McCain Foods (Aust) Pty Ltd v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
[2010] FWA 3630
•6 MAY 2010
[2010] FWA 3630 |
|
DECISION |
Fair Work Act 2009
s.418 — Application for an order that industrial action by employees or employers stop etc.
McCain Foods (Aust) Pty Ltd
v
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
(C2010/3418)
COMMISSIONER GOOLEY | MELBOURNE, 6 MAY 2010 |
Application to stop etc unprotected industrial action at the McCain Foods Wendouree site.
[1] On 13 April 2010 McCain Foods (Australia) Pty Ltd (McCain) filed an application pursuant to section 418 of the Fair Work Act 2009 (the FW Act).
[2] The matter was listed for hearing at 2pm on 13 April 2010 and Mr Ogilvie, a solicitor with Freehills, was given permission to appear on behalf of McCain. Ms McGrath and Mr Hale appeared for the AMWU. After hearing from the parties I indicated that I was satisfied that the AMWU through its delegates or organiser was organising industrial action and I therefore granted an order directed at the AMWU and its representatives in the following terms:
“3.1 The AMWU must:
(a) stop, stop organising and refrain from further organising or recommencing the organisation of, any industrial action by the Employees; and
(b) not aid, abet, direct, counsel, procure, authorise or induce the Employees to engage in any industrial action.
3.2 The AMWU Representatives must:
(a) stop, stop organising and refrain from further organising or recommencing the organisation of, any industrial action by the Employees; and
(b) not aid, abet, direct, counsel, procure, authorise or induce the Employees to engage in any industrial action.”
[3] The matter was relisted for 14 April 2010 at which time Mr Ogilvie sought to have the orders directed at the production employees of McCain. I was advised at that time that no industrial action was occurring. I declined to make the orders directed against the production employees.
[4] I indicated that I would publish my reasons for my decision and I do so.
Background
[5] McCain is a manufacture of french fries, vegetables, pizza, meals and potato speciality products in plants for both the retail and foodservice markets. The application concerns McCain’s manufacturing operations at the Ring Road, Wendouree plant where McCain manufactures french fries and prepared meals.
[6] The employment of the employees is covered by the McCain Foods (Aust) Pty Ltd Ballarat Enterprise Agreement 2009 (the Agreement). The Agreement commenced operation on 7 April 2010 and has a nominal expiry date of 30 June 2011.
[7] The employees covered by the Agreement are production employees or maintenance employees.
The evidence on 13 April 2010
[8] Mr Lett who is the plant manager for potato products and Mr Neylon who is the Human Resources Manger gave evidence on behalf of McCain. Further evidence was provided in the application filed by McCain. The AMWU did not call any witnesses to give evidence.
[9] The evidence established that production employees of McCain engaged in the french fry plant are in dispute with McCain over the scheduling of rostered days off (the dispute).
[10] Mr Ogilvie submitted that at approximately 3pm on 12 April 2010 the AMWU organiser Ms McCarthy and AMWU delegates represented members of the AMWU in discussions with the company over the dispute. 1 There was some discussion about the dispute being referred to Fair Work Australia for resolution but this had not occurred.
[11] Mr Lett’s evidence was that at approximately 9pm on 12 April 2010 he received a phone call from Ray Baulderstone, the production supervisor of the french fry plant, who said he had been approached by Mr Tim Vincent and Ms Kerry Mills, AMWU delegates on the afternoon shift, who told him that the night shift in the french fry plant would not be working their rostered shift commencing at 11pm. Mr Lett’s evidence was that he tried to speak to the delegates via Mr Baulderstone but the delegates were not prepared to speak with him and advised him to speak to Ms McCarthy who is the AMWU organiser for the site. Mr Lett spoke to Ms McCarthy and she told him that there was going to be a feedback meeting and that she did not know what the members were doing to do. He gave evidence that Ms McCarthy conducted a meeting of night shift employees in the french fry division, in the car park, prior to the commencement of their shift, and the employees rostered to work in the french fry division did not attend for work on the night shift. 2
[12] Despite Ms McCarthy telling Mr Lett that she did not know what was going to happen, at least 2 hours prior to the members’ meeting, the delegates advised McCain that the members would not be working.
[13] Mr Neylon gave evidence that he received a phone call at approximately 12.20am from the production manager in the prepared foods plant, Mr Kerr, who told him that the prepared foods employees were having a stop work meeting at 1am and that the employees were likely not to return to work. Mr Neylon spoke to Ms McCarthy who was at the site and she told him that there was to be a report back meeting that had been requested by employees. Mr Neylon said he was surprised that there was to be a meeting with these employees as the RDO roster for these employees was not in dispute. 3 There was no evidence that Ms McCarthy had been given authorisation by McCain to conduct this meeting.4 After the meeting was finished the night shift employees did not return to work. Mr Dave Sargent an AMWU delegate then advised Mr Kerr that there was a 24 hour stoppage.
[14] At 6am on 13 April 2009 Ms McCarthy was observed in the car park at the site and the employees present at the car park participated in a meeting. No direct evidence was given about what was said at the meeting but the day shift employees who were rostered to commence work at 7am on 13 April 2010 did not attend work. 5
[15] The prepared food plant employees rostered on day shift also left the site.
[16] At the time of the hearing on 13 April 2010 work was rostered to commence on the afternoon shift at 3pm.
The Legislative Framework
[17] Section 418(1) of the FW Act empowers Fair Work Australia to make orders stopping industrial action by employees.
(1) If it appears to FWA 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;
FWA 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.”
[18] Section 420 provides that Fair Work Australia may make interim orders.
“(1) As far as practicable, FWA must determine an application for an order under section 418 or 419 within 2 days after the application is made.
Interim orders
(2) If FWA is unable to determine the application within that period, FWA 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, FWA must not make the interim order if FWA is satisfied that it would be contrary to the public interest to do so.
(4) In making the interim order, FWA does not have to specify the particular industrial action.
(5) An interim order continues in operation until the application is determined.”
[19] Section 421 provides that persons must comply with the order.
“(1) A person to whom an order under section 418, 419 or 420 applies must not contravene a term of the order.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) However, a person is not required to comply with an order if:
(a) the order is an order under section 418, or an order under section 420 that relates to an application for an order under section 418; and
(b) the industrial action to which the order relates is, or would be, protected industrial action.”
Findings on 13 April 2010
[20] It is clear that there is an applicable enterprise agreement applying to the site which had not passed its nominal expiry date and therefore any industrial action by employees could not be protected action.
[21] It is uncontested that at the time of the hearing the production employees had taken industrial action. The industrial action had commenced on the 12 April 2010 and was continuing. It was uncontested that the industrial action took the form of a 24 hour stoppage by production employees.
[22] The factual issue to be resolved was whether the AMWU had organised the industrial action as it is clear that the AMWU cannot, given the definition of industrial action at section 19 of the FW Act, take industrial action. Industrial action is by definition either conduct of employees or employers.
[23] The FW Act at section 793(1) provides that:
“(1) Any conduct engaged in on behalf of a body corporate:
(a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.”
[24] An officer is defined at section 12 as follows:
“officer, of an industrial association, means:
(a) an official of the association; or
(b) a delegate or other representative of the association.”
[25] An official is defined at section 12 as follows:
“official, of an industrial association, means a person who holds an office in, or is an employee of, the association.”
[26] It is therefore necessary to consider the conduct of the officers of the AMWU at the site.
[27] It was not disputed that Ms McCarthy is an employee of the AMWU and therefore an officer of the AMWU and that by Ms McCarthy engaging in conduct, the AMWU is taken to have engaged in the conduct.
[28] The evidence of Ms McCarthy’s organising of industrial action is that she organised a meeting of production employees in the french fry plant prior to the commencement of the night shift and had a discussion with them. The employees did not attend for work. 6 Ms McCarthy also conducted a meeting of morning shift production employees prior to the commencement of their shift and there was discussion driven by Ms McCarthy.7 Ms McCarthy was also on site to conduct an unauthorised report back meeting of the night shift prepared food production employees and subsequently those employees stopped work.8
[29] The AMWU delegates at the site are also officers of the AMWU and their conduct is also conduct of the AMWU. The evidence of the involvement of AMWU delegates is that Ms Mills and Mr Vincent, AMWU delegates, told McCain about the impending stoppage of night shift; 9 a couple of delegates including the day shift delegate Eddie Martin were not allowing people into the site10 prior to the commencement of their shift; and Mr Sargent, an AMWU delegate, spoke to Mr Kerr and told him that the night shift in the prepared foods plant was stopping work for 24 hours.11 Ms McGrath on behalf of the AMWU put to Mr Lett, on instructions, that “members told their delegates to organise meetings about it because they wanted to voice their concerns”.12 She further put to Mr Lett that “members were very miffed. They demanded their delegates to do something about it.”13
[30] The evidence of McCain combined with the matters Ms McGrath put to witnesses for the company, based on her instructions, support a finding that the delegates were involved in organising the meetings that led to the industrial action and at least one of those meetings involved a stoppage of work.
[31] Ms McCarthy conducted meetings of the night shift and morning shift employees. The meeting conducted during the night shift in the prepared foods division was not authorised by the employer. It is beyond doubt that organising and attending a meeting at a time not authorised by the employer, even if for the purpose of reporting back to members, is organising industrial action.
[32] Despite the submissions of the AMWU that the delegates and the organiser were mere conduits for the members, no evidence was called by the AMWU to support those submissions.
[33] On the evidence before the Tribunal I find that the industrial action, namely the stoppage of work by production employees of McCain, was being organised by Ms McCarthy and that at the time of the hearing it was probable that Ms McCarthy would continue to organise the industrial action. By virtue of section 793(1) her conduct is conduct of the AMWU. It is not necessary, given this finding, to make specific findings about the delegates role in organising the industrial action.
The orders
[34] In addition to seeking orders against the AMWU and its representatives McCain sought orders against all production employees at the plant. An application for substituted service had been lodged on 13 April 2010.
[35] Rule 10 of the Interim Fair Work Australia Rules 2009 provided that:
“If provision is made for personal, or other, service of a document in a proceeding before FWA, FWA may, on application of a party, make an order for substituted or other, service by letter, facsimile transmission, email, public advertisement or otherwise, for the purpose of bringing the document to the notice of the person to be served.”
[36] I declined to issue an order for substituted service directed at effecting service on the employees.
[37] Given the short notice of the hearing it was not conceivable that the AMWU, any more than the employer, could advise the employees of the application and the hearing date.
[38] Mr Ogilvie advised that he was seeking final orders against the AMWU and its representatives and an interim order against the employees, including employees who may not be members of the AMWU. 14
[39] Given that the employees had not had notice of the hearing I adjourned the hearing in respect of the application for orders directed at the employees and, after making the orders directed at the AMWU and its representatives, advised Mr Ogilvie to contact my chambers if McCain wished to seek orders against the employees.
[40] McCain also sought further orders namely:
“4. Other Directions to the AMWU
4.1 The AMWU must prepare a written notice, signed by an authorised official of the union, in the following terms:
“Fair Work Australia has issued a section 418 order to stop etc. (unprotected) industrial action.
The order is called the McCain Foods Wendouree Site Industrial Action Order 2010.
The order requires that there be no industrial action (including but not limited to stoppages of work, bans, limitations and restrictions on work) by the production employees of McCain Foods (Aust) Pty Ltd (McCain) who are members or are eligible to be members of the Australian Manufacturing Workers’ Union (AMWU) and whose employment is regulated by the McCain Foods (Aust) Pty Ltd Ballarat Enterprise Agreement 2009. The order also prevents the AMWU from aiding, abetting, counselling, procuring, authorising, directing, organising or encouraging any industrial action by those employees.
The order applies to:
• the AMWU and its respective officials, delegates, employees and agents; and
• all production employees of McCain who are members or are eligible to be members of the AMWU and whose employment is regulated by the McCain Foods (Aust) Pty Ltd Ballarat Enterprise Agreement 2009.
To comply with this order, you must proceed to work as normal or as directed by your manager/employer.”
4.2 The National Secretary of the AMWU (or their authorised delegate) must provide a copy of the notice in clause 4.1 above to Dean Farrant of Freehills, solicitors for the Applicant, on facsimile number 03 9288 1567 by [insert date and time].
4.3 The AMWU (through its National Secretary or his/her authorised delegate) must as soon as is reasonably practicable take all steps available to them under their rules to attempt to bring the existence of this Order to the attention of the AMWU Representatives and Employees and to notify them of the explicit withdrawal of any authorisation, encouragement or direction to engage in industrial action.
4.4 For the purposes of clarity, clause 4.3 does not require the National Secretary (or his/her authorised delegate) to advise any AMWU Representative whom the person reasonably believes has no involvement in the industrial affairs of the Employees.”
[41] Given I had declined to grant orders, even interim orders against the employees, I declined to make the order sought by McCain at 4.1 and 4.2. I also declined to make order 4.3 which in effect is an order that the AMWU comply with the order made.
[42] Section 418(2) of the FW Actrequires the AMWU to comply with the order. As such a further order directing them to comply is unnecessary.
[43] McCain sought orders for a period of 6 months. Mr Ogilvie stated that the period was reasonable in all the circumstances 15 but did not articulate any reasons why an order of 6 months duration was necessary in the circumstances. In light of the evidence that the industrial action was a 24 hour stoppage and with no evidence to support a conclusion that any further industrial action was planned or contemplated, I determined to make the order operate for a period of 1 month.
The evidence on 14 April 2010
[44] At the request of McCain the application was re-listed on 14 April 2010 and McCain sought orders directed against the employees. Ms McGrath now appeared on behalf of union members employed by McCain. No other employees appeared.
[45] Mr Neylon gave evidence that a copy of notice of listing and application were handed out to all production employees on night shift and day shift and that at 3pm afternoon shift employees would be provided with a copy. As well copies were posted on all company noticeboards in the cafeteria. Mr Neylon gave evidence that based on payroll deductions about 90% of employees were union members. 16
[46] Given my final decision it is unnecessary for me to decide if the non-union production employees on afternoon shift had sufficient notice of the hearing.
[47] Mr Neylon gave evidence that Ms McCarthy met with production employees on afternoon shift on 13 April 2010 prior to the commencement of their shift and the production employees did not report for work. 17 It was uncontested that work recommenced when the night shift workers attended for work as normal and that the industrial action had stopped.
[48] Mr Ogilvie sought orders against the employees on the basis that further industrial action was probable. He submitted that had employees been represented on 13 April 2010, orders would have been made against the employees in the same terms and for the same period of time as were made against the AMWU.
[49] Mr Neylon gave evidence that, in a dispute in February 2009, employees took industrial action and that orders were given by the Commission 18 even thought at the time the orders were made the industrial action had stopped. Commissioner Whelan held that it was probable, given the issue was unresolved, that should McCain seek to use contractors, the reaction of the AMWU and the employees would be to take industrial action.19
[50] Mr Neylon gave evidence that in his view further industrial action was probable because the underlying dispute was unresolved. 20
[51] While it is true that the dispute in this matter is unresolved, Mr Neylon gave evidence that the dispute would be notified to Fair Work Australia pursuant to the dispute resolution procedure in the Agreement. Ms McCarthy, who gave evidence on behalf of the AMWU, said that employees would not take industrial action if the matter were before Fair Work Australia. 21 This evidence of Ms McCarthy was not challenged.
[52] Mr Ogilvie submitted that given the AMWU’s contention that the industrial action occurred at the initiative of the employees and not the union, it was necessary to make orders binding the employees. Further, he sought to rely on the conduct of the employees in 2009 when they failed to follow the disputes procedure and took industrial action. Mr Ogilvie submitted that there was a “pattern of intermittent but continued industrial action.” 22
[53] Ms McGrath submitted that the evidence of one strike in 2009 was insufficient to find that there was a pattern of intermittent industrial action. I concur.
[54] The situation before me is significantly different to the situation before Commissioner Whelan in 2009. In this matter I made orders on 13 April 2009 directed at the AMWU. The industrial action has stopped. The matter is to be brought to Fair Work Australia for resolution. The uncontested evidence before the Tribunal is that the employees do not take industrial action if the matter is being resolved by Fair Work Australia. As such, there is no evidence to support a finding that employees are likely to take further industrial action over this issue. I therefore decline to grant the orders sought against the employees.
COMMISSIONER
Appearances:
N. Ogilvie for McCain Foods Australia Pty Ltd
E. McGrath and T. Hale for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
Hearing details:
2010
Melbourne
April 13, 14.
1 Transcript PN 19
2 Ibid PN 61-78
3 Ibid PN 146
4 Ibid PN 142-149
5 Ibid PN 84-85
6 Ibid PN 77
7 Ibid PN 94
8 Ibid PN 143-149
9 Ibid PN 63
10 Ibid PN 94
11 Ibid PN 148
12 Ibid PN 103
13 Ibid PN 115
14 Ibid PN 15-16
15 Ibid PN 25
16 Ibid PN 246-249
17 Ibid PN 253
18 PR985733
19 [2009]AIRC 154 at [17]
20 Transcript PN 264-265
21 Ibid PN 295-296
22 Ibid PN 309 and see CBI Constructors Pty Ltd v AMWU and another (1999) 87 IR 82 at 90 and Coal and Allied Operations v AFMEPKIU 73 IR 311 at 317-8.
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