Linfox Australia Pty Ltd v National Union of Workers

[2016] FWC 6797

[2016] FWC 6797

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action

Linfox Australia Pty Ltd
v
National Union of Workers
(C2016/5658)

COMMISSIONER GREGORY MELBOURNE, 21 SEPTEMBER 2016

Alleged industrial action at Linfox.

Introduction

[1] This decision deals with an application by Linfox Australia Pty Ltd (“Linfox”) under s.418 of the Fair Work Act 2009 (Cth) (“the Act”). The application is made in response to industrial action it alleges is occurring at its bulk petroleum distribution centre at Altona North, which it submits is disrupting fuel deliveries to retail outlets. The matter was listed at short notice at the request of Linfox and this decision was issued at the conclusion of the proceedings. It contains some minor corrections and amendments but these are not intended to change the intent of the decision in any way.

[2] It is also noted that due to the listing at short notice, and the fact the hearing occurred late in the evening, the proceedings were not recorded or transcribed. Mr Richard West from Minter Ellison was granted permission to appear on behalf of Linfox under s.596(2)(a) of the Act as the matter involves a degree of complexity and his involvement might enable it to be dealt with more effectively. He appeared with Mr Darren Jones, Employee Relations Manager at Linfox.

The Submissions and Evidence

[3] The submissions provided on behalf of Linfox indicate the employees concerned are employed as drivers at its site at Lot 2, Stuber Road Altona North, Victoria 3025 and are involved in bulk petroleum deliveries to retail outlets. They are covered by the Linfox Australia (Bulk Petroleum) Agreement 2014 (“the Agreement”), which has a nominal expiry date of 30 June 2018.

[4] Linfox submits that on 20 September 2016 it allowed the National Union of Workers (“the NUW”) to conduct a meeting on site during the change of shift and prior to the commencement of the night shift, which variously begins at 3.00pm and 4.00pm. However, following that meeting 23 employees, who were scheduled to begin work on the night shift, refused to commence work and subsequently formed a picket line outside the gate.

[5] Linfox continues to submit it was then advised by an NUW official at the site that the employees would not be returning to work until certain demands relating to a disciplinary issue were met. Linfox submits that it was also indicated the action would extend to involve employees who were due to commence the day shift at 3.00am on the following morning.

[6] It was also indicated that all reasonable attempts have been made to inform relevant NUW officials, and the employees involved in the alleged action, about the application and the intention to have the matter dealt with at short notice.

[7] Mr Wayne Duffy is employed by Linfox as the Site Manager at the Altona North depot. His evidence indicates that at around 3.20pm on 20 September 2016 he noticed that a group of drivers due to start on the night shift worker were congregating at the gate and had not reported to work for the commencement of their shift. He said he approached the drivers and asked them to commence work, however, none responded positively and they have remained outside the gate since that time.

[8] He said he also spoke to an NUW official on several occasions, requesting that the drivers attend for work, but was informed that they were refusing to attend for duty. Mr Duffy said he identified 23 of the night shift drivers who were refusing to attend for work, and this was impacting on a further 13 drivers, who had been prevented from performing their duties by not being able to enter the site. He also indicated he believed the refusal by the drivers to attend for work was being organised by the NUW.

[9] Linfox submits, in response, that the evidence indicates industrial action is happening at the site, and it is not protected industrial action, given the Agreement has not passed its nominal expiry date. It accordingly submits it is now appropriate for the Commission to make an order under s.418 that the industrial action stop.

[10] However, it also responded to a suggestion from the Commission that one option, in all the circumstances, would be to issue an Interim Order. Linfox indicated, in response, it would not oppose the making of an Interim Order.

Consideration

[11] I have had regard to the submissions provided in the proceedings on behalf of Linfox. I have also had regard to the witness evidence provided by Mr Wayne Duffy, the Site Manager at Linfox’s bulk petroleum depot at Altona North.

[12] It is understood that Linfox is of the view that the relevant matters the Commission must be satisfied about to make an Order under s.418 are in existence, and it is appropriate in those circumstances for an Order to be made that industrial action stop.

[13] However, the Commission has also had regard to the fact the matter was listed at short notice and heard late in the evening. While it is understood all reasonable attempts were made to advise relevant NUW officials, and the individual employees involved in the alleged action, about the application I am satisfied that, in all the circumstances, they had a limited opportunity to be in a position to provide submissions and evidence in response.

[14] I am accordingly satisfied that in the absence of submissions and evidence from the NUW, or the employees involved, it is not necessarily appropriate to determine the application at this time.

[15] Section 420 of the Act deals with the circumstances in which an Interim Order might be made. The section relevantly states:

“Interim orders etc.

Application must be determined within 2 days

(1) As far as practicable, the FWC must determine an application for an order under section 418 or 419 within 2 days after the application is made.

Interim orders

(2) If the FWC is unable to determine the application within that period, the FWC must, within that period, make an interim order that the industrial action to which the application relates stop, not occur or not be organised (as the case may be).

(3) However, the FWC must not make the interim order if the FWC is satisfied that it would be contrary to the public interest to do so.”

[16] As indicated, I am not satisfied that it is appropriate to determine the application at this point for the reasons indicated. However, having regard to the submissions and witness evidence provided on behalf of Linfox, and the potential impact of the alleged action, I am satisfied it is appropriate for an Interim Order to issue. I am also satisfied it is appropriate for the Interim Order to be binding on Linfox, the NUW and its delegates, officers, employees and agents, and the employees who are employed by Linfox at its Altona North site and are covered by the Agreement.

[17] The Interim Order will come into effect immediately, being at 10.30pm on Tuesday, 20 September 2016 and shall remain in force for a period of 48 hours unless further orders under s.418 are issued in the meantime as a consequence of this application. An Interim Order to this effect was issued at the conclusion of the proceedings. However, an amended Interim Order containing some minor formatting changes is also issued in conjunction with this decision. The application will also now be listed for further hearing at 10.00am on Thursday, 22 September 2016.

COMISSIONER

Appearances:

R West of Minter Ellison and D Jones for Linfox Australia Pty Ltd

Hearing details:

2016.

Melbourne:

September 20

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