UGL Operations & Maintenance Pty Ltd v Employees of UGL (as listed in attached Schedule 1)

[2013] FWC 5076

[2013] FWC 5076

FAIR WORK COMMISSION

DECISION

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

UGL Operations & Maintenance Pty Ltd
v
Employees of UGL (as listed in attached Schedule 1)
(C2013/5235 and C 2013/5257)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 26 JULY 2013

Alleged unprotected industrial action at the Shell Geelong Refinery Alleged unprotected industrial action at the Shell Geelong Refinery.

[1] UGL Operations & Maintenance Pty Ltd (the Applicant) lodged an application pursuant to s.418 of the Fair Work Act 2009 (the Act) seeking orders against employees of the Applicant employed to perform maintenance work on the turnaround (the turnaround employees) at the Shell refinery at Geelong.

[2] The first application was listed for hearing at 4pm on 23 July 2013. The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturing Workers Union) (the AMWU) and the Australian Workers Union (the AWU) were notified of the hearing, as it was apparent from the material, that at least some of their members were respondents to the applications.

[3] At that hearing I was advised that a second application had been filed directed at a different group of employees (the maintenance employees). The first application was adjourned and orders for substituted service were issued in respect of both applications. The notices of listing advised that if the employees or their representatives did not attend the hearing the applications would proceed to determination in their absence.

[4] The applications were heard together at noon on 24 July 2013. Mr Lee Buntman of the AWU appeared for the AWU members and Mr Matt McPhee of the AMWU appeared for the AMWU members. I was advised by Mr Buntman and Mr McPhee that all the employees were members of one or other of the unions.

[5] Mr Aaron Davis, the contract manager with the Applicant, gave sworn evidence adopting his two witness statements filed in the proceeding and was not cross examined.

[6] Mr Davis gave evidence that on 22 July 2013 the dayshift turnaround employees commenced work at 7am and worked until 10am and thereafter did not return to work. 1

[7] At 10:45am Mr Davis was presented with a copy of the turnaround employees’ demands, which included a demand for Incolink payments for casual employees and a 25% loading. 2

[8] At about 11:20am Mr Davis addressed a gathering of the employees and told them that many of the matters on the list had been the subject of discussions between the Applicant and the unions. He told the employees that the agreed dispute resolution procedure was not being followed and that there would be no further discussion of the demands until the employees returned to work. He also reminded employees that some of the matters on their list were the subject of a Fair Work Commission decision and that there were orders in place directed at the delegates and the unions. He advised the employees to return to work. 3

[9] The employees did not return to work.

[10] At 7.30pm Mr Davis was informed that the night shift turnaround employees were not performing work. Mr Davis put to the night shift employees the same matters he had put to the dayshift employees and advised them to return to work. Each employee was handed a letter directing them to return to work. The employees did not return to work. 4

[11] On 23 July 2013 the dayshift employees did not perform any work. An AMWU organiser, Mr McPhee and an AWU organiser, Mr Gavin Penn attended the site at around 8:45am. After meeting with the employees, Mr Penn and Mr McPhee told Mr Davis that the employees were concerned about the 25% loading and that the employees didn’t care about Commissioner Blair’s decision as they had been getting this loading for 20 odd years “so why give up the fight for it now.” 5

[12] Mr Davis gave evidence that on 23 July 2013 the maintenance crew (as opposed to the turnaround crew), who were rostered to work on the dayshift, did not work. 6 It was his evidence that the night shift employees also did not attend work on 23 July 2013.

[13] On 24 July 2013, there was a meeting of employees with Mr Davis and other managers. Mr Terry Elliott, the national IR manager, told the employees that he was there to discuss their 14 demands. He advised them that there was a dispute resolution process that had not been followed and that until they returned to work the Applicant would not be discussing their demands. The employees were told of the hearing at the Fair Work Commission at 12 noon that day. The Applicant’s representatives left the meeting and after a resolution was passed by the employees, the employees left the site.

[14] The dayshift turnaround employees and the maintenance employees did not return to work.

[15] Mr Davis’s evidence was not contested and no evidence was called by the employees.

[16] The Applicant sought orders directed at the employees. No submissions were made by the employees’ representatives that orders should not be made.

[17] At the conclusion of the hearing I advised that I was satisfied that industrial action was happening and was likely to continue. The industrial action was the stoppage of work of the Applicant’s employees at the Shell refinery.

[18] I did note that some of the employees on the Applicant’s list were either absent, on leave or had not left the site. The Applicant advised that it was not seeking orders against those employees nor against employees that had not been served with the application and the notice of listing.

[19] The only matter in dispute between the parties was the length of the order. At the conclusion of the hearing I advised that I would issue an interim order 7 and determine the question of the length of the order at a later date.

[20] The Applicant sought orders to operate until the nominal expiry date of UGL Resources Pty Ltd Shell Geelong Refinery Enterprise Agreement 2011 (the Agreement) which is 31 March 2014.

[21] The employees’ representatives submitted that the order should only operate for three weeks as the turnaround would be completed in three weeks. It further submitted that if the Commission considered a longer period was necessary, then it should not make orders until 31 March 2014 as that would be excessive and unfair to the employees.

[22] The employees’ representatives relied on the decision of then Vice President Ross 8 concerning a dispute which involved a series of industrial action by the CFMEU, where he agreed with the submissions of the CFMEU that it was not appropriate for the order to operate until the conclusion of the project.9

[23] Further the employees’ representatives relied on the decision of the Full Court of the Federal Court in Transport Workers Union of New South Wales v Australian Industrial Relations Commission 10 in which it said “the interests of each individual employee against whom it is proposed to make an order assume greater importance in the light of the availability of civil penal consequences for failure to comply with the order.”11

[24] That discussion of course occurred in the context where orders were made against employees who had not been notified of the hearing and therefore were not afforded the opportunity to make submissions and call evidence as to why orders should not be directed against them. That is not the case here.

[25] The Applicant submitted that it was necessary, given the history of this matter, that the order extend until the nominal expiry date of the Agreement. It submitted that the evidence established that the dispute was not going away. In support of this contention, it pointed to the demand by the employees for Incolink payments for casuals and a 25% loading, matters which were the subject of arbitration by Commissioner Blair. The Applicant relied on the statements made to Mr Davis by the union organisers that the employees were not willing to give up the fight for the 25% loading despite Commissioner Blair’s decision.

[26] The Applicant also relied upon the express provision in the Agreement at clause 1.8.12 which provides that:

“It is a fundamental condition of this Agreement and the Employee’s Contract of Employment that no industrial action shall occur during the term of this Agreement.”

[27] The Applicant submitted further that the employees had not complied with the dispute resolution procedure under the Agreement.

[28] The Applicant acknowledged that the turnaround was scheduled for another three weeks but submitted that that period could be extended. It was also submitted that further shutdowns would occur during the life of the Agreement and that employees would be sourced from the same labour pool. Further, it submitted that the maintenance employees were required for the duration of the contract.

History of the dispute

[29] The Agreement was a greenfields agreement made between the Applicant and the AWU and the AMWU and approved by Fair Work Australia on 24 June 2011. Work commenced at the Shell refinery in November 2012.

[30] The Applicant first sought a s.418 order on 1 February 2013 directed against the AMWU and the AWU as a result of the stoppage of work of dayshift employees at the Shell refinery. In interim order was issued on that day. 12 As a result of undertakings given by the unions the application was withdrawn on 5 February 2013.

[31] On 2 April 2013 the Applicant made an application 13 pursuant to s.739 of the Act in relation to a dispute that existed between the Applicant and the unions over the interpretation of certain clauses in the Agreement. These included the applicable rate to be paid to casuals working overtime, the applicable severance benefits for casuals and the meal breaks clause. This matter was allocated to Commissioner Blair for conciliation and subsequently arbitration.

[32] On 4 April 2013 a further s.418 application was made by the Applicant. The Applicant sought orders against the unions and the employees. Senior Deputy President Watson issued an interim order on 4 April 2013. 14 At the hearing on 8 April 2013 the Applicant withdrew its application for orders directed at the employees. Uncontested evidence was brought by the Applicant that industrial action was occurring and was threatened in relation to the matters that were in issue before Commissioner Blair.15 A final order was issued on 9 April 2013. That order was directed to the unions and two employees, Mr Spice and Mr Winfield. The order was directed at stopping industrial action being taken in relation to the matters in the dispute before Commissioner Blair.16 That order runs until the nominal expiry date of the Agreement.

[33] On 4 July 2013, Commissioner Blair handed down his decision in relation to the dispute. 17 Commissioner Blair found that the casual loading was not included in the calculation of overtime under the Agreement. He also found that casual employees were not entitled to severance payments under the Agreement. The unions had accepted that there was no entitlement to a 20 minute paid meal break so that matter was not a subject of Commissioner Blair’s decision. Commissioner Blair had rejected each of the employees’ claims.

Conclusion

[34] It was submitted by the Applicant that the employees have not accepted Commissioner Blair’s decision and will continue to make claims for matters that Commissioner Blair had determined there is no current entitlement to under the Agreement. It was submitted that without orders, industrial action would continue to be taken in support of those claims and other claims.

[35] Mr McPhee and Mr Penn clearly conveyed the employees’ views to Mr Davis on this issue. Mr McPhee was present at the hearing of this evidence and did not contradict in any way the evidence given by Mr Davis. I therefore accept that the employees intend pursuing this matter, irrespective of Commissioner Blair’s decision. No submissions were made to the contrary.

[36] I also accept that the employees are not willing to comply with their obligations under the dispute resolution procedure in the Agreement and are taking unprotected industrial action in support of their claims and have threatened to take industrial action in support of their claims. No submissions were made to the contrary.

[37] While I accept that an order in relation to employees would not normally run beyond period of their engagement, in this case for the turnaround employees until the conclusion of the turnaround, I accept that these very employees are likely to be engaged on future turnarounds before the nominal expiry date of the Agreement and are likely to take that opportunity to further pursue their claims. I also accept that there are maintenance employees whose employment is not limited to the turnaround. Given the history of the matter, there is no evidence that these employees will not continue with their claims and continue to take unprotected industrial action in support of their claims.

[38] I have therefore decided to issue final orders which will operate until the nominal expiry date of the Agreement.

DEPUTY PRESIDENT

SCHEDULE 1

NAME	SHIFT
Adam Coles	DAY
Alex Josifovski	DAY
Andrew Prekop	DAY
Andrew Walker	DAY
Anton Grubesic	DAY
Barry Slaven	DAY
Ben Clarke	DAY
Ben Godwill	DAY
Brandon Morely	DAY
Brendan Smith	DAY
Cameron Finn	DAY
Chris Mainbridge	DAY
Clinton Heane	DAY
Corey Collins	DAY
Dale Barker	DAY
Daniel Hannegraff	DAY
Darren Gillett	DAY
Dave Dunn	DAY
Fabian Allendes	DAY
Frank Di Base	DAY
Frank Renic	DAY
Gary Spice	DAY
Gavin Harding	DAY
Ian Calderwood	DAY
Jackson Loraine	DAY
Jai Hayes	DAY
James Coates	DAY
James Silarish	DAY
Joe Cassidy	DAY
Joseph Nelis	DAY
Julian Zuvella	DAY
Kenneth Rae	DAY
Klay Bridson	DAY
Leigh Bisby	DAY
Leigh Winfield	DAY
Lorenzo Pace	DAY
Matthew Baber	DAY
Michael Mostert	DAY
Brent Smith	TURNAROUND
Clinton Dunbar	TURNAROUND
Colin Noda	TURNAROUND
Frank Posilovic	TURNAROUND
Gary McKane	TURNAROUND
John Kozdra	TURNAROUND
John Roe	TURNAROUND
Lawrence Farrugia	TURNAROUND
Marc Kensell	TURNAROUND
Matthew Thannhauser	TURNAROUND
Michael Doncovski	TURNAROUND
Michael Gravina	TURNAROUND
Tonia Parkinson	TURNAROUND
Aaron Egberts	MAINTENANCE/PROJECTS/OTHER
Aaron Loone	MAINTENANCE/PROJECTS/OTHER
Adam Clarke	MAINTENANCE/PROJECTS/OTHER
Adrian Blake	MAINTENANCE/PROJECTS/OTHER
Adrian Docherty	MAINTENANCE/PROJECTS/OTHER
Andy Holden	MAINTENANCE/PROJECTS/OTHER
Barry Love	MAINTENANCE/PROJECTS/OTHER
Bill Giles	MAINTENANCE/PROJECTS/OTHER
Brett Dodd	MAINTENANCE/PROJECTS/OTHER
Des Gillett	MAINTENANCE/PROJECTS/OTHER
Des Gough	MAINTENANCE/PROJECTS/OTHER
Duc Tri Tran	MAINTENANCE/PROJECTS/OTHER
Eric Lawrence	MAINTENANCE/PROJECTS/OTHER
Erms Barini	MAINTENANCE/PROJECTS/OTHER
Frank Cosic	MAINTENANCE/PROJECTS/OTHER
Frank Franzese	MAINTENANCE/PROJECTS/OTHER
Glenn Moran jr	MAINTENANCE/PROJECTS/OTHER
Glenn Rush	MAINTENANCE/PROJECTS/OTHER
Grant Hepburn	MAINTENANCE/PROJECTS/OTHER
Grant Quarrell	MAINTENANCE/PROJECTS/OTHER
Greg Armstrong	MAINTENANCE/PROJECTS/OTHER
Greg Hider	MAINTENANCE/PROJECTS/OTHER
Jamie Mawson	MAINTENANCE/PROJECTS/OTHER
Robert Lovell	MAINTENANCE/PROJECTS/OTHER
Sam Pino	MAINTENANCE/PROJECTS/OTHER
Sam Puglisi	MAINTENANCE/PROJECTS/OTHER
Scott Trewin	MAINTENANCE/PROJECTS/OTHER
Sonny Rawhiti	MAINTENANCE/PROJECTS/OTHER
Thomas Barsic	MAINTENANCE/PROJECTS/OTHER
Terry Ellingsen	MAINTENANCE/PROJECTS/OTHER
Stephen Gourdon	MAINTENANCE/PROJECTS/OTHER
Steve Anderson	MAINTENANCE/PROJECTS/OTHER
Steve Duxon	MAINTENANCE/PROJECTS/OTHER
Steve Keane	MAINTENANCE/PROJECTS/OTHER
Steven Reid	MAINTENANCE/PROJECTS/OTHER
Patrick Nicholls	DAY
Paul Atkison	DAY
Paul Young	DAY
Peter Chalmers	DAY
Rob Cosic	DAY
Robert Cuddy	DAY
Robert Dowsett	DAY
Roslyn Vertigan	DAY
Russell De Goldi	DAY
Sam Hansen	DAY
Shane Fillippe	DAY
Simon Blysak	DAY
Ted Renic	DAY
Tom Prpic	DAY
Tony Skrabo	DAY
Vaughn Spice	DAY
Wayne Harding	DAY
Zvon Volarevic	DAY
Cathryn Morris	NIGHT
Clayton Wells	NIGHT
Conan Tawha	NIGHT
Daniel Lynch	NIGHT
Dean Linic	NIGHT
Gerald McMillan	NIGHT
Glen Curtis	NIGHT
Grant Witham	NIGHT
Jed McGennisken	NIGHT
Joel Ritzer	NIGHT
Julie Dawson	NIGHT
Matthew Brady	NIGHT
Matthew Brunner	NIGHT
Michael Peace	NIGHT
Paul Pengelly	NIGHT
Phillip Lonsdale	NIGHT
Rino Smilovic	NIGHT
Ryan MacGregor	NIGHT
Andrew Veal	TURNAROUND
Bram Goodwin	TURNAROUND
Brendan Mills	TURNAROUND
Brendan Van Slageren	TURNAROUND
Daniel Sheridan	TURNAROUND
Glenn Moran	TURNAROUND
Ivan Luburic	TURNAROUND
Jason Fowler	TURNAROUND
John Angelowitsch	TURNAROUND
Michael Selvidge	TURNAROUND
Nathan Henley	TURNAROUND
Nick Milinkovic	TURNAROUND
Nick Savcin	TURNAROUND
Ricky Lowe	TURNAROUND
Russell Cooper	TURNAROUND
Tony Baban	TURNAROUND
Wayne Groeger	TURNAROUND
Brickley Hepburn	MAINTENANCE/PROJECTS/OTHER
Cain Pikimaui	MAINTENANCE/PROJECTS/OTHER
Charlie Aqualina	MAINTENANCE/PROJECTS/OTHER
Chris Hart	MAINTENANCE/PROJECTS/OTHER
Damien Loone	MAINTENANCE/PROJECTS/OTHER
Daniel Barsic	MAINTENANCE/PROJECTS/OTHER
Daniel Menzel	MAINTENANCE/PROJECTS/OTHER
Darren Camilerri	MAINTENANCE/PROJECTS/OTHER
Dennis Fraser	MAINTENANCE/PROJECTS/OTHER
Jeff Davis	MAINTENANCE/PROJECTS/OTHER
John Tantuccio	MAINTENANCE/PROJECTS/OTHER
Darryl Gemmil	MAINTENANCE/PROJECTS/OTHER
Josh Landsbury Lowe	MAINTENANCE/PROJECTS/OTHER
Justin Taylor	MAINTENANCE/PROJECTS/OTHER
Larris Sabanagic	MAINTENANCE/PROJECTS/OTHER
Marcel Breed	MAINTENANCE/PROJECTS/OTHER
Matthew Lewis	MAINTENANCE/PROJECTS/OTHER
Mick Yarker	MAINTENANCE/PROJECTS/OTHER
Nathan Venema	MAINTENANCE/PROJECTS/OTHER
Nick Keays	MAINTENANCE/PROJECTS/OTHER
Nick Pavilcic	MAINTENANCE/PROJECTS/OTHER
Paul English	MAINTENANCE/PROJECTS/OTHER
Paul Zavaglia	MAINTENANCE/PROJECTS/OTHER
Reece Ogle	MAINTENANCE/PROJECTS/OTHER
Tim Sheridan	MAINTENANCE/PROJECTS/OTHER
Tim Welsh	MAINTENANCE/PROJECTS/OTHER
Tony Mollenhaur	MAINTENANCE/PROJECTS/OTHER
Travis Marks	MAINTENANCE/PROJECTS/OTHER
Tristan Pavia	MAINTENANCE/PROJECTS/OTHER
Wayne Falzon	MAINTENANCE/PROJECTS/OTHER
Wayne Hunt	MAINTENANCE/PROJECTS/OTHER
Wayne Thomas	MAINTENANCE/PROJECTS/OTHER
William Herbert	MAINTENANCE/PROJECTS/OTHER
Zeb Tawha	MAINTENANCE/PROJECTS/OTHER

 1   Exhibit A1 at [22]

 2   Ibid at [26]

 3   Ibid at [35]-[38]

 4   Ibid at [49]-[53]

 5   Ibid at [56]-[59]

 6   Exhibit A2 at [4]

 7   PR539347

 8   Grocon Constructors Pty Ltd and Another, PR953205

 9   Ibid at [41]

 10 [2008] FCAFC 26

 11   Ibid at [43]

 12   PR533729

 13   C2013/3795

 14   PR535398

 15   UGL Operations & Maintenance Pty Ltd v the AWU and AMWU [2013] FWC 2125 at [7]

 16   PR535490

 17   UGL Operations & Maintenance Pty Ltd v the AWU and AMWU [2013] FWC 4279

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