Paper Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
[2013] FCA 453
FEDERAL COURT OF AUSTRALIA
Paper Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2013] FCA 453
Citation: Paper Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2013] FCA 453 Parties: PAPER AUSTRALIA PTY LTD TRADING AS AUSTRALIAN PAPER PTY LTD v AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS UNION (AMWU) AND THE OTHERS NAMED IN THE ATTACHED SCHEDULE File number: VID 353 of 2013 Judge: MARSHALL J Date of judgment: 10 May 2013 Catchwords: INDUSTRIAL LAW – application for interlocutory injunction – picket outside paper mill work site – whether serious issue to be tried – balance of convenience – construction of enterprise agreements – whether a clause of the relevant enterprise agreements obliged employees to attend for work – no serious issue to be tried – application dismissed. Legislation: Fair Work Act 2009 (Cth) s 50 Date of hearing: 10 May 2013 Place: Melbourne Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 23 Counsel for the Applicant: Mr N Green QC with Mr J D'Abaco Solicitor for the Applicant: Lander & Rogers Counsel for the First and Second Respondents: Mr J Fetter Solicitor for the Second Respondent: Mr G Borenstein
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION
VID 353 of 2013
BETWEEN: PAPER AUSTRALIA PTY LTD TRADING AS AUSTRALIAN PAPER PTY LTD
ApplicantAND: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS UNION (AMWU) AND THE OTHERS NAMED IN THE ATTACHED SCHEDULE
Respondents
JUDGE:
MARSHALL J
DATE OF ORDER:
10 MAY 2013
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The application for interlocutory relief is dismissed.
2.The directions hearing in the substantive application is adjourned to a date to be fixed.
3.Any submissions on costs in respect to the matter to be filed and served by the respondents within seven days of today’s date and any submissions in response, seven days after that.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION
VID 353 of 2013
BETWEEN: PAPER AUSTRALIA PTY LTD TRADING AS AUSTRALIAN PAPER PTY LTD
ApplicantAND: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS UNION (AMWU) AND THE OTHERS NAMED IN THE ATTACHED SCHEDULE
Respondents
JUDGE:
MARSHALL J
DATE:
10 MAY 2013
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The applicant, Paper Australia Pty Ltd (“Australian Paper”) applies to the Court on an urgent basis seeking interlocutory relief in respect of what it alleges to be a breach of s 50 of the Fair Work Act 2009 (Cth) (“the Act”). The relevant breach is said to have been made by three industrial organisations and certain of their members, being persons employed at Australian Paper’s Maryvale paper mill in Gippsland. Those organisations are the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“AMWU”), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“CEPU”) and the National Union of Workers (“NUW”). The NUW was not served in time for the commencement of this interlocutory application.
Australian Paper alleges that the employees concerned have breached clause 9.4 of the Maryvale Mill Electrical/Plumbing Maintenance Enterprise Agreement 2009-2013 and clause 9.4 of the Australian Paper (Enterprise) Agreement, 2009-2013 Maryvale Mill Mechanical Maintenance & Engineering Store. Clause 9 of each certified agreement is in materially identical terms.
Australian Paper contends that the relevant breach of s 50 of the Act arises from the failure of certain employees to comply with a direction that they carry out their duties in accordance with clause 9.4. The full text of clause 9.4 of each certified agreement is as follows:
The Company may direct an employee to carry out duties and use tools and equipment as may be required, and are within the employee’s skill, competence and training, provided such directions are safe, efficient, logical and legal.
Counsel for two of the three respondent unions (the AMWU and CEPU) contends that there is no serious issue to be tried in the proceeding and therefore the application for interlocutory relief should be dismissed. Counsel contends that clause 9.4 does not authorise Australian Paper to compel its employees to attend for work. Rather, he submits that the clause deals with the authority of the employer to direct an employee who has already attended for work as to the duties that such an employee may carry out whilst at work, including the use of tools and equipment as may be required or any such direction as to the performance of duties which complies with the concluding words of the sub-clause, being “safe, efficient, logical and legal”.
Factual setting
Australian Paper operates a pulp and paper manufacturing facility at Maryvale, in Gippsland, Victoria. It is a party to the enterprise agreements referred to above, with the CEPU and the AMWU. Australian Paper has a labour hire agreement with Chelgrave Contracting Australia Pty Ltd (“Chelgrave”) under which Chelgrave provides scaffolding labour for use in maintenance work for Australian Paper. Employees of Chelgrave are currently in dispute with that company and are not currently performing maintenance work at the Maryvale site. As a consequence, Australian Paper has directly employed scaffolders to perform work as required. There is evidence before the Court that the AMWU views the direct employment of scaffolders by Australian Paper at the Maryvale site as undermining the AMWU’s position in its dispute with Chelgrave.
On 3 May 2013, Mr Beales (the Human Resources & Employee Relations Manager for Australian Paper) was informed by Mr Ian Thomas (an AMWU organiser) that the Maryvale site was going to be “subject to a picket” concerning three issues - first, in response to the Chelgrave dispute, second in response to Australian Paper hiring scaffolders directly and third, concerning lack of employment of local labour at a construction project at the mill site.
In anticipation of the picket, Australian Paper arranged for security personnel to be at the site from 5.00 am Wednesday, 8 May 2013. The security company engaged liaised with Victoria Police to ensure that some officers would be present on 8 May 2013.
At about noon on 7 May 2013, Australian Paper sent an email to all of its employees at the site and attached a document called “Mill Notice”. The Mill Notice referred to advice Australian Paper had received of an indefinite stoppage by Chelgrave employees on 8 May 2013. It then said:
As with these events, there may be protest action. Despite any action that may take place, you must come to work as normal.
The notice then set out a series of suggestions to Australian Paper employees ranging from not engaging protesters in conversation, to contacting a supervisor if a worker is unable to access the place of work. The Mill Notice concluded as follows:
In respect to any action, should you find yourself unable to access an exit or entry, please return to your place of work and ring the main gate. If you are trying to enter site and your entry is blocked please make your way around to the front gate where you will be assisted with your entry into site.
Australian Paper anticipated from this Mill Notice that it was making it clear to its employees that they were expected to attend for work as normal.
Mr Beales gave evidence by way of affidavit concerning events on 8 May 2013. He said that the rostered starting time for maintenance employees varied from between 6.00 am to 7.30 am. He gave evidence of employees assembling at about 8.30 am at the Maryvale Recreation Oval near the Maryvale site. That oval is owned by Australian Paper but is not a location where it is expected that work performed by employees sought to be the subject of any relief would ordinarily be done.
Mr Beales gave evidence of “a conversation with Mr [Frank] Murtagh…the chief AMWU delegate for the Maryvale Site”. He asked Mr Murtagh what the intentions of the AMWU were and said “we want our maintenance people back at work”. Mr Murtagh replied, “get rid of the picket line and the coppers and we’ll come back to work”. Mr Beales said that he told Mr Murtagh that Australian Paper had no control over the picket and that the Victoria Police were there to protect people and property. Mr Beales said that he asked Mr Murtagh whether he could address the AMWU members to ask them to go back to work and Mr Murtagh did not respond. Mr Beales then spoke to three CEPU delegates and asked them why the CEPU members were not back at work as normal and said that he wanted them back at work.
Each of those delegates replied with words to the effect the CEPU members would not return to work until it was safe to do so and that they were afraid of reprisals if they attended work. At approximately 8.45 am, Mr Beales addressed about 140 of the maintenance employees who were at the oval and said words to the effect that:
I am now required to formally direct you to return to work. If you don’t return to work, you will be considered to be taking unlawful industrial action and the company will take action accordingly.
The maintenance workers commenced working on the afternoon of 8 May 2013. During that afternoon, work on the site proceeded in a normal fashion. Night shift continued normally.
On 9 May 2013, Mr Beales said that, at about 5.30 am, the picketers commenced to assemble at the main gate to the site, preventing cars from accessing the site via the main gate and at another entrance. Mr Beales stated, on information and belief, that Mr Murtagh was allowing persons to pass through the picket line who were either management or production staff but not maintenance staff. Mr Beales also gave evidence that he spoke with Mr Ian Thomas and asked him “why are your members outside? We want our employees back at work” (emphasis added). Mr Thomas is said to have replied, “provide a safe workplace” or words to that effect. Mr Beales said that he told Mr Thomas that Australian Paper had engaged security and had directed all employees to return to work and that that direction had been ignored. At 3.00 pm on 9 May 2013 (yesterday), that was the situation at the site. When the matter came on for hearing at 9.45 am this morning, counsel for Australian Paper did not present any updated factual details relevant to the proceeding at that time. However, during the course of the morning, counsel for the AMWU and CEPU informed the Court that his clients had given directions to all members employed at the site to return to work. Counsel was not in a position to present affidavits to that effect at the time, but informed the Court that he would endeavour to do so as soon as possible. Later, he filed affidavits from representatives of the AMWU and CEPU, which contained material showing that those organisations had directed their members on the site to return to work.
Consideration
The test for the grant of interlocutory relief is well known. There must be a serious issue to be tried and the balance of convenience must favour the grant of interlocutory relief. In this application, notwithstanding the cogent, competent and articulate submissions of senior and junior counsel for the applicant, I agree with the contention of counsel for the unions that there is no serious issue to be tried in this proceeding. Clause 9.4 of the relevant agreements does not compel an employee of Australian Paper to attend for duty after a direction to do so.
Clause 9.3 addresses the only remedy open to the employer as a consequence of an employee not attending for duty without authorisation under the agreements. It states:
An employee not attending for duty without authorisation shall lose their pay for the actual time of such non-attendance.
That consequence is a loss of pay for the actual time for non-attendance. It is trite that a certified agreement will only be breached where a person who is under an obligation pursuant to it fails to carry out that obligation or contravenes the provision. Clause 9.4 casts no obligation on an employee who fails to attend for duty when requested to do so by Australian Paper. Rather, the clause is concerned with the managerial prerogative of Australian Paper to direct an employee to carry out particular duties, having presented for work at the place where work is expected to be performed.
An employee would be expected to carry out duties relevant to the particular classification under which an employee is employed. Additionally, clauses such as clause 9.4 give employers flexibility to direct their employees as to the carrying out of particular duties within the employee’s skill, competence and training which may be associated with those which they would ordinarily perform or in special circumstances carry out, rather than what they would ordinarily perform. For example, if a particular section of a workplace was inaccessible, an employee might be directed to carry out duties at another location of the employer’s establishment. A clause such as clause 9.4 would also permit an employer to direct an employee to use new tools or equipment based on new technology, provided sufficient prior training had occurred.
The point of the above discussion is to illustrate that clause 9.4 is only relevant once an employee attends for duty at a place where the employee is expected to perform work. Having attended for duty, the employee is subject to any appropriate direction by Australian Paper in accordance with that subclause. The consequence of not attending for duty is elsewhere addressed, in clause 9.3. Counsel did not direct the Court to any authority dealing with a provision akin to clause 9.4 in any other agreement. The lack of authority on the point may do no other than to emphasise that it is a wholly inappropriate provision to be relied on to force recalcitrant workers back to the workplace.
Counsel for the AMWU and CEPU contended that it was akin to enforcing slavery. While that categorisation may not be totally apposite, it is certainly understandable that the submission is made. Industrial relations laws in this country generally do not command attendance at work, save in circumstances of unlawful industrial action, but punish failure to attend by not requiring payment for work not done in the time when work is expected to be done. That is the work that clause 9.3 does.
The balance of clause 9 of each certified agreement deals with issues such as engagement by the week, casual employment, provision of a safe work environment and obligations of employees whilst at work. Those matters, again, deal with what applies at the workplace by someone performing work.
The failure of the relevant employees to attend for work may have implications for them in respect of their contracts of employment and it is possible that their employer may wish to bring a proceeding in the Supreme Court of Victoria as a consequence. This Court can only make orders if it is satisfied that it has jurisdiction to do so. The Court does not view the matter as to whether clause 9.4 of the agreements has been breached as one which is arguable. In my view, it is clear that the relevant provision does not compel an employee to attend for duty pursuant to a request by the employer that the employee do so.
Counsel for Australian Paper submitted that attendance by employees at an oval approximately 50 metres from the mill site where they held their meetings and met with union officials had the consequence that they were actually on duty. I do not accept that view of the matter. The employees were being requested to attend for duty when they were being addressed by Mr Beales at the oval and were refusing to do so. The whole point of the application before the Court was to attempt to compel them to report for duty. Notwithstanding the fact that the Maryvale Recreation Oval is owned by Australian Paper and located near to the site, the Court rejects the submission that those employees gathered at the oval were “on duty” there.
Accordingly, the Court will order that the application for interlocutory relief is dismissed. I do so having regard to my view that there is no serious issue to be tried in the proceeding.
The formal order of the Court is as follows:
1.The application for interlocutory relief is dismissed.
2.The directions hearing in the substantive application is adjourned to a date to be fixed.
3.Any submissions on costs in respect to the matter to be filed and served by the respondents within seven days of today’s date and any submissions in response, seven days after that.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate:
Dated: 17 May 2013
SCHEDULE OF RESPONDENTS
First Respondent: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU)
Second Respondent: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)
Third Respondent: National Union of Workers (NUW)
Fourth Respondent: Richard Allgood
Fifth Respondent: Matt Anderson
Sixth Respondent: Darren Attard
Seventh Respondent: Shane Bilson
Eighth Respondent: Adam Blanchard
Ninth Respondent: Michael Bradley
Tenth Respondent: Alan Brady
Eleventh Respondent: Frank Brunner
Twelfth Respondent: Russel Buckley
Thirteenth Respondent: Lennie Byl
Fourteenth Respondent: Darrin Canning
Fifteenth Respondent: Mario Cardillo
Sixteenth Respondent: John Carstein
Seventeenth Respondent: Ashley Crawford
Eighteenth Respondent: John Croft
Nineteenth Respondent: Mitchell Cummin
Twentieth Respondent: Justin Daniel
Twenty First Respondent: Lyndon Davey
Twenty Second Respondent: Brendan Deane
Twenty Third Respondent: Matt Dick
Twenty Fourth Respondent: Jack Dioderico
Twenty Fifth Respondent: Rob Donaldson
Twenty Sixth Respondent: Graham Edebohis
Twenty Seventh Respondent: Michael Everett
Twenty Eighth Respondent: Kelvin Farley
Twenty Ninth Respondent: Leigh Fletcher
Thirtieth Respondent: Daryl Flower
Thirty First Respondent: David Fromberg
Thirty Second Respondent: Darren Fullerton
Thirty Third Respondent: Brian Gray
Thirty Fourth Respondent: Zac Gray
Thirty Fifth Respondent: Steve Hale
Thirty Sixth Respondent: Garry Hammond
Thirty Seventh Respondent: Justin Hanks
Thirty Eighth Respondent: Wayne Hoggard
Thirty Ninth Respondent: Glenn Holt
Fortieth Respondent: Daryl Hore
Forty First Respondent: Rick Irving
Forty Second Respondent: Adam Jaensch
Forty Third Respondent: Peter Johnson
Forty Fourth Respondent: Robert Johnson
Forty Fifth Respondent: Daniel Jones
Forty Sixth Respondent: Shane Joyce
Forty Seventh Respondent: Mitchell Juha
Forty Eighth Respondent: Brett Kenney
Forty Ninth Respondent: Oakley Kerr
Fiftieth Respondent: Ken Kesper
Fifty First Respondent: Julian Kessner
Fifty Second Respondent: Trevor King
Fifty Third Respondent: Phil Kingsley
Fifty Fourth Respondent: Blake Kistler
Fifty Fifth Respondent: Norman Laukens
Fifty Sixth Respondent: Tom Long
Fifty Seventh Respondent: David Lothian
Fifty Eighth Respondent: Mark Ludlow
Fifty Ninth Respondent: Brad Luxford
Sixtieth Respondent: Neil Mackenzie
Sixty First Respondent: Aaron Makepeace
Sixty Second Respondent: Joseph Makowski
Sixty Third Respondent: Todd Malone
Sixty Fourth Respondent: Matthew Marshal
Sixty Fifth Respondent: Neal Matthews
Sixty Sixth Respondent: Robert May
Sixty Seventh Respondent: Justin Mccabe
Sixty Eighth Respondent: Bruce McGrath
Sixty Ninth Respondent: Shane McLachlan
Seventieth Respondent: Terrance Meehan
Seventy First Respondent: Geoff Mills
Seventy Second Respondent: Greg Morley
Seventy Third Respondent: Wayne Morley
Seventy Fourth Respondent: Peter Morley
Seventy Fifth Respondent: Frank Murtagh
Seventy Sixth Respondent: Brian Mynard
Seventy Seventh Respondent: Mark Olivier
Seventy Eighth Respondent: Peter Panayiotou
Seventy Ninth Respondent: Stuart Passalaqua
Eightieth Respondent: Tom Pearce
Eighty First Respondent: Matthew Phillips
Eighty Second Respondent: Rob Piper
Eighty Third Respondent: Joe Plozza
Eighty Fourth Respondent: Alan Possingham
Eighty Fifth Respondent: Daryl Rawson
Eighty Sixth Respondent: Peter Read
Eighty Seventh Respondent: Brent Reside
Eighty Eighth Respondent: Chris Ritchie
Eighty Ninth Respondent: Jarrad Robinson
Ninetieth Respondent: Brendan Rosa
Ninety First Respondent: Peter Runge
Ninety Second Respondent: Shaun Schofield
Ninety Third Respondent: Brad Sherry
Ninety Fourth Respondent: Craig Skinner
Ninety Fifth Respondent: Ian Smethurst
Ninety Sixth Respondent: Peter Smith
Ninety Seventh Respondent: Anthony Spagnalo
Ninety Eighth Respondent: David Speirs
Ninety Ninth Respondent: Gary Speirs
One Hundredth Respondent: Sefton Stoddart
One Hundred and First Respondent: Warren Stuckey
One Hundred and Second Respondent: Paul Tainsh
One Hundred and Third Respondent: James Timmer-Arends
One Hundred and Fourth Respondent: Nick Tiziani
One Hundred and Fifth Respondent: James Tosh
One Hundred and Sixth Respondent: Matt Tosh
One Hundred and Seventh Respondent: Blair Turnbull
One Hundred and Eighth Respondent: Matt Turnbull
One Hundred and Ninth Respondent: William Van Sambeek
One Hundred and Tenth Respondent: Adrian VanDam
One Hundred and Eleventh Respondent: Col Vardy
One Hundred and Twelfth Respondent: Patrick Vullerman
One Hundred and Thirteenth Respondent: Michael Warne
One Hundred and Fourteenth Respondent: Barry Watkins
One Hundred and Fifteenth Respondent: William Watt
One Hundred and Sixteenth Respondent: Tayler Weatherill
One Hundred and Seventeenth Respondent: Matthew Webber
One Hundred and Eighteenth Respondent: Paul Wells
One Hundred and Nineteenth Respondent: Matt Whitmore
One Hundred and Twentieth Respondent: Geoff Willis
One Hundred and Twenty First Respondent: Clint Wurlod
One Hundred and Twenty Second Respondent: Wayne Zelesiak
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