Re Castlemaine Perkins Pty Ltd - [2018] FWC 2979

[2018] FWC 2979

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.229—Bargaining order

Castlemaine Perkins Pty Limited T/A Castlemaine Perkins

United Voice

(B2018/223)

Commissioner Hunt

BRISBANE, 3 AUGUST 2018

Application for bargaining order – alleged failure to meet good faith bargaining requirements –s. 228(1)(e) – alleged capricious or unfair conduct that undermines freedom of association and collective bargaining – preventing or hindering access to site during rally which coincides with industrial action – false and misleading statements to the media about the future of the brewery – bargaining order issued.

Castlemaine Perkins Pty Limited T/A Castlemaine Perkins (CPPL) has applied under s.229 of the Fair Work Act 2009 (the Act) for a bargaining order against United Voice (United Voice/Union). CPPL owns and operates the XXXX brewery in Milton, Queensland (the Brewery) at which a number of beers, including XXXX, Tooheys and Hahn are brewed, packaged and distributed. CPPL is wholly owned by the Japanese company Lion.

The order sought by CPPL would require United Voice to be restrained from preventing or hindering access to the Brewery, and restrain United Voice from making certain statements and representations to the media and on social media.

Background

The Brewery is situated on Milton Road, Milton, at the intersection of Paten Street. Roughly speaking, Milton Road marks the southern border of the Brewery site, Paten Street the eastern border and Black Street the northern border.

Approximately 150 CPPL employees work at the Brewery. This includes approximately 99 employees who perform brewing, packaging, stores, electrical, mechanical and other production work (the Employees).

The Castlemaine Perkins Pty Limited Certified Agreement 2014-2017 (the Agreement) is the current industrial instrument for the Employees at the Brewery. The Agreement reached its nominal expiry date on 30 September 2017. The Agreement covers CPPL, the Employees, United Voice, and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU).

On or around 24 May 2017 CPPL initiated bargaining for a proposed enterprise agreement to replace the Agreement (Proposed Agreement). On 31 May 2017 CPPL distributed a notice of employee representational rights to Employees to be covered by the Proposed Agreement.

There are three bargaining representatives for the Proposed Agreement; CPPL, United Voice and the CEPU. The bargaining representatives have conducted over 19 bargaining meetings together, with the first meeting held on 15 June 2017.

There are a number of key issues that remain in dispute between the parties in bargaining for the Proposed Agreement, including:

(a)   CPPL’s use of third party or supplementary labour;
(b)   consultation and dispute resolution;
(c)   salary increases;
(d)   duration and nominal expiry date;
(e)   a clause proposed by United Voice which refers to “no site closure during the term of the agreement” and the circumstances in which “stand downs” may occur. CPPL is unwilling to agree to this as there are circumstances beyond its control that may require a site closure, such as fire, extreme weather events, etc.; and“effective teamwork” clause (i.e. CPPL seeks this clause in the Agreement to be removed as it is aspirational in nature. United Voice seeks a revised clause which effectively provides that salaried staff are not to undertake certain tasks without being requested to do so by Employees).

The third party labour issue is particularly contentious and has taken up a significant amount of time in bargaining. CPPL previously expressed concerns to United Voice that it considers that the Union is seeking clauses which contain non-permitted matters. In furthering the Employees’ bargaining position, United Voice made an application for a protected action ballot order which was opposed by CPPL.

On 27 September 2017 I issued a decision dismissing United Voice’s application for a protected action ballot order (PABO) on the basis that United Voice was not genuinely trying to reach an agreement after 13 September 2017 because of its pursuit thereafter of its proposed contractor’s clause which is a non-permitted matter.[1]

Bargaining dispute application

On 7 February 2018 CPPL applied to the Commission under s. 240 of the Act for assistance to resolve some of the unresolved bargaining issues.

An initial s.240 conference was convened before me at the Fair Work Commission (the Commission) premises on 16 February 2018. A further s.240 conference was scheduled to be held at the Brewery on 15 March 2018 to allow all relevant delegates and bargaining representatives to be present. The parties were tasked with the following obligations:

(a) CPPL to provide its latest draft proposal by 19 February 2018; and
(b) United Voice to provide its response and any counter proposal by 26 February 2018.

On 26 February 2018 United Voice made another application for a PABO. This was not opposed by CPPL and accordingly the order was made by Deputy President Gostencnik on 28 February 2018 with voting to close on 22 March 2018.[2]

On 7 March 2018 CPPL corresponded with United Voice as follows:

“Dear Gary (sic)

Concerns about bargaining

The Company is concerned that United Voice continues to advance claims about non-permitted matters.

We are also concerned that United Voice has made false or misleading statements about the Company’s bargaining position, and that this conduct is inconsistent with United Voice’s good faith bargaining obligations under the Act.
Unless these matters are resolved, industrial action is unlikely to be protected. I have set out below the Company’s concerns in detail, together with a proposal to resolve these issues and take bargaining forward.
Non-permitted matters

As per your letter to the Fair Work Commission dated 23 February 2018, we understand United Voice is currently seeking to include in the proposed agreement the supplementary labour clause attached that letter. The Company has the following concerns about non-permitted matters within this clause (many of which we have raised with you previously in relation to previous versions of your proposed clause):

Clause 10.5.1 - we are concerned that United Voice intends by cl 10.5.1 that the Company be prevented from engaging third party labour other than in very limited circumstances – i.e. only where 3PL is (i) temporary, and (ii) in addition to permanent staffing numbers, and (iii) during a peak demand period or project. To the extent that cl 10.5.1 would impose a restriction on the Company’s capacity to engage 3PL outside of these circumstances (e.g. to cover sick leave, long service leave or fluctuations in market demand that may not be considered a ‘peak demand period’), it is clearly not permitted. This issue could be resolved if United Voice agreed to amend cl 10.5.1(c) as follows: ‘However, nothing in this agreement prevents the employer from engaging supplementary labour in addition to permanent staffing numbers.’
Clause 10.5.2 states that the employer must consult on certain matters with employees and their representatives before the employer engages supplementary labour to perform work at the brewery. As stated in my letter of 2 February 2018, we accept that a mere obligation to consult in this context will be a permitted matter. However, this is not how United Voice has interpreted and sought to apply the consultation requirement in the contractors clause in the existing agreement. United Voice’s interpretation and application of the existing consultation obligation renders it a very substantial restriction on the Company’s right to engage indirect labour, and has resulted in significant delay and disruption. Further, we are concerned that United Voice will seek to apply cl 10.5.2(b) in way that results in consultation covering an unlimited range of issues, and cl 10.5.2(c) in a way that results in consultation continuing indefinitely (in my letter of 7 February 2018 I described similar concerns).
These issues could be resolved if United Voice agreed to:

a. Amend cl 10.5.2(b) to delete the words ‘, inter alia,’; and
b. Replace cl 10.5.2(c) with a new subclause as follows: ‘This clause does not require the employer to consult in relation to each occasion on which it engages engage supplementary labour. Rather, consultation under this clause is only required before the employer engages supplementary labour in a different way to which it has been engaged in the past. Consultation need only be for the duration necessary to cover the matters described in subclauses (a) and (b)’

Clause 10.5.3 appears to regulate the wages and conditions of any employees of contractors or labour hire firms, even if those employees do not perform agreement covered work. To this extent, the clause has no connection with agreement-covered employees and is not permitted. There also appears to be a typographical error in this clause. These issues could be resolved if United Voice agreed to replace cl 10.5.3(a) with a new clause as follows: ‘Where employees of contractors of labour hire firms perform work that is the same as work covered by this agreement, the employer will ensure those employees are engaged on rates of pay (including any applicable casual loading) no less favourable than the base rates of pay provided for the same work covered by this agreement.
The Company’s concern that United Voice is knowingly advancing claims about non-permitted matters (and intends the proposed supplementary labour clause to operate as a substantive restriction on the Company’s capacity to engage contract labour3) is borne out by the comments that United Voice has made to various media outlets immediately following the making of the protected action ballot order on 28 February 2018. We address this issue in further detail below.

False and misleading statements
We are concerned that United Voice has made false or misleading statements to the media. For example:

·   On 1 March 2018 in a United Voice media release (‘XXXX workers take action to keep Qld jobs local’), Damien Davie is cited as having said that XXXX was ‘trying to outsource jobs to interstate and overseas providers’ and had ‘threatened to shut down our legendary Milton brewery if they don’t get their way on shipping in cheap labour from over the border’. These claims are unfounded and false. Neither I nor anyone else representing the Company has stated that we are trying to outsource jobs to interstate and overseas providers. The Company stated publicly last year that United Voice’s claims that the brewery was closing were false. The combination of these two inaccuracies is clearly misleading. Further, it is apparent that this statement relates to United Voice’s proposed supplementary labour clause (as there is no other outstanding Untied Voice claim in bargaining that even loosely touches on these issues);
·   On 1 March 2018 in a Nine News Queensland video report, a Union Voice representative said ‘The workers are always working under the threat of the brewery being shut down or volume being moved down south.’ This statement is misleading as it suggests the Company has threatened to shut down the brewery when it has not (as noted above); and
·   On 2 March 2018 in a Courier Mail article (‘XXXX staff threaten to strike over job security’), Damien Davie is quoted as having said ‘But XXXX management is threatening to shut down our legendary Milton brewery if they don’t get their way on shipping in cheap labour from over the border.’ This statement is similarly false and misleading. Again, it is apparent that this statement relates to United Voice’s proposed supplementary labour clause.
In addition, we are concerned that United Voice is seeking to include misleading content in the proposed agreement. The proposed supplementary labour clauses states that ‘[i]t is not the intention of the employer to engage supplementary labour to perform core production duties’, As set out in my letter of 2 February 2018 in relation to the contractors clause in the existing agreement, this statement is not accurate. It would be misleading to include this provision in the new agreement.
As a result of the above misleading and inaccurate claims, the Company is concerned that United Voice is engaging in capricious or unfair conduct that is inconsistent with its good faith bargaining obligations.

Proposed industrial action

From the above media statements, it is clear that United Voice is organising industrial action to advance its position regarding supplementary labour. In fact, it appears that the supplementary labour clause is again United Voice’s key outstanding claim in bargaining.
The United Voice media release mentioned above states that ‘Around 100 XXXX workers will vote to take industrial action after the iconic Queensland company has refused to guarantee jobs will be kept local.’ In the Courier Mail article mentioned above, Damien Davie is quoted as saying ‘Queenslanders need to get behind our workers when they take action’ because of issues regarding the Company’s (alleged) proposed use of supplementary labour (e.g. ‘cheap labour from over the border’ etc.). These statements clearly show that 3PL is a primary driver for the proposed industrial action.
Given our concerns about the non-permitted matters in United Voice’s proposed clause, we believe that United Voice is organising industrial action for the purpose of supporting or advancing claims that are not only about permitted matters, and United Voice does not reasonably believe otherwise. Industrial action taken will therefore not be protected in accordance with s 409(1)(a) of the Act unless United Voice addresses the concerns that the Company has about the proposed supplementary labour clause (as set out above).

Next steps
We request that United Voice reconsider its position on its proposed supplementary labour clause and provide an amended proposal that addresses the concerns that we have raised above. As part of this, we ask that United Voice provide an explanation as to its interpretation of the proposed clause, how it is intended to operate, and how it is said to only include permitted matters. We ask that this response be provided prior to the conference before Commissioner Hunt on 15 March 2018.
We also ask that United Voice provide an undertaking that it will refrain from making false or misleading statements to the media (including any further statements along the same lines as those set out above).
If the 3PL issue is not resolved at the 15 March conference, and if United Voice does not address the Company’s concerns about non-permitted matter, we reserve our rights to respond to the upcoming industrial action, which may include seeking orders under s 418 of the Act to stop it. Of course, it is the Company’s preference that the parties instead focus on reaching an agreed position in relation to the proposed supplementary labour clause, and the broader agreement. Accordingly, we will be asking the FWC to make a recommendation that no industrial action be organised until the supplementary labour hire clause is agreed.”

On 12 March 2018 United Voice corresponded with CPPL as follows:

“Dear Ms Bell,
Re: Concerns about bargaining
I am in receipt of your letter dated 7 March 2018.
Non-permitted matters
You have been previously advised that the union does not intend to seek any non-permitted matters in the proposed agreement. We have previously provided you with draft clauses about job security and supplementary labour which the parties have been discussing, and suggesting changes.
Your latest correspondence invites some further revisions to our draft clause, some of which we believe we can accommodate.
I have attached a revised clause for your consideration.
I confirm that our interest in confirming the applicable pay rates for supplementary labour is confined to the rates applicable to work covered by the agreement. With further discussion, we should be able to find agreed wording to capture our mutual intent.
We are hopeful of reaching agreement with you for supplementary employees of labour hire companies to be paid the rates that are agreed as applicable to the relevant work.
Please note that the issue of pay will need to be discussed further and we have not included that component in our draft.
False and misleading statements
We deny that United Voice has made false or misleading statements to the media or are seeking to include any misleading content in the agreement.
Proposed industrial action
Protected industrial action is an integral part of the bargaining scheme under the Fair Work Act 2009. At this point, a ballot process is underway and has not concluded. We will reserve further response on your correspondence until after the declaration of the protected action ballot.
Bargaining good faith

United Voice is committed to bargaining in good faith with the Company. If any party has concerns that another negotiating party is not meeting good faith bargaining requirements, it is open for that party to provide a written notice under section 229 (4)(b) of the Act, and invite a response.
Next Steps
United Voice believes we are making progress in negotiations with the Company. We are optimistic that we can further narrow down the areas of disagreement.
Your application under s 240 (82018/83) stated that your purpose of making the application was “CP is hopeful that with the Commission’s assistance, the parties can return to the bargaining table and reach agreement on the outstanding items.”
As per our previous advice, we believed that the initial FWC conference of 16 February 2018 was a useful circuit breaker which has assisted the parties in clarifying a constructive process for our ongoing negotiations. It is up to the parties ourselves to concentrate on discussing and developing the content. With those matters in mind, we previously advised you that we did not wish to attend any FWC-assisted discussions after 15 March 2018.
Subsequently, we have received your letter of 7 March. We have carefully considered the penultimate sentence in your letter, viz., “…we will be asking the FWC to make a recommendation that no industrial action be organised until the supplementary labour hire clause is agreed. “
We consider that statement to reveal an extraordinary abuse of process by the Company and to be contrary to your stated intentions of seeking a conference under section 240 of the Act. United Voice take the view that you are seeking to misuse the s. 240 conference for collateral and inappropriate purposes. On that basis, we will not be attending the FWC conference on 15 March 2018, and confirm that we will not participate any further in FWC matter number B2018/83.
We will correspond with Commissioner Hunt and advise of our position.
We are keen to meet with the Company to progress negotiations and wish to schedule a timetable of meetings with you for that purpose. We attach our comments on the combined negotiating document.

…”

On the same date United Voice corresponded with the Commission as follows:

“Dear Commissioner,
Re: 82018/83, Application by Castlemaine Perkins Pty Limited
United Voice refers to the above matter which was subject to a conference on 16 February 2018.
The matter is currently listed for Conference on Thursday 15 March 2018.
We advise that United Voice respectfully advises that we no longer wish to participate in any further conciliation regarding matter number B2018/83.
On that basis, we advise that will not attend the Conference on 15 March 2018 and request that the listing be cancelled and the file closed.

…”

On 14 March 2018 CPPL corresponded as follows:

“Dear Commissioner
B2018/83 Conference listed for 15 March 2018
Further to our letter of 13 March 2018, Castlemaine Perkins Pty Ltd (the Company) has corresponded with the respondent unions, United Voice and the CEPU, about the conference listed with you at 8am tomorrow.

Unfortunately, both unions have refused to change their position and have confirmed that they will not attend the conference tomorrow.
The Company is disappointed with this outcome, however in the circumstances we have reluctantly agreed to cancel the listing for the conference on 15 March 2018.
The parties have instead agreed to meet on 26 March, 17 April and 18 April 2018, and are in discussion about additional dates.
The Company sees significant value in continuing discussions with the Commission’s assistance, and we would very much like the opportunity to request further assistance in future. We respectfully request that our application remain ‘open’ and that the Commission instead list the matter for a ‘report back conference’ at a time convenient to the Commission in approximately 6 weeks’ time (i.e. after the parties have met on a number of occasions to try to progress negotiations).
We thank the Commission for its assistance in this matter to date.”

At the request of CPPL the conference was cancelled and a report back date was listed for 23 April 2018.

On 28 March 2018 my Associate wrote to the parties as follows:

“Dear parties,
The Commissioner notes that the parties are meeting on 17 April 2018 ahead of the scheduled report back conference on 23 April 2018.
The Commissioner is available on 18 April 2018 and inquires if it would it be of any assistance to the parties to have a conference before the Commissioner on that day. The Commissioner can attend on site if suitable.”

CPPL corresponded that it accepted the Commission’s assistance to attend an on-site meeting on 18 April 2018. The correspondence also noted that CPPL confirmed the cancellation of a planned 4 April 2018 bargaining meeting between the parties (without the Commission’s assistance).

Correspondence from United Voice on 29 March 2018 and 4 April 2018 declined the Commission’s offer to attend on 18 April 2018. United Voice confirmed that it did wish to meet with CPPL on 18 April 2018, but the meeting would not be a s.240 conference facilitated by the Commission.

On 5 April 2018 CPPL corresponded as follows:

“Please be advised due to operational matters the company is unable to meet on 17 and 18 April 2018.
We offer an alternate date of Wednesday 11 April 2018 from 10am – 12pm.
Please advise if you are able to make this date & time.”

Having disclosed to the parties that I was available to convene a conference at 2pm on 11 April 2018, but not earlier, the CEPU corresponded that Mr Garry Rogers, Organiser was available at 10am but not at 2pm. CPPL corresponded that it considered a meeting at 2pm, facilitated by the Commission, to be appropriate and invited the CEPU to send an alternate representative if it so wished. United Voice corresponded that it could not meet at 2pm.

At this point in time I considered it inappropriate for United Voice to resist the scheduling of further s.240 conferences. While the listed conference of 15 March 2018 was vacated at CPPL’s request, I determined it appropriate for further s.240 conferences to be convened to deal with the s.240 application before the Commission. The following correspondence was sent to the parties on 6 April 2018:

“Sent on behalf of Commissioner Hunt
Dear Parties,
A s.240 application has been made to the Commission by the applicant company. I consider that the application made empowers the Commission to deal with the dispute if the bargaining representatives are unable to resolve the dispute.
A conference will be convened at 10.00am on Wednesday, 11 April 2018 at the work premises. The conference will proceed for a minimum of two hours.
All unions representing members’ interests are directed to attend and actively participate in the conference. If the site organiser or official is not available to attend due to other pressing commitments, an alternate shall attend in their place and actively participate. It is expected the applicant company will release all relevant delegates to attend and actively participate in the conference.
At this conference, further dates will also be set for conferences with the Commission’s assistance pursuant to the s.240 application, together with other dates where the parties will meet without the Commission’s assistance.
A Notice of Listing will shortly be sent to all parties.”

Application for a bargaining order

On 3 April 2018 CPPL made application for a bargaining order against United Voice, the subject of this Decision. Proposed dates for the filing of material were proposed by CPPL and discussed with the legal representative of United Voice.

On 9 April 2018 my Associate wrote to the parties as follows:

“Dear parties,
I refer to the below email of 5 April 2018, containing draft Directions by consent.
The Commissioner will be meeting with the parties on Wednesday, 11 April 2018 in relation to the s.240 application (B2018/83).
If on that date, the Commissioner considers that Directions are necessary in relation to the s.229 application (B2018/223) they will be issued accordingly with the dates adjusted.”

On 11 April 2018 I facilitated the first s.240 conference at the Brewery premises with all bargaining representatives present. Following the conference relevant Employees took protected industrial action consisting of two consecutive 30 minute work stoppages from 1.00pm, and a further two consecutive 30 minute stoppages from 10.00pm.

Further protected industrial action was taken on 18 April 2018.

On 18 April 2018 directions were issued for the filing of material relevant to this application. The matter was ultimately listed for hearing on 17 and 18 May 2018. In the meantime I facilitated further in-person s.240 conferences at the Brewery on 23 April, 1 May and 11 May 2018.

Draft Order

The order sought by CPPL is as follows:

“A. The Fair Work Commission orders as follows:
1. Until the Proposed Agreement is approved by the Fair Work Commission pursuant to section 186(1) of the FW Act, or further order, United Voice (whether by itself, its officers, servants, agents or howsoever otherwise) be restrained from:

(a)preventing, hindering or interfering with, or attempting to prevent, hinder or interfere with, free access to and free egress from the Site by any person or vehicle, whether by themselves or by any object or vehicle; and
(b)advising, causing, inducing, procuring or inciting any person to do or attempt to do any of the things restrained by sub-paragraph 1(a) of these orders.

2. Until the Proposed Agreement is approved by the Fair Work Commission pursuant to section 186(1) of the FW Act, or further order, United Voice (whether by itself, its officers, servants, agents or howsoever otherwise) be restrained from making, publishing, disseminating or distributing any statement or representation (whether in or to the media, in or on social media or howsoever otherwise) to the effect that:

(a)CPPL has threatened to, is threatening to, wants to or intends to close or shut down the Site;
(b)CPPL has threatened to, is threatening to, wants to or intends to outsource, shift or move jobs from the Site to interstate or offshore;

(c)CPPL has threatened to, is threatening to, wants to or intends to increase its use of interstate labour at the Site;

(d)CPPL has threatened to, is threatening to, wants to or intends to increase its usage of contractors, casuals, supplementary labour or other third party labour (howsoever described) at the Site at the expense of, instead of or in exchange for, existing employees or workers at the Site;

(e)CPPL has threatened to, is threatening to, wants to or intends to outsource, shift or move production from the Site to interstate or offshore;

(f)any industrial action in relation to the Site is being organised by United Voice and or taken by Employees:
(i)for the purpose of supporting or advancing claims to prevent, limit or restrict CPPL from engaging or using contractors, supplementary labour or other third party labour (howsoever described);
(ii)for the purpose of supporting or advancing claims to keep jobs and production at the Site local, in Queensland or on home turf; or
(iii)because of concerns about jobs and production at the Site being moved interstate or offshore.”

The draft order also included obligations on United Voice to inform its employees and members of the existence of the order (when made), including emailing employees and members, sending an SMS and putting the details of the order (when made) on the United Voice Facebook page and website.

Hearing – 17 and 18 May 2018

At the hearing before me on 17 and 18 May 2018 Mr M. Follett of Counsel appeared for CPPL. Mr R. Reed of Counsel appeared for United Voice. Leave was granted to both parties pursuant to s.596(2)(a) of the Act on account of the complexity of the issue.

The following people gave evidence and were cross-examined:
- Ms Michelle Wicks, Workplace Relations Leader, Lion;
- Mr Andrew Campfield, People and Culture Leader, Lion;
- Mr Peter Shepherd, Managing Director, HATAMOTO Holdings Pty Ltd;
- Mr Adam Howard, Security Contractor to HATAMOTO Holdings Pty Ltd;
- Mr Damien Davie, Coordinator, United Voice; and
- Ms Ellie Bassingthwaighte, Solicitor, Hall Payne Lawyers (not required for cross-examination).

Video and photographic evidence of a demonstration outside of the Brewery on 26 March 2018 was admitted.

Evidence of Campfield

Mr Campfield’s evidence is that on 11 April 2018, following the s.240 bargaining conference referred to at [27], he observed and photographed Mr Davie standing in the middle of the road outside of the Brewery. He observed that Mr Davie stopped approximately four vehicles from turning into a road near the Brewery where Employees taking protected industrial action had been marching. The Employees then assembled on a grass patch near the entrance to the Brewery but did so without obstructing entry or egress.

Evidence of Wicks

Ms Wicks is responsible for participating in and managing CPPL’s industrial relations and enterprise bargaining matters. Bargaining meetings have taken place on over 20 occasions to attempt to reach a Proposed Agreement.

CPPL did not oppose the PABO sought by United Voice on 26 February 2018 despite having some concerns about United Voice’s proposed contractors’ clause containing non-permitted matters. Ms Wicks stated that no opposition was made at the time because United Voice had made changes to the PABO it was seeking, had made changes to the draft clause, and had committed to attending a s.240 conference on 15 March 2018.

Ms Wicks was not present at the Brewery on 26 March 2018 when the first work stoppage occurred.

On 5 April 2018 United Voice notified CPPL that United Voice intended to organise, and its members intended to take protected industrial action on 11April 2018. CPPL wrote to the legal representative of United Voice as follows:

“…..Given that the last instance of industrial action organised by your client coincided with an obstructive picket that blocked vehicle access to and from our client’s site (the Milton XXXX brewery), our client is concerned that similar conduct may occur again on 11 April 2018 (these matters are set out in further detail in our client’s application in matter B2018/223).
Accordingly, our client seeks from your client an undertaking to the following effect:
United Voice will not cause, organise, or encourage, and United Voice will take all reasonable steps to ensure that its officers, employees and members do not, cause, organise, or encourage, any obstruction to and from the XXXX brewery in Milton for any vehicle or persons on 11 April 2018.
…”

An appropriate undertaking was given on 9 April 2018 relevant to the industrial action planned for 11 April 2018.

When industrial action was notified to be taken on 18 April 2018 CPPL wrote to United Voice largely in the same terms as [39] above. An appropriate undertaking was given on 16 April 2018 relevant to the industrial action planned for 18 April 2018.

Relevant to the media statements made by United Voice throughout bargaining for the Proposed Agreement, it is Ms Wicks’ evidence that CPPL has repeatedly written to United Voice outlining its concerns as to what it says are misleading, false and unfair statements. CPPL does not consider that United Voice has responded appropriately to CPPL’s concerns, and United Voice refused to confirm it would immediately cease making, and not continue to make such statements to the media.

CPPL does not accept United Voice’s contention that its media commentary is not linked to bargaining. The relevant media commentary was made in the context of bargaining and often specifically referenced the bargaining or the industrial action organised in support of it. The relevant media commentary only started after bargaining commenced, and notably, shortly after the PABO was made.

Examples of media activities undertaken by United Voice for which CPPL considers to be misleading, false or unfair include the following (collectively ‘the Media Statements’):

(a)an article in The Sydney Morning Herald dated 10 July 2017 entitled “Union warns Brisbane’s famous XXXX brewery is set to close its doors”. This article quoted Damien Davie (identified in the article as “United Voice coordinator”) saying words to the effect that workers had received threats that the Brewery would close if CPPL was unable to negotiate a replacement of full time jobs with labour hire positions and that “the continued push to bring in labour-hire employees and casualise the workforce is the main reason cited by management when threatening workers with closing the plant”;
(b)a television interview of Damien Davie by 7 News on 10 July 2017. During this interview, Damien Davie said “we’ve had management threaten us with shutting down the brewery if they didn’t get greater labour flexibility”;an article in the Courier Mail dated 11 July 2017 entitled “Brew ha ha: they gotta be jokin’”. This article quoted Damien Davie saying “for some time now they’ve been telling us that if they don’t get some concession in the way labour’s structured there they’d be moving production elsewhere”;
(c)a radio interview of Damien Davie by Emma Griffiths of ABC Radio Brisbane on around 10 July 2017. During this interview, Damien Davie said “we’ve had management say if there weren’t changes to labour flexibility and changes to the way the brewery operates, it would end up going the way of the Swan Brewery in WA” and “they have a constant request to casualise the workforce and increase the use of labour hire and short term employment”. The Swan Brewery was a brewery operated by Lion in Western Australia which closed in around March 2013;
(d)a United Voice media release on 1 March 2018 entitled “XXXX workers take action to keep Qld jobs local”. Damien Davie is quoted as having said that XXXX was “trying to outsource jobs to interstate and overseas providers” and had “threatened to shut down our legendary Milton brewery if they don’t get their way on shipping in cheap labour from over the border”; a Nine News Queensland video report on 1 March 2018. A United Voice representative is quoted as having said “The workers are always working under the threat of the brewery being shut down or volume being moved down south”;
(e)an article in the Courier Mail dated 2 March 2018 entitled “XXXX staff threaten to strike over job security”. Damien Davie is quoted as having said “But XXXX management is threatening to shut down our legendary Milton brewery if they don’t get their way on shipping in cheap labour from over the border”;
(f)a flyer handed out by United Voice representatives during a protest by XXXX workers at the Broncos vs. Cowboys rugby league “derby” on 16 March 2018. The flyer states “XXXX management is threatening to shut down our legendary Milton brewery if they don’t get their way on shipping in cheap labour from over the border”;
(g)an article in the Courier Mail dated 20 March 2018 entitled “Beer strike brewing for games”. It is reported that “United Voice union members will walk off the job at the iconic Milton brewery just nine days out from the Commonwealth Games over concerns about conditions and production being moved south of the border” and “United Voice spokesman Damien Davie said rolling work stoppages would continue until ‘XXXX comes to the bargaining table. ‘It’s just not right – this is a legendary Queensland beer, which should be made exclusively here in Qld, by Queenslanders’, he said”;
(h)a post on United Voice Queensland’s Facebook page on 22 March 2018 including a link to the “XXXX Rally” event scheduled for 26 March 2018 at 11.00am. The post stated “XXXX has already started making beer in NSW and SA, and we don’t want any more to be moved down south. Get behind our Queensland XXXX workers to keep their jobs local and keep XXXX on home turf”;
(i)a post on United Voice Queensland’s Facebook page on 9 April 2018 stating that “XXXX say their roots are in Queensland… They’re racing over the border to send more work down south, and won’t commit to good jobs in Queensland. When will management start to give a XXXX about their workers here in Queensland?”;
(j)an article in the Courier Mail dated 10 April 2018 entitled “Union reveals XXXX email ‘threat’ ahead of strike at Milton brewery”. It is reported that industrial action is scheduled for 11 April 2018 and refers to an email to employees which said that the “long term viability of our brewery at XXXX is dependent on our ability to be flexible and responsive to changes at a level that we have not seen in the past’’. It is reported that Damien Davie said “While XXXX is saying publicly they won’t leave Queensland high and dry, they have sent an email to their workers that says staying the way they are is not an option” and “That sounds like a threat to me. How can we believe their claims that they won’t shut the brewery down?’’;
(k)a video on United Voice Queensland’s Facebook page on 11 April 2018 with caption “XXXX workers walk off for a second time to stand up for good jobs in Queensland”. The video shows what appears to be a group of Employees marching down Finchley Street towards the Brewery carrying a large banner reading ‘KEEP XXXX ON HOME TURF’;
(l)an article in the Gold Coast Bulletin dated 12 April 2018 entitled “Strike two at Brewery”. It is reported that “[t]he United Voice union, which represents the workers, claims brewer Lion is planning to create a cheaper workforce by employing contract staff at a lower pay rate through a third party. United Voice spokesman Damien Davie said they had been meeting with XXXX representatives at the Fair Work Commission, but had reached a sticking point over their move to employ more casual workers”;
(m)an article in the Courier Mail dated 17 April 2018 entitled “Workers at XXXX Brewery to Walk off Job for Third Time”. It is reported that “About 100 workers will stop work in three blocks tomorrow over issues relating to the use of contractors and disputed claims that the brewery owner, Lion, wants to shift production interstate.” The article states “United Voice spokesperson Damien Davie said XXXX continued with threats of closing the brewery, although Lion has consistently said the Milton brewery will be maintained and that it was investing capital at the site”…Then they tell us they won’t close the brewery and only want casual labour for peak periods, but email their staff saying the viability of the brewery is at stake. They’ve said in the media they will pay their casuals the same as the permanent staff. But they won’t pay them the loading they’re entitled to instead of sick leave and annual leave. We can’t believe anything they say, because they are constantly saying one thing in the media, and doing another behind closed doors. If they were serious about doing the right thing by their workers, they’d come to the table and lock in their jobs and conditions through their enterprise agreement”;

(n)an article in the Courier Mail dated 18 April 2018 entitled “Bosses insist they do give a XXXX about site’s future”. It is reported there will be a third wave of strikes “as workers claim tensions are escalating at the Milton site.” It is reported that “[a]bout 100 employees will stop work over issues relating to the use of contractors and disputed claims that the brewery owner, Lion, wants to shift production interstate.” It is reported that Damien Davie said that “XXXX continued with threats to close the brewery” but also that “Lion has consistently said the Milton brewery will be maintained and that it was investing capital at the site.” It is reported that Damien Davie said “[w]e don’t want XXXX to go the same way as the Swan Brewery in Perth, which closed five years ago under the same management we now have at Milton” and “[t]hey have already admitted to brewing XXXX in southern states, despite marketing our beer as ‘the pride of Queensland’.” It is reported that Irene Bell has responded to repeated claims that Lion was preparing to close the brewery by saying “[w]e are not moving any production away from the XXXX Brewery in Milton, nor have we ever referenced this; and
(o)a post on United Voice Queensland’s Facebook page on 18 April 2018 stating that “XXXX workers walked off for the third time today because their bosses continue to threaten them with closing the brewery and bringing in cheap labour…. We need to keep XXXX on home turf!”

Ms Wicks’ evidence is that United Voice has repeatedly stated to the media that CPPL has threatened to shut down the Brewery when this is not true; CPPL has never made such a threat to United Voice or to any Employee. On 10 July 2017 CPPL published on its website a media release confirming that these alleged “threats” to close the Brewery have never been made and are false.

CPPL further states that references to threats of jobs or production moving interstate, related to the use of labour hire are false and misleading. United Voice has been aware that CPPL has, for many years, manufactured XXXX beer in states other than Queensland as part of its supply chain. There are infrequent occasions when XXXX beer brewed interstate may be shipped from other locations to be sold in Queensland. This may occur because there is aged stock in other states, or there is a supply issue in Queensland (such as floods or other supply issues).

Ms Wicks is not aware of any plans CPPL has to change the current spread of XXXX production across different states.

In or around the time bargaining for the Proposed Agreement commenced, CPPL gave a PowerPoint presentation to employees at the Brewery. The PowerPoint presentation contained the following slide:

“…

COMPANY CRITICAL POSITION

The long term viability of our brewery at XXXX is dependent on our ability to be flexible and responsive to changes, at a level that we have not seen in the past
Staying the way we are is not an option for the long term

1.   Flexibility in work practices and labour resources
2.   Simplified agreement that is easy to work within
3.   Commercially viable with realistic wages and conditions”[3] (original emphasis)

Ms Wicks did not prepare the PowerPoint presentation above in [48]. She does not, however, believe that the statement, “The long term viability of our brewery at XXXX is dependent on our ability to be flexible and responsive to changes at a level that we have not seen in the past” is a threat or reference to jobs or production moving interstate or to the Brewery closing. Ms Wicks’ evidence is that the statement was intended to mean CPPL’s ability to continue to attract investment and volume and keep the Brewery operating at the current level of productivity depends upon CPPL’s ability to be flexible and adapt to changing market conditions. This may include, for example, if CPPL gets a short run of production for a particular customer, or if CPPL needs the ability to be able to do this with additional labour at a competitive rate in order to keep the Brewery operating at its optimal capacity.

CPPL is particularly upset United Voice continues to make assertions that CPPL wishes to increase its use of interstate labour hire at the expense of the current workforce, and states that United Voice’s assertions are false and misleading. Where United Voice has stated that CPPL wants to “ship in cheap labour from over the border”, and it won’t commit to local jobs for Queenslanders, these statements are not true. CPPL has positively stated to media outlets that these assertions are not true.

CPPL asserts that in bargaining United Voice has not made a claim about keeping jobs and production local, but the media statements by United Voice, repeatedly stating that the industrial action is about “production being moved south of the border”, “keeping jobs local”, and plans to “shift production interstate” indicate this is a reason for the industrial action United Voice organised.

CPPL has repeatedly written to United Voice explaining that the statements made by United Voice are considered by CPPL to be false and misleading. CPPL has also done so during bargaining meetings.

On 12 April 2018 United Voice sent a letter to CPPL asking it to respond to the following questions:

(a) Do you intend to replace the permanent workforce with cheaper third party labour?

(b) Do you regard the continuing operation of the Milton Brewery as commercially viable?

On 13 April 2018 CPPL responded as follows and then sought undertakings from United Voice:

“Dear Gary (sic)
XXXX bargaining – Intention regarding the Milton Site
We refer to your letter of 12 April 2018, in which you requested that we respond to the
following questions:

·   Do you intend to replace the permanent workforce with cheaper third party labour?
·   Do you regard the continuing operation of the Milton Brewery as commercially
·   viable?

We respond to these questions as follows.
Do you intend to replace the permanent workforce with cheaper third party labour?
No.

The Company has never said that it intends to replace the permanent workforce with cheaper third party labour. The Company has repeatedly reassured United Voice that this statement is not true, including in its letters of 7 March, 13 March and 26 March 2018. Further, the Company has made statements to a number of media outlets confirming that this statement is not correct (e.g. in the 2 March 2018 Courier Mail article and in the Nine News video report on 15 March 2018).

Despite these assurances, United Voice continues to make statements to the media to the effect that the Company intends to replace the permanent workforce with cheaper third party labour. We trust that in light of this most recent reassurance, no such statements will continue to be made.

Do you regard the continuing operation of the Milton Brewery as commercially viable?
Yes.

As communicated to you on a number of occasions, including in our letters of 7 March, 13 March and 26 March 2018, the Company has no plans to close the Milton Brewery and has never said that it intends to close the Milton Brewery. Despite this, United Voice continues to make statements to the media to the effect that the Company is threatening to close the Brewery. We trust that in light of this most recent reassurance, no such statements will continue to be made.

United Voice has made recent comments to the media (including in the 10 April 2018 Courier Mail article) that refer to an email the Company sent to employees which included words to the effect that “long term viability of our brewery at XXXX is dependent on our ability to be flexible and responsive to changes at a level that we have not seen in the past’’. This statement was not a threat or reference to jobs/production moving interstate, to the ongoing commercial viability of the Milton Brewery or to the Brewery closing. Rather, this statement means that the Company is operating in a very competitive market and must continuously look for ways to improve the quality of our products and to produce them more efficiently and at lower cost to the customer (whilst maintaining a safe operation). Our competitors are all working to these objectives, so we must too, or risk being left behind.

…”

On 17 April 2018 United Voice sent the following response:

“Dear Colleagues
Re: United Voice ats Castlemaine Perkins Pty Ltd (B2018/223)
We refer to the above proceeding.
We are instructed that on 13 April 2018 your client sent two letters to our client. The first had the subject ‘XXXX bargaining - intentions regarding the Milton Site’ (the First Letter). The second had the subject ‘CASTLEMAINE PERKINS BARGAINING - UNITED VOICE’S PROPOSED ‘JOB SECURITY AND THIRD PARTY LABOUR’ CLAUSE’ (the Second Letter).
As to the Second Letter, we are instructed that our client will respond directly to your client in due course, except to the extent that it concerns the above proceeding.
As to The First Letter, and the Second Letter insofar as it concerns the above proceeding, our client notes that your client is again seeking to communicate directly with our client about the above proceeding. Like your client our client has appointed external legal representatives. Our client intends to deal with the above proceeding only through its appointed external legal representatives. Our client will not participate in negotiations or other discussions directly with your client concerning the above proceeding. We trust that you will appropriately communicate that position to your client.
Our client provided a preliminary response to the First Letter on 13 April 2018. Having now had a proper opportunity to obtain legal advice and consider its position, our client has instructed us to provide the following response to the First Letter.
1. The contents of the First Letter are noted but not agreed. In particular our client denies that it has engaged in any misrepresentation and relies upon its prior correspondence to your client, in particular its letter dated 29 March 2018, in that regard.
2. The undertakings that your client has invited our client to agree to are, in effect, the final relief that is claimed by your client in the above proceeding. You are aware that the claim for final relief is opposed. For reasons including those previously articulated our client will not provide those undertakings.
We trust that the above is responsive to the First Letter and the Second Letter insofar as it concerns the above proceeding.

…”

Relevant to the rally outside the Brewery on 26 March 2018, United Voice has not provided assurances that United Voice and its members, officials, employees and agents will not engage in similar picketing in the future, except for the specific undertakings given relevant to 11 and 18 April 2018.

Ms Wicks’ evidence is that CPPL does not agree with United Voice’s assertion that the demonstration on 26 March 2018 was a ‘community protest”. Further, CPPL does not agree with United Voice’s contention that the picket would fall outside the purview of the Act’s good faith bargaining provisions. United Voice encouraged Facebook users visiting its page to attend the “XXXX Rally”, saying “Around 100 XXXX brewery workers will take industrial action this Monday (March 26). Support XXXX workers in their fight against job insecurity and threats of losing conditions…”. In addition, during the rally participants chanted, among other things, “Liar, liar, pants on fire, why do you want labour hire?”.

In cross-examination, Ms Wicks agreed that the third party organisation used by CPPL for the supply of additional labour is Programmed Skilled.

Ms Wicks detailed what she understood some part of the PowerPoint presentation to mean. The following exchange occurred:

“Hunt C: Well, the next sentence, in the PowerPoint presentation is: “Staying the way we are is not an option for the long-term.” What does that mean?

Ms Wicks: So it means that we need to be able to adapt at a quicker rate than we have been able to do in the past and to be able to flex up more responsively than we have been able to do in the past.

Hunt C: Half of that sentence is in red, so it’s attached to Mr Davie’s statement. So why is half the statement in red?

Ms Wicks:       I couldn’t say why it’s changing colour. I didn’t produce the slide.
Hunt C:           You didn’t prepare it?
Ms Wicks:       No. I reviewed it - - -
Hunt C:           Because the contention is, Ms Wicks, that this is a threat?
Ms Wicks:       I understand that that’s the contention, yes. It’s not a threat.
Hunt C:           Well, what do you - it’s not a threat?
Ms Wicks:       No.
Hunt C:          So what does “not an option” mean?
Ms Wicks: So what it means is that this statement, I believe, was trying to demonstrate that we need to be able to change and adapt quickly and more responsively that we have in the past and that the way things have operated in the past needs to be challenged and flexed up going forward, across a range of things, not just third party labour.

Hunt C: If that can’t be achieved?
Ms Wicks: Well, we just keep, I suppose, engaging different ways of being able to become efficient with our business. I haven’t really turned my mind to what that might be.” [4]

Evidence of Peter Shepherd

Mr Peter Shepherd is the Managing Director of HATAMOTO, a management consultancy company that provides security risk management and business resilience services. HATAMOTO is engaged by Lion on behalf of CPPL, in the capacity of licenced security advisers to provide security risk management services at the Brewery.

Before the protest on 26 March 2018, Rob Flynn (Operations Manager at the Brewery) sent Mr Shepherd photographs of United Voice organisers and delegates to assist in identifying United Voice Queensland organisers and delegates who might be present at the protest. Mr Shepherd wore a GoPro camera at all times while observing the protest, which he used to take photographs of the events outside of the gates of the Brewery.

At about 10.25am on 26 March 2018, Mr Shepherd noticed that a white ute was parked directly in front of the Brewery’s gatehouse, albeit not blocking vehicular access to (or egress from) the Brewery. The white ute was parked in front of a “no standing” sign. Mr Shepherd observed two men unloading speakers and others items from the back of the ute. Mr Shepherd identified one of the men as being Glen Conroy, an Organiser for United Voice.

Mr Shepherd was told by John Way, a member of the onsite XXXX security team that he had asked the men to move the ute, as it was in a “no standing” area and was impeding traffic flow from Finchley Street. Mr Way told Mr Shepherd that the two men refused to move the vehicle.

By this stage Mr Shepherd observed that a crowd of approximately 30 to 40 protestors had started gathering on the road at the gatehouse entrance. The protestors were wearing a variety of union-branded shirts. On their shirts were logos or branding for United Voice, CFMEU, ETU and MUA.

Mr Shepherd saw signs held up by the group of protestors displaying slogans including:

(a) “Honk if you give a XXXX about workers”;
(b) “Keep XXXX ours”; and
(c) “Give a XXXX about our workers”.

Mr Shepherd recognised Mr Davie and Mr Bullock amongst the protestors and saw that they were wearing United Voice shirts. Mr Shepherd also recognised various United Voice delegates.

At about 10.35am Mr Shepherd exited the gatehouse and spoke loudly to the group of protestors generally, asking them to move off the road for their own safety. He observed that the protestors took no notice of him and did not move off the road. Mr Shepherd then had the following conversation with Mr Conroy:

“Mr Shepherd: Your vehicle is illegally parked and you need to move it. Vehicles require
access through this gate and your vehicle and these people will impede this access.

Mr Conroy: Council has approved us being here – do you want to wait for a council
representative to arrive?

Mr Shepherd: If you do not move your vehicle, we will have to call the police.”

Mr Shepherd stated that Mr Conroy shrugged and did not respond. Mr Shepherd removed himself from the area to make several phone calls.

At about 10:30am Mr Shepherd observed three white “pantec” trucks drive down Finchley Street and then up Paten Street, slowing down as they passed the gatehouse, with the drivers honking their vehicle horns. Each of the trucks had advertising on the side of the truck, displaying the words:
(a) “Keep XXXX on home turf”; and
(b) “Give a XXXX about our workers”.

Mr Shepherd’s evidence is that at about 10.41am a delivery truck arrived at the gatehouse entrance. The truck could not enter the Brewery as the group of protesters (including protestors wearing United Voice shirts and waving United Voice flags) was on the road blocking the entrance at the gatehouse by congregating on the road in front of the gatehouse. Mr Shepherd did not speak to the truck driver. Mr Shepherd was advised by Mr Adam Howard, HATAMOTO, that he had spoken to the driver of the truck and the truck driver said he was there to make a delivery at the Brewery.

Mr Shepherd observed that the group of protestors took no notice of the delivery truck and did not move away from the entrance.

Mr Shepherd contacted the Roma Street Police Local Area Command and Police Assistance Line and advised them that protestors and a vehicle were impeding access to the Brewery. The police advised that a patrol car would attend the Brewery site.

At approximately 10.48am Mr Shepherd and other members of the HATAMOTO security team once again asked protestors to move off the road for their safety and to allow access for incoming delivery trucks. The protestors did not move off the road.

Mr Shepherd heard the crowd of protestors chanting words to the effect of:

(a) “The workers, united, will never be defeated”;
(b) “Our beer, keep it here”; and
(c) “Liar, liar pants on fire, why do you want labour hire?”

At approximately 11.00am the police arrived. By this time Mr Shepherd observed that there were approximately 80 to 100 protestors gathered on the road at the gatehouse entrance. The protestors had completely blocked the entry and exit to the Brewery off Black Street by congregating on the road.

Mr Shepherd saw Mr Conroy standing on the back of the ute addressing the crowd of protestors. The protestors were chanting loudly in response.

Mr Shepherd observed the police move their van to the bottom end of Finchley Street. A police officer told him this was to prevent traffic from passing, due to the volume of protestors on the road and the risk to their safety. Mr Shepherd also noticed this had stopped the three pantec trucks from doing any more laps around the Brewery. Shortly thereafter a second police van arrived at the Brewery. The police started redirecting traffic at the intersection of Paten and Black Streets. At this stage, Mr Shepherd did not see the police provide any traffic management assistance in enabling vehicles to go in and out of the Brewery.

Not long after the police had arrived, Mr Shepherd went and spoke to Mr Davie. Mr Shepherd said to him words to the effect of, “You and these protesters are impeding access, restricting our trade and preventing the trucks lined up from getting into the Brewery. Management are very concerned about this and would like to have something done about this.” Mr Shepherd’s evidence is Mr Davie did not respond but asked to have a private conversation with the police.

By about 11.20am Mr Shepherd observed at least three delivery trucks queued up waiting to get into the Brewery. Mr Shepherd could not recall exactly how many delivery trucks were obstructed from entering the Brewery, because after the first two delivery trucks arrived his attention was turned to asking the protestors to move off the road and speaking with the police. Mr Shepherd believed there were at least three delivery trucks queued up waiting to enter the Brewery.

Additionally, Mr Shepherd observed that the group of protesters (including those wearing United Voice shirts and holding United Voice flags) also blocked at least three delivery trucks from exiting the Brewery after having earlier completed their delivery. These trucks were also queued up inside the Brewery waiting to exit. Mr Shepherd observed that the group of protestors took no notice of these delivery trucks and did not move off the road away from the entrance.

At approximately 11.30am Mr Shepherd observed the police instruct the protest organisers, including Messrs. Conroy, Davie and Bullock, to move the crowd of protestors off the road. At this time Mr Shepherd observed Messrs. Conroy, Davie and Bullock instructing the protesters to clear the road, which enabled the trucks that were unable to exit the Brewery to leave the Brewery. Mr Shepherd’s evidence is that Mr Howard told him that Mr Bullock stated words to the effect of “Righto guys, now we can move”. At this point, some of the protestors started to walk away from the gatehouse entrance.

At approximately 11.40am Mr Shepherd saw the rest of the protestors start to pack up and move to Milton Road to continue the protest, which involved chanting and waving signs at the passing road traffic. This allowed the trucks that were queued outside the Brewery to enter the Brewery and make their delivery.

Mr Shepherd observed that the delivery trucks had remained queued up outside the Brewery until the protestors had moved on. The first delivery truck that had arrived during the protest had waited for about an hour outside the gatehouse entrance before it entered the Brewery.

At approximately 11.55am Mr Shepherd observed the white ute parked in front of the Gatehouse entrance, depart the area.

Evidence of Adam Howard

Mr Howard was present during the rally at the Brewery on 26 March 2018. He spoke with several truck drivers while the entrance and exit to the Brewery was blocked by protestors. He described the drivers as being somewhat annoyed at the demonstration, as it affected their ability to perform their roles, but they were nevertheless compliant.

Mr Howard approached Mr Bullock and said, “Do you mind yourself and the guys getting off the road, please”, to which Mr Bullock firmly answered, “No.”

Evidence of Damien Davie

Mr Davie is a Coordinator for United Voice. He has been employed by United Voice since 2003 and prior to that was a United Voice delegate at Arnott’s Biscuits.

Mr Davie has attended about 5-6 meetings over 2017 and 2018 for the purpose of bargaining for a replacement agreement to the Agreement which currently applies to the workers at the Brewery. Mr Davie is the senior officer of United Voice with responsibility for the Brewery and in that capacity has been keeping a close eye on the progress of the bargaining and the associated disputes. Bargaining on behalf of United Voice members has been undertaken by United Voice delegates employed at the Brewery, together with Mr Conroy and Mr Greg Davey.

In 2014 Mr Davie was involved on behalf of United Voice in bargaining with CPPL for the 2014 agreement. The bargaining for that agreement started in about July 2014. Mr Davie recalled attending a bargaining meeting in October 2014, where Ms Irene Bell, Brewery Manager, said to him words to the effect of:

“I don’t want to do what I did to Swan in Western Australia, to XXXX here. I don’t want to go through shutting down another brewery.”

In about 2012 Ms Bell was part of the management team responsible for the closure of the Swan Brewery in Western Australia and the movement of production to South Australia. Mr Davie believes that this occurred because Ms Bell, along with the other managers, considered it was it was a more cost-effective way to operate. As a result, beer brewed in South Australia is now shipped back to Western Australia.

Mr Davie’s evidence is that he interpreted the comments as a threat by Ms Bell that she would consider closing the Brewery if they were not able to reach an agreement that was satisfactory to the employer.

During the course of bargaining in 2014, Mr Davie raised concerns expressed by United Voice members regarding job security at the Brewery. As an example, Mr Davie said on at least 2-3 occasions during the course of bargaining meetings words to the effect of:

“We want to ensure our members have the highest possible job security out of these negotiations.”

In response to the expressions of concern regarding job security in bargaining meetings, Ms Bell said to Mr Davie words to the effect of:

“Well you only need to look at the decrease in production and the way volume is dropping. If we don’t get change, it’s unsustainable.”

In response to this comment, Mr Davie said to Ms Bell words to the effect of:

“That’s not the fault of the workers.”

Mr Davie’s evidence is that he interpreted this as a threat to close the Brewery if United Voice did not make concessions on the issue of job security. Mr Davie believed Ms Bell’s comments to be a threat because he knew of Ms Bell’s involvement in the closure of the Swan Brewery. Further, Mr Davie believed Ms Bell’s comments to be a threat because she linked the issue of job security and production, and he considers that consolidation and decreases in production represents a threat to United Voice members’ job security. Mr Davie stated that in his experience, consolidation is a gradual process that involves winding down the production levels in one location while increasing reliance on operations in a central location. Gradual decreases in volume and production are indictors of consolidation.

Mr Davie stated he has, for a long time, held concerns that the job security provisions which United Voice negotiated to be included in the Agreement were being undermined by CPPL’s emphasis on the need for ‘flexibility’ and its reluctance to engage in consultation with United Voice.

As a result of conduct by CPPL in 2016 (referred to below in paragraphs 99 – 101 below), Mr Davie also holds specific concerns about CPPL’s commitment to the pay parity clause in the Agreement which requires labour hire employees engaged by CPPL to be paid the same amount as direct employees.

Mr Davie is currently concerned that CPPL intends to close the Brewery or alternatively decrease its production. Both of those things are a direct threat to the job security of United Voice members. Mr Davie holds these concerns as a result of his discussions with delegates and members, and due to the actions taken by management including Ms Bell’s prior comments.

Pay Parity

Following the 2014 Agreement coming into force, labour hire workers were paid at the same rate as casual employees under the 2014 Agreement.

Mr Davie’s evidence is that on 23 June 2016 CPPL sent a letter to United Voice which purportedly advised that it would no longer be paying the 25% casual loading to labour hire workers. In cross examination Mr Davie conceded that the effect of the letter was ambiguous.[5] The letter states:

“Dear Gary (sic)

Castlemaine Perkins Brewery Engagement of Indirect Labour
During the consultation process for changes at our Castlemaine Perkins Brewery, we have spoken about the use of indirect labour under the terms of the Castlemaine Perkins Pty Limited Collective Agreement 2014-2017 (the Agreement).
This letter confirms the discussions held about the engagement and payment of indirect labour during the consultation period and the guidelines for engagement. As a business we will continue to review the effectiveness of our approach to the engagement of indirect labour and will consult with you regarding any adjustments that may be required under our consultation obligations.
Appendix E, Clause 2 of the Agreement, sets out the terms under which indirect
labour can be engaged.
Type of work contemplated –
We envisage that our use of indirect labour will be for coverage of a short term nature and cover the following circumstances

·   Sick leave greater than 3 shifts,
·   Holiday leave,
·   Training
·   Projects
·   Extra Volume
·   Major breakdowns
·   Best Practice Groups and
·   Taskforce meetings (MEX)
Indirect labour will not be used for short term sick leave cover (less than 3 shifts/3 days), unless there are no permanent team members available to perform overtime.
It is the intention to utilise indirect labour across the following roles –

·   Forklift Driving
·   Palletiser operation
·   Depalletiser Operation
·   Stream 1 Packer

Number of indirect labour employees to be engaged -
The number of indirect labour workers will vary depending on the reason for which coverage is required.
Length of engagement –
The length of engagement for indirect labour workers will vary depending on the reason for which coverage is required.
Appropriate rates –
The nature of engagement of indirect labour aligns to Contract of Employment clause 19.3 in the Agreement. This provides for a casual loading of 25%. As the Agreement is silent on the application of the 25% casual loading, the Food, Beverage and Tobacco Manufacturing Award will determine that the 25% casual loading will provide an all-purpose rate.
The applicable rates are set out in Clause 25- Wages Rates and Increases. The appropriate classification will initially be Level 2. Where an indirect labour worker has the recognised skills to move into a higher classification level, the rates of the relevant classification will be used.

All allowances, shift penalties and overtime incurred will be paid in accordance with the appropriate terms set out in the Agreement. Where allowances are expressed as an annualised amount in the agreement, for the purposes of casual engagements these allowances will be converted to an equivalent hourly amount based on annual ordinary hours recognised as 1,820 hours per annum (35 hours x 52 weeks).

For clarity allowances will not form part of the all-purpose casual rate.

Use of Temporary Employees –

The use of temporary employees under the Agreement at Clause 20 - Temporary Employment has been common practice at Castlemaine Perkins Brewery. Temporary employment will continue as is currently the practice over peak periods and to cover long terms absences of our existing permanent workforce. These employees may also be used to cover other types of work as detailed above under ‘type of work contemplated’ if business requirements are able to be met.

…”

Mr Davie’s evidence is that the position articulated by CPPL in its letter of 23 June 2016 is consistent with the position they have adopted during the current round of bargaining and undermines the effectiveness of the pay parity clause. Mr Davie also considers that it may also amount to a breach of the Agreement.

PowerPoint/Flyer

At about the time that bargaining for the replacement agreement commenced, CPPL gave a PowerPoint presentation to employees of the Brewery where it set out its bargaining position. In the PowerPoint presentation CPPL emphasised the need for ‘flexibility’. The PowerPoint also identified that the volume of XXXX produced at the Tooheys brewery in NSW is higher than the amount produced at the Brewery and that this gap is widening.

Mr Davie’s evidence was that in the course of bargaining for the Proposed Agreement, in about October 2017, CPPL distributed a seven page flyer to the employees at the Brewery (Flyer). Page three of the Flyer purportedly included words, or words to a similar effect to that of the PowerPoint presentation at [48]. CPPL denied that a seven page Flyer was produced and neither party was able to provide the Commission with a copy of the Flyer.[6]

During the bargaining meeting that Mr Davie attended, CPPL has not identified the specific “changes” that the Brewery is facing.

On about 3 April 2018 CPPL sent an email to employees that included the extract of the PowerPoint presentation at [48] and described the actions taken by United Voice on 26 March 2018 as “unlawful”. It also advised employees that CPPL “has applied to the FWC to issue a good faith bargaining order” to “focus [United Voice] on returning to constructive negotiations.” The email is set out below:

“On Monday 26 March, United Voice members stopped work & left the site from 11am to 12pm. A rally was organised by United Voice organisers at the entrance of the Castlemaine Perkins Brewery & attended by other supporters. Media were also present.
The company is very concerned with some of the actions that were taken on this day eg. restricting access to/from the site, by United Voice organisers & other supporters. In our view, we believe these were unlawful actions as provided for under the Fair Work Act’s ‘good faith bargaining’ framework.
The company recognises your right to take protected Industrial Action - this is only if it is performed in a manner that complies with the Fair Work Act’s guidelines. In order to address the concerns we hold regarding actions taken on 26 March, and the ongoing & misleading statements made by United Voice to the media, the company has applied to the FWC to issue a good faith bargaining order. The outcome of this order (if it is issued) will be to ensure that United Voice do not engage in any similar behaviours moving forward & focus them on returning to constructive negotiations.
There was a negotiation meeting scheduled for 4 April, however this was been cancelled to focus on operational matters. Further meetings are still to be scheduled.
Commissioner Hunt from the Fair Work Commission has offered numerous times to meet & assist the parties. United Voice have repeatedly advised they do not wish to participate in these meeting.
Lion, United Voice and CEPU representatives are due to report back to Commissioner Hunt on 23 April on updates/ progress since our initial meeting at the FWC on 16 February.
Our focus remains on working with United Voice/CEPU to negotiate a new Enterprise Agreement which helps set us all up for the flexible and agile site that we need to be into the future.”

Meetings with delegates

Over the course of the current bargaining Mr Davie has attended about 12 meetings with United Voice delegates who work at the Brewery. Mr Davie stated that concerns regarding job security have been raised by delegates at about 50% of the meetings that he has attended regarding the Proposed Agreement.

Delegates have reported to Mr Davie that the Brewery is operating at about 50% capacity. During a meeting with delegates on 18 January 2018 Mr Davie asked the delegates if the figures of production and production at other CPPL breweries could be obtained. Mr Davie said that Mr Justin Lane, delegate, responded with words to the effect of:

“We can’t get a hold of these figures any more. They used to make them available, but they don’t now. I can tell you though that we are only operating at 50% capacity.”

Mr Davie said Mr Steve Romans, delegate, then said words to the effect of:

“We only bottled beer on three out of the five days we worked last week. It was quiet in the lead up to Christmas and it was a quiet summer.”

Mr Davie holds concerns that CPPL is withholding information from delegates regarding the current operating capacity of the Brewery.

Mr Davie considers that if the Brewery was operating at capacity it would be operating 24 hours a day, seven days per week. If the Brewery is only operating five days per week, it is not operating at capacity. If the Brewery is only bottling beer on three days per week, it is not operating at capacity. Mr Davie’s evidence is that summer, and in particular the weeks before Christmas are the peak periods for the Brewery. In the past, the Brewery has operated at capacity over this period.

Mr Davie is not aware of any explanation for this decrease in production at the Brewery and it can be contrasted with other breweries around the country that are operating at capacity. For example, the Tooheys brewery in Lidcombe, New South Wales, was running at capacity in the weeks before Christmas.

Mr Davie is aware that there has been a series of redundancies at the Brewery that have resulted in the loss of 40 positions over the past three years, including:

(a)in May 2015, approximately nine positions made redundant - two of the employees were redeployed, while seven employees were terminated due to redundancy;in 2015, a further two positions were not filled when the employees performing the roles departed;
(b)in March 2016, 27 positions in packaging and trades were made redundant; and
(c)in December 2016, a further two positions in brewing were made redundant.

In relation to comments made by CPPL to the media that it was hiring five new employees, Mr Davie’s evidence is that these new employees are not being employed to fill newly-created roles.

Mr Davie stated that delegates had also reported that Ms Bell has engaged in ‘dog whistling’ at the Brewery including by making comments to the effect that staffing levels at the Brewery are unsustainable and that the Brewery is not viable. Mr Davie regarded the email of 3 April 2018 set out at [105] as an example of “dog whistling”.

On 6 March 2018 Mr Davie attended a bargaining meeting with delegates and representatives from CPPL. During the course of the meeting the parties discussed the use of labour hire employees and the obligation on the employer to consult with employees and their representatives regarding the use of labour hire employees. In the context of this discussion, Ms Bell said words to the effect of:
“It’s a tough beer market, we can’t continue on like this. We just want what the other breweries have and what other manufacturers have.”

Mr Davie said he interpreted Ms Bell’s comments as a statement of CPPL’s position that if it cannot access cheap casual labour, then ultimately the Brewery will shut down. In response to Ms Bell’s comments, Mr Davie said words to the effect of:

‘We want good secure jobs for our members and for future Queenslanders who may come to work here.’

Call for public’s support

Mr Davie stated that United Voice has previously attempted to highlight its members’ concerns regarding job security, including by publishing these concerns through various media outlets. For example, in early July 2017 United Voice put out a media release regarding job security concerns that was featured in news reports on and on 97.3FM.

Mr Davie’s view is that there was a need for public action in relation to what he perceived to be CPPL’s attempts to undermine job security because of the high regard in which XXXX as a brand is held by the Queensland community.

Mr Davie considers XXXX represents values such as teamwork and mateship, evidenced by CPPL’s support of the Australian Commonwealth Games Team. Further, CPPL relies on its ties to Queensland as part of its corporate identity, as evidenced by its long standing supports of the Queensland Maroons State of Origin team.

Mr Davie believes that Queenslanders expect that CPPL would treat the Queenslanders that work for it fairly and do everything it can to maintain the strong links between XXXX and the Queensland community.

In circumstances where CPPL was not doing everything it could to maintain the relationship with the Queensland community, including by maintaining the relationship with its workers, Mr Davie thought, and United Voice thought, that the community had an interest in knowing about it and being given the opportunity to become involved in a public campaign to secure as far as possible the production at the Brewery of as much XXXX as possible, thereby assisting in the maintenance of job security.

Bargaining meeting of 20 March 2018

During a bargaining meeting at the Brewery on 20 March 2018 there was a discussion regarding the supplementary labour clause. Ms Wicks said words to the effect of:

“The clause you are pushing for restricts our ability to use labour hire and, therefore, it is not allowable”.

Mr Davie responded stating:
“In no way, shape or form do we intend to bargain for non-allowable content. We are purely trying to protect members’ job security”.

The bargaining representatives went on to discuss the rates of pay that labour hire employees would be entitled to. Mr Davie expressed his view that labour hire employees should be paid the same rates as Employees under the Proposed Agreement. Mr Davie stated Ms Wick’s response was that CPPL would agree to pay labour hire employees at the permanent rate. Mr Davie’s evidence is that CPPL’s proposal to engage labour hire at a rate 25% less represents a threat to United Voice members’ job security.

[38] Misrepresentation to the extent set out above was not proper. The misrepresentation was false or materially incorrect. The misrepresentation, in my view, destabilised and impaired the trust and confidence necessary in negotiations to achieve replacement agreements.
[39] Having been satisfied that the instances of misrepresentation by the MUA were a breach of the good faith bargaining requirements in s.228 of the FW Act, it is necessary to consider the provisions of s.230 of the FW Act.
[40] I am satisfied that the application has been properly made (s.230(1)(a)). I am satisfied that the requirements in s.230 have been met (s.230(1)(b)). Consequently, it is necessary to consider whether it is reasonable in all the circumstances to make a bargaining order as sought by AMMA (s.230(1)(c)).”[63] [Endnotes omitted]

Consideration

Collective bargaining

On the issue of collective bargaining, I am not aligned to the submission of United Voice where it is put that s.228(1)(e), where it references collective bargaining, only refers to employees collective bargaining because they are the collective.

All of the requirements to be met at s.228(1) are obligations on all bargaining representatives; there are not some that apply only to employer bargaining representatives, and some only to employee bargaining representatives.

Collective bargaining is a broader term than just for the benefit of employees. CPPL is correct in that collective bargaining is reached when the parties bargain; employees don’t bargain between themselves. The collective bargain is between a group of employees and their employer.

Bargaining representatives of employees are bound by the good faith bargaining requirements in s.228(1), as are bargaining representatives of an employer. A bargaining representative of employees is refrained from capricious or unfair conduct that undermines collective bargaining.

I accept the submissions at [157] as to the meanings of “unfair” and “undermine” relevant to s.228(1)(e) of the Act.

Obstructive Picket on 26 March 2018

Having viewed photographs and videos of the conduct of United Voice and Employees on 26 March 2018 outside of the Brewery gates, together with the evidence of witnesses at the hearing, I am satisfied that United Voice as a bargaining representative engaged in capricious or unfair conduct that undermines collective bargaining. The obstructive picket prevented entry by trucks to the Brewery by the positioning of people in front of the Brewery gates. Trucks were also prevented from safely exiting the Brewery due to the obstacle of a large number of people in front of the gates who refused, for the duration of the obstructive picket, to move off of the road.

Despite United Voice’s correspondence to CPPL at [142] where it contended that it was a “community protest”, the obstructive picket was organised and deliberate. A Labor Member of Parliament was invited to address the protestors and did so, and Mr Davie’s ute was used as a platform. During the obstructive picket no attempt was made by United Voice representatives to encourage protestors to move off the road.

Mr Davie’s evidence to the Commission on 18 May 2018 was that to his knowledge, no further obstructive rallies in front of the Brewery were planned. United Voice was not, however, prepared to provide to CPPL an enduring undertaking that obstructive rallies would not occur during the bargaining. Mr Davie gave the following evidence in cross-examination:

“Mr Follett: If that’s the position, why won’t United Voice provide the undertakings that the company sought?

Mr Davie: Like on the previous rallies, we can’t give 100 per cent guarantee every time that we would have enough marshals, et cetera, there to ensure that community participants didn’t engage in that. Generally, we will have enough people there. There may be some emerging circumstances that prohibit us from giving that undertaking on a permanent basis.

Mr Follett: Those emerging circumstances being when the company needs a bit of persuasion in the bargaining to alter its position, correct? ‑No.

Mr Follett: I asked you yesterday about the four questions in the 13 April letter as to why the union hadn’t provided the clarifications that were sought. You said you didn’t know and then I asked you yesterday the answers to those clarifications and you gave them? ‑Mm-mm.

Mr Follett: Equally, if there was no intention to organise an obstructive picket or rally at the site in future, it would have been very easy for the union to give that, that’s correct, isn’t it? ‑No.

Hunt C:So what might be emerging circumstances?
Mr Davie: It’s hard to say. If we have an influx of community people that we’re not expecting and the marshal situation on the day doesn’t match up, you know, there may be other groups that partake that we’re not in control of and haven’t had the time to ensure that that’s not going to happen. When we’re given it on a case by case basis, we get time to go through a process of briefing everyone, making sure it doesn’t happen.”[64]

Mr Davie’s evidence on this issue suggests that United Voice, in providing marshals to a “community rally”, would seek to ensure, to the best of its ability, that the Brewery would not be blocked. It is Mr Davie’s contention that other participants might not be able to be controlled in such a fashion. Having reviewed the video evidence, there is not one occasion where Mr Davie or other United Voice representative can be seen on the footpath encouraging other participants in the protest to move themselves from the road to allow trucks to enter and exit the Brewery. In viewing the footage, Mr Davie and other United Voice representatives placed themselves on the road, circulating among participants. Loud hailers were used to encourage repeated chanting. I infer that Mr Davie knew it was his ute that speakers to the rally were standing on. Mr Davie’s evidence before this Commission was risible on the issues of the obstructive rally.

At the conclusion of the hearing on 18 May 2018, CPPL did not seek an interim order.

Obstructive Picket on 30 May 2018

Just 10 days later, and after the decision was reserved in this application, on 28 May 2018 United Voice advertised on its Facebook page a “XXXX Rally with Sally McManus” to take place on 30 May 2018 from 10.30am – 11.30am. It is not surprising that United Voice did not provide to CPPL an enduring undertaking.

On 30 May 2018 approximately 100 protestors again gathered out the front of the Brewery gates. A number of truck drivers attempting to enter the Brewery in their delivery trucks were encouraged to move on by rally participants, including officials of the ETU, acting as “marshals” on the roadway, directing traffic. Trucks seeking to exit the Brewery were prevented from doing so by the fact that there were many people on the road in front of the Brewery. It would have been unsafe for the truck drivers to seek to enter or exit the Brewery.
As detailed above, the interim order application was heard before me on 8 June 2018. Filed witness statements were admitted into evidence, however the witnesses were not required for cross-examination. Video footage was admitted into evidence.

Relevant to the conduct of United Voice representatives on 30 May 2018, including Mr Davie, the video footage demonstrates that from approximately 10.30am until 11.30am, representatives of United Voice and other rally participants stood in the vicinity of the Brewery gates to prevent trucks from entering and exiting the Brewery. At approximately 11.20am Mr Davie was approached by a security officer and asked if he would encourage participants to move off the road. He turned his back on the security officer and ignored him. No attempts were made by United Voice officials to move participants from the immediate vicinity of the Brewery to allow for entry and egress. Mr Davie encouraged participants to stand in front of the entry gate to convene a media conference.

Interim Order made

Towards the conclusion of the hearing on 8 June 2018 I informed the parties that I did intend to issue an interim order. The order was issued that afternoon, requiring certain compliance by United Voice to inform members, Employees and others of the interim orders.

I issued the interim order as I was satisfied that it was reasonable in all the circumstances to do so. It appeared to me that United Voice was not prepared to await a determination of the substantive application before it took further and repeated obstructive action.

Despite the further action taken on 30 May 2018, following the hearing on 17 and 18 May 2018 I had determined that I would make a final order in the terms sought by CPPL relevant to the obstructive conduct. That is, I was prepared to make an order identical to item 1 of the draft order. I was satisfied at the first hearing that the conduct of United Voice representatives constituted capricious or unfair conduct that undermines collective bargaining, and I considered it reasonable in all the circumstances to make the order. I had not, however, prepared the written decision to do so, and in the absence of a request for an interim order, I did not consider it appropriate to issue an order at the time without an accompanying decision. This is particularly so when the order sought by CPPL included item 2, that being the media statements issue.

I consider that the bargaining representative, United Voice did not meet its good faith bargaining requirements to refrain from capricious or unfair conduct that undermines collective bargaining when it organised the obstructive rally on 26 March 2018, and then again on 30 May 2018. I agree with the submission put by CPPL that the conduct of engaging in and encouraging others to engage in the obstructive rallies is unfair conduct, intended to put inordinate pressure on CPPL to meet some demands of United Voice in the bargaining for the Proposed Agreement.

I do not accept for an instant the submissions put by United Voice at [183] that the rally and picket, which United Voice refuses to accept as an obstructive rally, was not undertaken by United Voice as a bargaining representative in the course of bargaining. There could not be a greater link. It’s not, as United Voice puts it, a public demonstration simply to sway the public’s opinion. The obstructive rally was planned with an invitation to a politician to attend. It is reasonable to conclude that United Voice would have been aware that vehicles would seek to enter or exit the Brewery during the time of day the event occurred.
I find that the obstructive rally of 26 March 2018 was organised to put immense pressure on CPPL to relax its bargaining position on various issues. It was then repeated following the decision in this application being reserved. This conduct was unfair.

I am satisfied that the unfair conduct undermines collective bargaining. The conduct was co-ordinated, and having observed the footage of the two demonstrations, deliberate in its efforts to effect harm to CPPL by having approximately 100 people stand before the Brewery gates affecting the ability of trucks to enter and exit.
While on some occasions United Voice was prepared to provide an undertaking that it would not engage or organise an obstructive rally, it refused to do so on an enduring basis until bargaining is completed. For that reason, and to ensure that during bargaining such conduct is not repeated, I am satisfied that it is reasonable in all the circumstances to make a final order the kind sought.

Whatever was put by United Voice at [187] was completely disregarded some days later. I suspect the availability of Ms McManus of the ACTU to attend a demonstration outside of the Brewery proved too tempting a proposition to pass up.

Order sought regarding the making, publishing, disseminating or distributing any statement or representation

I find that the statements made by United Voice to the media were made in the course of bargaining. I do not accept the submission of United Voice that its media comments, in an effort to garner public support were a process separate from enterprise bargaining. This is particularly so when, as determined below, many of the statements are false and misleading representations. The statements were made to bring as much pressure as could be reasonably made on CPPL to change its position on some bargaining issues because of the intense media scrutiny on the beer brand.

Threats to close or shut down the Brewery

The first restraint CPPL seeks against United Voice is for the Commission to order that United Voice be restrained from making, publishing, disseminating or distributing any statement or representation (whether in or to the media, in or on social media or howsoever otherwise) to the effect that CPPL has threatened to, is threatening to, wants to or intends to close or shut down the [Brewery] or “Site”.

The Commission would only be persuaded to do so such a thing if firstly, the media statements made by United Voice constituted capricious or unfair conduct that undermines collective bargaining, and secondly, it was satisfied that it is reasonable in all the circumstances to do so.

The relevant PowerPoint presentation slide is reproduced below:

“…

COMPANY CRITICAL POSITION

The long term viability of our brewery at XXXX is dependent on our ability to be flexible and responsive to changes, at a level that we have not seen in the past
Staying the way we are is not an option for the long term

1.   Flexibility in work practices and labour resources
2.   Simplified agreement that is easy to work within
3.   Commercially viable with realistic wages and conditions”[65] (Original emphasis)

The above slide was presented to Employees in July 2017 and later reproduced in an email to Employees in March 2018. Despite Ms Wicks’ evidence and CPPL’s submissions that the slide did not constitute a “threat” to close the Brewery, I consider that the language used is forceful and suggestive of an ultimatum, constituting a threat.

The title, “Company Critical Position” is alarming. The Macquarie Dictionary provides the following definitions, among others, for the word ‘critical’:

· relating to, or of the nature of, a crisis; of decisive importance with respect to the outcome; crucial: the critical moment;
· involving suspense, risk, peril, etc.; dangerous: a critical shortage.

The moment the phrase, “The long term viability of our brewery is…” was pronounced, it lends one to think what might affect the long-term viability of the Brewery? Is the long-term viability of the Brewery an issue? Who makes decisions regarding the long-term viability of the Brewery?

When it is coupled with a highlighted statement, “Staying the way we are is not an option for the long term”, it is, of course, a highly alarming and threatening statement. The statement means what it says; not an option means it cannot continue in its present form.

When a husband and wife hold a discussion that the long-term viability of their marriage is dependent on their ability to be flexible and responsive to change, and staying the way “we” are is not an option, it suggests that if things do not change, the marriage will be over. In the same way, if a parent states to teenage children that the long-term viability of the family’s budget is dependent on the family’s ability to be flexible and responsive to changes, and staying the way “we” are is not an option, it suggests that the family’s budget must be reined in, or the family will be broke.

By including the highlighted “staying the way we are is not an option”, this results in a cry for action; an end result to the satisfaction of CPPL is needed. If such a result does not occur, a resulting, adverse event will occur.

The evidence of United Voice is that CPPL has made this statement and repeated it recently, so when CPPL denies it has plans to close the Brewery if flexibilities are not achieved, United Voice does not “believe” CPPL.

On 12 April 2018 United Voice wrote to CPPL, and relevant to the Brewery, requested CPPL answer if CPPL regards the continuing operation of the Brewery as commercially viable. CPPL responded as follows:

“Yes.
As communicated to you on a number of occasions, including in our letters of 7 March, 13 March and 26 March 2018, the Company has no plans to close the Milton Brewery and has never said that it intends to close the Milton Brewery. Despite this, United Voice continues to make statements to the media to the effect that the Company is threatening to close the Brewery. We trust that in light of this most recent reassurance, no such statements will continue to be made.

United Voice has made recent comments to the media (including in the 10 April 2018 Courier Mail article) that refer to an email the Company sent to employees which included words to the effect that “long term viability of our brewery at XXXX is dependent on our ability to be flexible and responsive to changes at a level that we have not seen in the past’’. This statement was not a threat or reference to jobs/production moving interstate, to the ongoing commercial viability of the Milton Brewery or to the Brewery closing. Rather, this statement means that the Company is operating in a very competitive market and must continuously look for ways to improve the quality of our products and to produce them more efficiently and at lower cost to the customer (whilst maintaining a safe operation). Our competitors are all working to these objectives, so we must too, or risk being left behind.”

It is noted that in the response sent by CPPL it refers only to the sentence, “The long term viability of our brewery at XXXX is dependent on our ability to be flexible and responsive to changes, at a level that we have not seen in the past.” It does not reference the following sentence which I have stated above constitutes language that is forceful and suggestive of an ultimatum, constituting a threat.

When pressed at hearing by me in closing submissions, CPPL stated:

“…I can now say, definitively, on instructions, that to the extent anything we have said in the PowerPoint presentation or the subsequent email referring to it that could be characterised in any way, shape or form as an imputation, implication or implied threat about plans to close the brewery, that was not meant, it was not intended and it is wholly retracted.

Further, and consistent with the position that the company has repeatedly stated, I can say, on instructions, to this Commission that the company does not intend to, does not want to and has no plans to close the brewery.”

Having received earlier correspondence from United Voice at [142] that United Voice is not reassured by any statements made by CPPL to United Voice or publicly because United Voice does not believe CPPL, it is not surprising that United Voice did not accept the commitment given by CPPL at [244]. If United Voice was not going to accept any statement made by CPPL because it didn’t “believe” it, one has to wonder why United Voice bothered asking at all?

I am, accordingly, critical of United Voice for taking a position that despite what CPPL might put in writing in answering questions put to it by United Voice, the union formed its own view of what CPPL intended to do with the Brewery. It had no regard to the answer given to it by CPPL. I am not satisfied, however, that the conduct of United Voice on this point constitutes capricious or unfair conduct that undermines collective bargaining when it was entitled to, and having regard to the PowerPoint presentation and email, reasonably believe that the statement made by CPPL constituted a threat to the Brewery.

If the explanation provided at [246], the effect being a retraction of any imputation that the words used by CPPL constituted a threat or ultimatum to close the Brewery had earlier been provided, it would have gone a very long way to addressing the concerns of United Voice. It is disappointing that only when pressed by the Commission did CPPL take what I consider to be an appropriate, prudent and healing step towards addressing the legitimate fears of Employees based on all of the words used by CPPL in the PowerPoint slide.

For the sake of clarity, I am not satisfied that where United Voice has earlier expressed concerns that CPPL has threatened to or is threatening to close or shut down the Brewery, it had engaged in capricious or unfair conduct that undermines collective bargaining. I trust, however, that given the statement made during the hearing at [246], such further utterances by United Voice will not be made.

Where United Voice has expressed to the media or stated on social media that CPPL “wants to or intends to close or shut down the [Brewery]”, I accept that United Voice has engaged in capricious or unfair conduct that undermines collective bargaining. The most profound example of this is reported below from a newspaper article dated 10 July 2017:

“United Voice coordinator Damien Davie said management from Japanese controlled parent company Lion notified staff in June the Castlemaine Perkins brewery in Milton would be shut down.”

The statement from Mr Davie is false and misleading. During the hearing Mr Davie suggested that he had been misquoted. He also told the media that a “secret source” inside the Brewery had confirmed management had plans to close the Brewery. When pressed in cross-examination Mr Davie could not recall who the secret source might be. Mr Davie’s evidence on these two issues was extremely disappointing and simply not believable. It would have been wise for Mr Davie to make appropriate concessions on these two issues.

Relevant to the order sought at item 2(a), I am satisfied above, and consider it reasonable in all the circumstances to make an order to the following effect:
“……United Voice……..be restrained from making, publishing, disseminating or distributing any statement or representation (whether in or to the media, in or on social media or howsoever otherwise) to the effect that:

CPPL wants to or intends to close or shut down the Site.”

The advisory caution at [250] should result in United Voice, from this date forward, refrain from making claims that CPPL has threatened to or is threatening to close or shut down the Site.

Threats to outsource, shift or move jobs interstate or offshore

The second restraint CPPL seeks against United Voice is for the Commission to order that United Voice be restrained from making, publishing, disseminating or distributing any statement or representation (whether to the media, in or on social media or howsoever otherwise) to the effect that CPPL has threatened to, is threatening to, wants to or intends to outsource, shift or move jobs from the Site to interstate or offshore.

United Voice has stated in the media that CPPL is “racing over the border to send more work down south…”. At [44(e)] it was the media report and not United Voice or Mr Davie stating, “Lion wants to shift production interstate.” United Voice is only responsible quoted statements of its officials, organisers and members. It is not responsible for what is ultimately written by a journalist if not quoted or referenced. I am satisfied, however, that the statement made at [44(k)] is a statement that CPPL has threatened to, is threatening to, wants to or intends to outsource, shift or move from jobs from the Site to interstate, and that in doing so, United Voice has engaged in capricious or unfair conduct that undermines collective bargaining. The statement is false and misleading.

It is not clear where it has been suggested that United Voice has incorrectly claimed that CPPL wishes the product to be brewed offshore.

At [44(p)], United Voice has been on notice that the assertion that CPPL wishes to move the production of XXXX interstate is rejected by CPPL. CPPL’s evidence is that at appropriate times throughout the year and at is discretion, XXXX will be brewed at locations other than the Brewery, and this has been in place for some years. United Voice’s criticism of an increase in this activity is not matched with evidence.

Relevant to the order sought at item 2(b), but without reference to “offshore”, I am satisfied above, and consider it reasonable in all the circumstances to make an order to the following effect:
“……United Voice……..be restrained from making, publishing, disseminating or distributing any statement or representation (whether in or to the media, in or on social media or howsoever otherwise) to the effect that:

CPPL has threatened to, is threatening to, wants to or intends to outsource, shift or move jobs from the Site to interstate.”

Threats to increase the use of interstate labour

The third restraint CPPL seeks against United Voice is for the Commission to order that United Voice be restrained from making, publishing, disseminating or distributing any statement or representation (whether in or to the media, in or on social media or howsoever otherwise) to the effect that CPPL has threatened to, is threatening to, wants to or intends to increase its use of interstate labour at the Site.

Mr Davie has repeatedly stated that CPPL wishes to or threatens to obtain labour from “over the border.” His evidence on this issue is explored at [134]. I found Mr Davie’s evidence to be unreliable when he suggested that what he means is that the labour hire company employing labour hire employees is from other than Queensland. In closing submissions Mr Reed quite properly conceded that Mr Davie was “gilding the lily” on this issue.

I find that Mr Davie has repeatedly referred to CPPL wanting to or threatening to bring labour from “over the border” to mean that the employees would be other than residents of Queensland. It is quite a ridiculously parochial statement to make to the media, and one which Mr Davie would, on the balance of probabilities, know to be false and malicious. The statement is false and misleading.

Relevant to the order sought at item 2(c), I have no trouble in accepting that United Voice has, on this issue, engaged in capricious or unfair conduct that undermines collective bargaining, and it is appropriate in all the circumstances to make an order to refrain United Voice from repeating such statements.

Threats to increase the use of supplementary labour at the expense of Employees

The fourth restraint CPPL seeks against United Voice is for the Commission to order that United Voice be restrained from making, publishing, disseminating or distributing any statement or representation (whether in or to the media, in or on social media or howsoever otherwise) to the effect that CPPL has threatened to, is threatening to, wants to or intends to increase its usage of contractors, casuals, supplementary labour or other third party labour (howsoever described at the Site at the expense of, instead of or in exchange for, existing employees or workers at the Site.

I am not satisfied that any of the media statements made by United Voice at [44] deal directly with purported statements that CPPL has threatened to or wants to or intends to increase its usage of contractors, casuals, supplementary labour or other third party labour at the expense of, instead of or in exchange for existing employees or workers at the Site.
United Voice has demonstrated genuine concern that CPPL proposes in the Proposed Agreement to allow supplementary labour to work at the Brewery and be paid the CPPL permanent rate of pay for casually employed workers. That is, while the CPPL rate of pay is significantly greater than the modern award, supplementary labour engaged would receive the site rate of pay inclusive of the casual loading. If the award rate of pay was, for example, $20 as a permanent employee and $25 as a casual employee, if the site rate of pay was $40 per hour, CPPL wishes for the $40 per hour to be paid to casuals instead of $40 plus 25% = $50 per hour.

There is, of course, nothing unlawful or indeed wrong in CPPL’s desire to absorb significant over-award payments into the casual rate of supplementary labour. It is a bargaining position that CPPL is entitled to pursue.

It should come as no surprise, however, that this is resisted by United Voice (and the CEPU) as genuine concerns are held that in the future, where a decision need be made as to whether to engage a directly employed worker or supplementary labour, the supplementary labour option is cheaper when the costs of annual leave, personal leave, paid public holidays and other entitlements are taken into account.

CPPL submitted that because it does not currently employ direct casual employees there is currently no argument that supplementary labour would be “cheaper”. CPPL is wrong on this issue. A supplementary casual employee paid $40 per hour (without regard for the margin to be paid to the supplier) is a significantly cheaper option for CPPL than employing a directly employed permanent employee on $40 per hour. The permanent employee is entitled to the following approximate paid leave entitlements:

(a)Annual leave – 4 weeks per annum: 4/48 = 1/12^th = 8.33%
(b)Paid public holidays – approximately 11 days per annum = approximately 4.5%
(c)Paid personal leave – 10 days if all taken = approximately 4%

The above is an approximate 17% of additional costs, based on the assumption, of course, that an employee takes all 10 days’ personal leave per annum, but no paid compassionate leave. Other on-costs that employers experience with permanent employees includes the contingency of the payment of notice in lieu and accountancy standards for the incidence of redundancies.

I am not satisfied that in any of the statements made by United Voice it has been said that CPPL has threatened to, is threatening to, wants to or intends to increase its usage of contractors, casuals, supplementary labour or other third party labour at the Site at the expense of, instead of or in exchange for existing employees or workers at the Site.

I accept that United Voice holds a fear that CPPL’s desire to introduce supplementary labour to the Site at the rates of permanent employees, with the casual loading absorbed into the over-award payment will result in a “cheaper workforce”. It is demonstrably clear. I am not satisfied that the link has been stated by United Voice that if that occurs, it will be at the expense of existing employees or workers.

It is appropriate for United Voice to be cautioned against making any future statements that might draw that link. I consider it appropriate that if United Voice holds concerns that future supplementary casual labour paid permanent rates of pay with the casual loading absorbed into the over-award payment will be a “cheaper workforce”, they are entitled to hold and express those views. It is unclear on the evidence before the Commission where supplementary labour might be used. If CPPL is correct, it is in addition to the current workforce, and accordingly, such statements by United Voice relevant to its fears should not cause any alarm for CPPL.

Accordingly I decline to make an order as sought relevant to item 2(d) of the order sought.

Threats to move production interstate

At [44(p)] Mr Davie is quoted as stating, “[t]hey have already admitted to brewing XXXX in southern states, despite marketing our beer as ‘the pride of Queensland’.” For the same reasons at [261 – 263], I consider it reasonable in all the circumstances to make an order to the following effect:

“……United Voice……..be restrained from making, publishing, disseminating or distributing any statement or representation (whether in or to the media, in or on social media or howsoever otherwise) to the effect that:

CPPL has threatened to, is threatening to, wants to or intends to outsource, shift or move production from the Site to interstate.”

Statements as to why industrial action is being taken

The sixth restraint CPPL seeks against United Voice is for the Commission to order that United Voice be restrained from making, publishing, disseminating or distributing any statement or representation (whether in or to the media, in or on social media or howsoever otherwise) to the effect that industrial action is organised by United Voice and taken by Employees for various reasons.

United Voice is opposed to supplementary labour, howsoever named, being engaged on rates that result in the labour being a cheaper alternative to permanent employees. It is not inappropriate for United Voice and its members to campaign, including in the media for what they consider to be a better deal. So long as the caution suggested at [273] is heeded, United Voice is free to suggest that industrial action is being organised and undertaken at the Site in support of a campaign to maintain a 25% loading to casual, supplementary labour.

Having been satisfied that it is appropriate to make orders at [259] and [263], it is appropriate in all the circumstances to make an order to the following effect:

“……United Voice……..be restrained from making, publishing, disseminating or distributing any statement or representation (whether in or to the media, in or on social media or howsoever otherwise) to the effect that:
(a) Any industrial action in relation to the Site is being organised by United Voice and or taken by Employees:

i.For the purpose of supporting or advancing claims to keep jobs and production at the Site local, in Queensland or on home turf; or
ii.Because of concerns about jobs and production at the Site being moved interstate.”

Conclusion

The Order will come into effect from today’s date.

Having had regard to the recent decision[66] of Deputy President Asbury in a related matter involving the parties, relevant to the interim order earlier issued by me, there will be a reasonable period of time afforded to United Voice, relevant to the Order’s existence, to meet its obligations. A reasonable period of time is afforded to United Voice to publish the Order on its Facebook page and prominently on the homepage of its Queensland Branch internet page, and to text its members who are Employees, strictly in accordance with the Order.

Further s.240 conferences with all bargaining representatives will now be convened in an attempt to finalise bargaining for the Proposed Agreement, with the Commission’s assistance. I am prepared to meet with the bargaining representatives as regularly as is practicable to ensure an agreement is reached.

COMMISSIONER

[1] [2017] FWC 4951.

[2] PR600771.

[3] Statement of Damien Davie Annexure DD–02.

[4] PN665.

[5] PN1115.

[6] PN2493 – PN2502.

[7] PN1266 – PN1319.

[8] PN1416 – PN1434.

[9] PN1832.

[10] Statement of Ellie Bassingthwaighte dated 4 May 2018 at [3].

[11] Constituting a nuisance, interference with contractual relations or interference with trade or business by unlawful means.

[12] As to the statutory contraventions, see Esso Australia Pty Ltd v AWU [2015] FCA 758; (2015) 253 IR 304.

[13] Paragraph 14 of UV’s letter dated 29 March 2018.

[14] See also sections 3(f) and 171 of the FW Act.

[15] Assuming for present purposes, their protected status.

[16]TWUA v Transit (NSW) Services Pty Ltd [2016] FWCFB 997 at [15]; CFMEU v Anglo Coal (Capcoal Management) Pty Ltd [2016] FWC 8847 at [97] (Asbury DP); CFMEU v Oaky Creek Coal Pty Ltd [2017] FWC 5380 at [165] (Asbury DP).

[17] APESMA v BHP Coal Pty Ltd [2012] FWA 4435 at [99] (Spencer C); CFMEU v Anglo Coal (Capcoal Management) Pty Ltd [2016] FWC 8847 at [103] (Asbury DP); CFMEU v Oaky Creek Coal Pty Ltd [2017] FWC 5380 at [165] (Asbury DP).

[18] CFMEU v Anglo Coal (Capcoal Management) Pty Ltd [2016] FWC 8847 at [104] (Asbury DP); CFMEU v Oaky Creek Coal Pty Ltd [2017] FWC 5380 at [165] (Asbury DP).

[19]CFMEU v Anglo Coal (Capcoal Management) Pty Ltd [2016] FWC 8847 at [105] (Asbury DP); CFMEU v Oaky Creek Coal Pty Ltd [2017] FWC 5380 at [165] and [254] (Asbury DP).

[20]Jupiters Limited v United Voice [2011] FWA 8317 at [32] and [38]-[40] (Asbury C); AMMA v MUA [2016] FWC 738 at [37]-[48] (Cloghan C); Curtin University and Ors [2016] FWC 3508 at [26]-[28] and [116]-[118] (Williams C) (permission to appeal refused: [2016] FWCFB 6470, especially at [9] and [20]).

[21]Curtin University and Ors [2016] FWC 3508 at [28] and [116]-[118] (Williams C).

[22]Section 409(1)(a) of the FW Act.

[23] PN2419.

[24] PN2431.

[25] Applicant’s Submissions in Reply at [24].

[26] PN2442 – PN2481.

[27] PN2508- PN2509.

[28] The requirement in s.230(1)(a).

[29] The requirement in s.230(2)(a).

[30] The requirement in s.229(4)(a)(i).

[31] The requirement in s.229(4)(b).

[32] The requirement in s.229(4)(c).

[33] The requirement in s.229(4)(d).

[34] ie. the discretionary requirement in s.230(1)(c) has not been satisfied.

[35] Statements in items 1, 3, 4, 6, 9 and 10 in the letter of concerns of 26 March 2018; Statement of Michelle Wicks Annexure MW-16, pp.87-89.

[36] Statement of Damien Davie dated 4 May 2018 (Davie statement) at paragraphs 85, 89.

[37] Attachment 2 to the application at p.4 item 2; Statement of Michelle Wicks Annexure Annexure MW-16, p.90.

[38] PN2544.

[39] (2012) 206 FCR 576 at [10].

[40] See Jupiters Limited v United Voice [2011] FWA 8317 at [38]-[40]; TWU v Veolia Transport Queensland Pty Ltd [2011] FWA 5691 at [65]-[68]; AMMA v MUA [2016] FWC 738 at [22]-[24], [34]-[38], [53]-[55], [121].

[41] Davie statement at paragraphs 5, 32-37, 44, 64, 67 and Annexure DD-02.

[42] Clause 10.5.

[43] See the correspondence of 7 March 2018 (Castlemaine Perkins), 12 March 2018 (United Voice); United Voice draft “Staffing and supplementary labour” clause 9 March 2018); correspondence of 13 March 2018 (Castlemaine Perkins), 10 April 2018 (United Voice); United Voice draft “Job security and third party labour” clause 10 April 2018; correspondence of 11 April 2018 (Castlemaine Perkins); Statement of Michelle Wicks Annexures MW-14 (pp.77-81), MW-15 (pp.82-86), MW17 (pp.93-96), MW-23 (pp.161-163), MW-31 (pp.204-206).

[44] Statement of Michelle Wicks Annexure MW-15 p.86.

[45] Statement of Michelle Wicks Annexure MW-16, p.91.

[46] Statement of Michelle Wicks Annexure MW-31, p.204.

[47] Statement of Michelle Wicks Annexure MW-31, p.204.

[48] Statement of Michelle Wicks Annexure MW-14 p.77-78.

[49] Statement of Michelle Wicks Annexure MW-23 pp.161 and 163.

[50] Statement of Michelle Wicks Annexure MW-15 p.84.

[51] Albeit contingent on acceptance of the pay parity clause (cl.10.5.3) proposed by United Voice on 10 April 2018; cf Endeavour Coal Ltd v APESMA (2012) 206 FCR 576 at [43].

[52] When the subclause became clause 10.5.1(b); Statement of Michelle Wicks Annexure MW-17 pp.95-96.

[53] Selvachandran v Peteron Plastics (1995) 62 IR 371 at 373.

[54] PN2547 – 2551.

[55] (1992) IR 82 at 89.

[56] PN2554.

[57] PN2555.

[58] PN2556-PN2565.

[59] [2010] FWAFB 3510.

[60] [2016] FWC 738.

[61] Ibid at [7].

[62] [2015] FWC 773.

[63] Australian Mines and Metals Association v Maritime Union of Australia (No.3) [2016] FWC 738.

[64] PN1834 – PN1838.

[65] Statement of Damien Davie Annexure DD–02.

[66] Castlemaine Perkins Pty Limited T/A Castlemaine Perkins v United Voice [2018] FWC 4470

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