9] (1998) 84 IR 314
[10] [1999] FCA 1108, [52] per Wilcox and Cooper JJ
[11] Ibid, [62]
[12] Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Commissioner Laing (1998) 86 IR 142, 156
[13] Ibid, [73]
[14] Ibid, [72]
[15] PR766615
Printed by authority of the Commonwealth Government Printer
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