UGL Operations & Maintenance Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU)
[2016] FWC 7199
•7 OCTOBER 2016
| [2016] FWC 7199 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.418—Industrial action
UGL Operations & Maintenance Pty Ltd
v
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU); Australian Workers’ Union, The
(C2016/5953)
DEPUTY PRESIDENT GOOLEY | MELBOURNE, 7 OCTOBER 2016 |
Alleged industrial action at UGL Operations & Maintenance Pty Ltd at the Geelong site.
[1] UGL Operations & Maintenance Pty Ltd made an application seeking orders that the
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and The Australian Workers’ Union (AWU) stop organising industrial action at the Viva Geelong Refinery site at Refinery Road Corio.
[2] The uncontested evidence 1 of Mr Stephen Roberts, the Contract Manager for UGL, was that on 5 October 2016 a meeting of workers occurred prior to the commencement of work and that after that meeting a picket line was formed blocking the Main Gate to the Refinery and subsequently picket lines were put in place blocking other gates to the Refinery.2
[3] Mr Roberts gave evidence that he was going to advise employees personally to report for work at the muster point but felt it was unsafe to pass through the picket line. 3
[4] As a result, a text message was sent to employees advising them that if they were unable to enter the site then they were to report to the muster point. 4 At 9.40am he sent a further text message to all UGL dayshift employees advising that if they were on site then they were to stay on site and if they could not attend due to restricted access, they were to report to the muster point.5 It was his evidence that approximately 90 UGL employees either were not on site or did not attend at the muster point.6
[5] UGL contended that this failure to attend work or follow the direction to attend at the muster point was industrial action by the employees and that the AMWU and the AWU were organising that industrial action.
[6] The evidence of UGL that the AMWU and AWU had organised and were organising industrial action was as follows:
1. On 22 August a training provider contacted Ms Karen French, a UGL employee, and advised her that some UGL employees received a phone call after which they told other employees “it’s on for the 10.” 7
2. At 6.15am on 5 October there was a mass meeting of employees in the car park near the main gate. 8 Employees were due to commence work at 7am.9 A UGL employee told Mr Roberts that Mr Gavin Penn, an AWU organiser and Mr Tony Hynds, an AMWU organiser were “leading the meeting.” At the meeting a “PSN/Innofield representative held (sic) a motion” in which approximately 60 individuals out of the 170 individuals voted not to attend work and for a picket line. There were AMWU and AWU t-shirts and paraphernalia either being worn or being carried by attendees.10
3. He observed and was informed by other UGL staff that Mr Tony Hynds and Mr Gavin Penn were at the picket line along with some UGL employees and an AMWU delegate and an AWU delegate. 11
4. The Geelong Advertiser quoted Mr Penn as saying the union wants members back at work “as soon as possible” but only after all concerns have been addressed. “We’re not here to play bits and pieces, we want the place fixed and that’s it.” He said. “It’s a dangerous, dangerous, environment to work in so these people are going to have to be 100 per cent convinced that they know they can go home to their wife, kids or partners (before they return to work).” The Geelong Advertiser further quoted Mr Penn as saying “we’re not going anywhere.” 12
5. Mr Roberts said that he did not believe that the underlying industrial issues regarding the PSN employees would be resolved by the start of the commencement of the evening shift and that he understood that employees are on strike until the PSN employees’ agreement matches the conditions in the Geelong Area agreement. 13
6. Mr Chris Gianatti, solicitor for UGL, advised from the bar table that no health and safety issues had been raised with UGL.
Evidence of the AMWU and AWU
[7] The AMWU and AWU did not call any evidence. Officials of the AMWU and AWU were present at the commencement of the hearing but they did not attend the hearing after a short adjournment. Mr Eugene White of Counsel advised that the officials were on their way to Geelong and that he was instructed that they were to attend the site and advise their members that the action was not supported by the unions.
The submissions of UGL
[8] It was submitted that, on the uncontested evidence before the Commission, I could find that the industrial action was occurring and was likely to continue. It was further submitted that I could infer from the organisers role in leading the meeting; the organisers and delegates being present on the picket line; the fact that no dispute had been raised by UGL employees or their representatives about any safety issues; that the dispute was about the industrial instrument applying to the PSN/Innofield employees; that the employees had union paraphernalia; and Mr Penn’s comments to the media, that the AMWU and AWU were organising industrial action.
[9] It was submitted that it was not necessary for me to determine that industrial action is occurring or is likely to happen for the purpose of determining if the unions are organising industrial action. UGL relied upon the decision of Senior Deputy President Richards in Lend Lease Building Pty Ltd v CFMEU and another. 14 In that decision, Senior Deputy President Richards found that industrial action may be organised regardless of whether it eventuates or not or is otherwise in evidence.
The submissions of the AWU and AMWU
[10] Mr White for the unions did not concede that the employees of UGL were engaging in industrial action. However even if they were, he submitted that there was insufficient evidence before the Commission to enable a finding that the AMWU and AWU were organising industrial action to be made.
[11] Mr White submitted that much of the evidence of Mr Roberts was hearsay and should not be given any weight.
[12] In relation to the events of 22 August 2016, even if it were accepted that some UGL employees received phones calls about something that was going to happen on the 10th, nothing that was said could support a finding that the AMWU and AWU were organising industrial action for 5 October.
[13] In relation to the meeting at 6.15am, Mr White submitted that even if I accepted the hearsay evidence that the organisers were “leading the meeting” there was no evidence of what this meant. He submitted that Mr Roberts clearly spoke to someone who was at the meeting. It could be assumed that that person was able to give Mr Roberts a full account of what happened at the meeting, yet there was no evidence about what the organisers said or did at the meeting. Further, the evidence was that a PSN/Innofield employee put the resolution. There was no evidence that the organisers supported the resolution. Mr White submitted that if there had been evidence of positive steps taken by the officials, Mr Roberts would have put this in his witness statement.
[14] Mr White submitted that employees wore or had union gear is not evidence that the AMWU and AWU were organising industrial action.
[15] Mr White submitted the mere presence of the two union organisers at the picket line is not evidence that the AMWU and AWU had organised the industrial action.
[16] In relation to what Mr Penn was alleged to have said to a journalist, Mr White submitted that conveying to a third party the concerns of the workers was not evidence of the AMWU and AWU organising industrial action.
[17] Mr White submitted that no adverse finding should be made as a result of the failure of the AMWU and AWU to call evidence. He submitted that they received late notice of the evidence relied upon by UGL and that the two senior officials who had been present at the commencement of the hearing had needed to attend the site to ensure that the members of the unions were aware that the AMWU and AWU did not support the industrial action.
UGL in reply
[18] Mr Gianatti submitted that I should have regard to the failure of the AMWU and AWU to call evidence. He submitted that the AMWU and AWU could have sought an adjournment or it could have called evidence via telephone as was done by UGL.
Findings
[19] There were no submissions that any industrial action taking place was protected action. UGL and the unions and the employees are bound by the UGL Operations and Maintenance Pty Ltd Geelong Refinery Maintenance Services Enterprise Agreement 2014 which has a nominal expiry date of 31 March 2018.
[20] It was submitted that industrial action is occurring and is likely to continue. However, I accept that it is not necessary for me to make such findings at this time and it would not be appropriate to do so given the absence of service of the application and notice of hearing on the employees. For the purpose of this part of my decision I am prepared to accept that there is a live issue about whether the unions were organising industrial action independent of the conduct of the employees.
Did the AMWU and AWU organise any industrial action and are they organising future industrial action?
[21] I am not satisfied on the evidence before me that it appears that the AMWU and the AWU organised unprotected industrial action or are organising pending unprotected industrial action.
[22] Employers are rarely able to obtain direct evidence of how industrial action is organised. They are not generally privy to the discussions between union officials and between union officials and their members. However it is possible for findings to be made based inferences particularly as the Commission is only required to be satisfied that it appears that industrial action that is not protected industrial action is being organised.
[23] The evidence of UGL is that a meeting lead by the AMWU and AWU organisers took place prior to the commencement of work. This in itself if not evidence that either of the unions organised the industrial action.
[24] I accept the submissions of Mr White that given Mr Roberts spoke to someone in attendance at the meeting he would have been able to obtain information about what was said by the organisers to the meeting. It is noteworthy that the evidence was, that the organisers nor the delegates did not move the resolution to stop work and establish a picket line and there was no evidence that they spoke in favour of such a resolution.
[25] I further accept that the presence of union paraphernalia at the meeting is not evidence that the AMWU and AWU were organising any industrial action.
[26] Further, without more, the mere presence of the union officials and delegates on the picket line is not sufficient to find that the AMWU and AWU were organising industrial action. There was no evidence about what those persons were doing whilst at the picket line.
[27] At first blush it might be said that Mr Penn’s comments to media weigh in favour of a finding that at least the AWU was involved in organising the pending industrial action. He was quoted as saying “we’re not going anywhere” after the journalist referred to the action being ongoing. However I am not satisfied that this is evidence that the AWU was organising ongoing industrial action. The AWU cannot be said to be organising industrial action merely because a union organiser informs the media of the position taken by the employees.
[28] I am therefore not prepared to make the orders sought by UGL against the AMWU and AWU.
DEPUTY PRESIDENT
1 Exhibit R1
2 Ibid at [21]-[22]
3 Ibid at [25]
4 Ibid at [24]
5 Ibid at [28]
6 Ibid at [29]
7 Ibid at [20]
8 Ibid at [21]
9 Ibid at [15]
10 Ibid at [21]
11 Ibid at [23]
12 Ibid at [34] and Exhibit R4
13 Ibid at [27] and [31]-[32]
14 [2014] FWC 4846
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