Toll Transport Pty Ltd t/as Toll Ipec v Transport Workers' Union of Australia New South Wales Branch

[2016] FWC 7432

[2016] FWC 7432

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 418 - Application for an order that industrial action by employees or employers stop etc.

Toll Transport Pty Ltd t/as Toll IPEC
v
Transport Workers' Union of Australia New South Wales Branch; Transport Workers’ Union of New South Wales
(C2016/6127)

DEPUTY PRESIDENT SAMS SYDNEY, 18 OCTOBER 2016

Application by Toll Transport Pty Ltd to stop etc. unprotected industrial action.

[1] This decision will confirm the ex tempore decision given and orders made on 13 October 2016 in respect to this application.

[2] On the morning of 13 October 2016, an application was filed by Toll Transport Pty Ltd t/as Toll IPEC (the ‘applicant’), pursuant to the provisions of s 418 of the Fair Work Act 2009 (the ‘Act’). The application sought orders from the Fair Work Commission (the ‘Commission’) that industrial action stop or not occur, against all employees employed by the applicant at its Bungarribee depot located at 7 William Dean Street, Eastern Creek NSW and not be organised by the Transport Workers’ Union of Australia New South Wales Branch and the Transport Workers’ Union of New South Wales (the ‘Union’). The grounds upon which the application was made were said to be:

1. The applicant conducts business from a site at their Bungarribee depot located at 7 William Dean Street, Eastern Creek NSW (the ‘Site’);

2. On or around 22 September 2016, the applicant raised issues with two sub-contractors being Mr D Rogers of Down the Road Transport Pty Ltd (‘Down the Road Transport’) and Mr D Stratford of Western Express Pty Ltd (‘Western Express’) regarding a calculation error in their invoices which was not rectified.

3. On or around 29 September 2016, the applicant again spoke with the two sub-contractors referred to above and raised errors with their invoices. Again, it was not rectified.

4. As a result of these errors, the invoices for the week ending 22 September 2016 and 29 September 2016 were not processed.

5. On 7 October 2016, Mr D Rogers rectified the Down the Road Transport invoice errors. On 10 October 2016, Mr D Stratford rectified the Western Express invoice errors.

6. On 12 October 2016, Mr S Newton and Ms M Harvey, who are employees of the applicant and are Union delegates at the Site contacted Ms T Green, HR Manager of the applicant and stated that the Site employees and sub-contractors would engage in a stop work meeting at the Site if the invoices were not paid by 5pm that day.

7. Ms T Green advised Mr S Newton and Ms M Harvey that the yard meeting would not be approved and, if it were to go ahead that it would be unlawful action.

8. On 12 October 2016, Ms T Green instructed the Finance Department to pay the outstanding invoices. On this date, Ms T Green and Mr T Jones of the applicant contacted Ms M Harvey and advised her that the unpaid invoices would be paid on 12 and 13 October 2016. The applicant sought confirmation from Ms M Harvey that the employees and contractors at the Site would not engage in the stop work meeting. However, they did not receive confirmation of this.

9. On 12 October 2016, Ms T Green advised Mr G Rodgers who is a Union Organiser that the outstanding invoices were to be paid shortly.

10. The applicant paid the Down the Road Transport invoice on the morning of 12 October 2016 and were in the process of processing the Western Express invoice.

11. At 8.30am on 13 October 2016, employees of the applicant and Union delegates including Mr S Newton and Mr M Stevenson, informed the applicant’s employees and sub-contractors at the Site that there would be a yard meeting at 9am that morning. The applicant informed the Union that it had paid the outstanding invoices. Mr S Newton advised the applicant that there was also a dispute about casual conversion.

12. In addition to the Union delegates informing employees of a yard meeting, other employees were also communicating the message, including Mr M Burges.

13. At 9am on 13 October 2016, employees and sub-contractors at the Site stopped work.

14. At approximately 9.45am on 13 October 2016, the applicant informed the Union delegates that the stop work meeting is not protected industrial action and they should return to work immediately and resolve issues in accordance with the dispute settlement procedure.

15. At approximately 10.15am, the Union delegates informed the applicant that the employees and sub-contractors at the Site would not be going back to work until they were guaranteed that they would be paid for the stop work meeting. The delegates also sought confirmation that the outstanding invoices would had been paid to the sub-contractors.

16. At 11am, the applicant confirmed payment of the outstanding invoices had been made.

17. The stoppage of work amounts to a refusal to perform work and accordingly, is industrial action as defined by s 19 of the Act.

18. The industrial action is not protected within the meaning of s 408 of the Act.

19. The industrial action is contrary to the dispute resolution procedure contained in cl 15 of the Toll Group – TWU Enterprise Agreement 2013-2017 (the ‘agreement’).

[3] The application was accompanied by an application for substituted service to be served on the employees who will be bound by the orders by placing copies of the application on the noticeboards or other site areas commonly used for communicating with employees and served on the Union, in accordance with Rule 42 of the Fair Work Commission Rules 2013. That application was granted.

[3] At a hearing of the application at 2pm on 13 October, 2016 Mr D O’Sullivan of Counsel appeared with permission, pursuant to s 596 of the Act, with Ms K Alam, of the applicant; Mr H Arjonilla appeared with Mr G Rodger, Organiser for the Union. A number of delegates also attended the hearing.

[4] Section 418 of the Act is expressed in the following terms:

“418 FWC must order that industrial action by employees or employers stop etc.

(1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:

(a) is happening; or

(b) is threatened, impending or probable; or

(c) is being organised;

the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.

Note: For interim orders, see section 420.

(2) The FWC may make the order:

(a) on its own initiative; or

(b) on application by either of the following:

(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;

(ii) an organisation of which a person referred to in subparagraph (i) is a member.

(3) In making the order, the FWC does not have to specify the particular industrial action.

(4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:

(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or

(b) which has not ended before the beginning of that stop period; or

(c) beyond that stop period;

the FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.”

[5] This matter concerns a stoppage of work in the form of a stop work meeting, organised by the Union’s delegates on 13 October, 2016. Organisation of the stoppage was by way of notice to the applicant’s employees and sub-contractors at the site by several delegates as well as employees that there would be a yard meeting at 9am. While it was not entirely clear, how long the meeting continued for, my understanding is that all employees had eventually returned to work by 1pm.

[6] It is apparent that the catalyst which led to the stoppage of work was the non-payment of two invoices to two contractors engaged by the applicant. The stoppage of work appears to have been organised in an attempt to place pressure on the applicant to pay these two invoices. It is curious that this issue was the trigger for the unauthorised stop work meeting; given that the delay in payment was caused, not by the applicant, but by the errors of the contractors. Moreover, the delegates had been advised that the invoices were to be paid and, in fact, one of the disputed invoices had been paid the day before.

[7] Nevertheless, there also appears to be a number of other issues which were raised that lie beneath the dispute and which may have led to the stoppage of work. This is evident by Mr Rodger’s account of the dispute during the hearing on 13 October 2016. Mr Rodger said there were a number of unresolved disputes with the applicant during the last 18 months, including one regarding the casual conversion clause of the Agreement. Mr O’Sullivan also referred to contested issues regarding a crib break entitlement under the Agreement.

[8] During the hearing, Mr Arjonilla opposed the orders sought by the applicant on the basis that that there was no dispute that all the employees had returned to work and therefore industrial action was not ‘happening’; and that there was insufficient evidence to establish that further industrial action was ‘threatened, pending or probable’. The applicant sought from the Union an undertaking to the effect that it would not organise any unprotected industrial action against the applicant. The Union declined to give such an undertaking.

[9] The Commission is satisfied, pursuant to s 418(1) of the Act that, at least in respect to those employees and sub-contractors who attended the stop work meeting from around 9am on 13 October 2016, that unprotected industrial action was happening at the time the application was made and continued until around 1pm that day. Given the refusal of the Union to give the undertaking to not organise any further industrial action and the fact that there remains outstanding ‘live’ issues in dispute between the Union and the applicant, I am satisfied that further unprotected industrial action is, at least, probable; See: Harbour City Ferries Pty Ltd v Maritime Union of Australia, The and another [2014] FWC 1880 and Transpacific Industries Pty Ltd v Transport Workers’ Union of Australia[2013] FWC 6175.

[10] Having made these findings under s 418(1) of the Act, the Commission has no discretion — that is, I must make an order that the industrial action not occur and not be organised. Accordingly, I made the orders as sought by the applicant (as was annexed to its application), save for the order being for a period of one month and not three. The orders took effect from 3pm, 13 October 2016.

DEPUTY PRESIDENT

Appearances:

Mr D O’Sullivan of Counsel for the applicant

Ms K Alam of the applicant

Mr H Arjonilla and

Mr G Rodger for the Union

Hearing details:

Sydney.

2016.

13 October.

Via telephone.

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