USG Boral Building Products Pty Limited T/A USG Boral v Construction, Forestry, Maritime, Mining and Energy Union

[2018] FWC 3795

[2018] FWC 3795

FAIR WORK COMMISSION

DECISION

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

USG Boral Building Products Pty Limited T/A USG Boral
v
Construction, Forestry, Maritime, Mining and Energy Union
(C2018/3460)

COMMISSIONER MCKINNON MELBOURNE, 27 JUNE 2018

Alleged industrial action at USG Boral Building Products Pty Ltd, Port Melbourne factory - unprotected industrial action.

[1] On Monday 25 June 2018, USG Boral applied under section 418 of the Fair Work Act 2009 (the Act) for orders that unprotected industrial action stop, not occur and not be organised. The application was directed at production employees of USG Boral who are covered by the USG Boral & CFMEU Port Melbourne Production & Distribution Employees Enterprise Agreement 2015-18 1 (the Agreement) and who work on the board line2 at its Port Melbourne factory in Victoria (the Employees). USG Boral also seeks orders against the CFMMEU in its own right. The CFMMEU opposes the application.

[2] The matter was listed for hearing on Tuesday 26 June 2018. USG Boral was represented by Australian Business Lawyers with permission. The CFMMEU represented the Employees. Mr Jason Biggs (Plant Manager) and Mr Koral Doluner (Production Manager) gave evidence for USG Boral. 3 Five employees gave evidence for the Employees – Mr Rod Navoa, Mr Tan Luong, Mr Michael Henry, Mr Ralph Frisina and Mr Arthur Vakaris.4

Background

[3] According to Mr Biggs, the Port Melbourne factory operates 24 hours a day over a rotating four shift roster. Day shift is from 6.00am to 6.00pm and night shift is from 6.00pm to 6.00am. The roster is manned by four crews – A Shift, B Shift, C Shift and D Shift. There are approximately 7 persons rostered each shift.

[4] The Agreement nominally expires on 30 June 2018. In May 2018, the parties commenced bargaining for a replacement enterprise agreement. According to USG Boral, since the commencement of bargaining there have been a number of ‘incidents’ of unlawful industrial action.

[5] Since on or about 4 June 2018, it is alleged that employees have refused to train labour hire workers (the labour hire refusal).

[6] In the period from 8 to 21 June 2018, it is alleged that Level E employees refused to undertake a requirement of their role to cover Shift Team Leader (STL) absences (the STL refusal).

[7] On the morning of Friday 15 June 2018, it is alleged that B Shift employees commenced work 25 minutes late without authorisation after attending a union meeting prior to their shift, in circumstances where they knew their absence was not approved (the first stoppage).

[8] On the morning of Saturday 16 June 2018, it is alleged that C Shift employees commenced work 45 minutes late without authorisation after attending a union meeting prior to their shift, in circumstances where they knew their absence was not approved (the second stoppage).

[9] On Saturday 23 June 2018, it is alleged that each of the five A Shift employees rostered to work night shift did not attend work for medical or family reasons but that in reality their absence was a coordinated form of industrial action (the Saturday absence).

Relevant law

[10] Section 418 of the Act provides as follows:

“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.”

[11] Section 19 of the Act defines “industrial action”. It includes:

(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;

(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work; and

(d) the lockout of employees from their employment by the employer of the employees, by preventing employees from performing work under their contracts of employment without terminating those contracts.

[12] Industrial action does not include action by employees that is authorised or agreed to by the employer of the employees; action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer; or employee action based on the employee’s reasonable concern about an imminent risk to his or her health or safety, where the employee has not unreasonably failed to comply with directions to perform other safe and appropriate available.

[13] Industrial action is not protected industrial action under the Act if it is taken in the period after an enterprise agreement is approved by the Commission until its nominal expiry date. Industrial action during this period exposes a person concerned to orders that the Federal Court or Federal Circuit Court considers necessary to stop, or remedy, its effects. 5

Are the incidents ‘industrial action’?

The labour hire refusal

[14] Mr Biggs gave evidence that while USG Boral has used labour hire workers for a number of years, they have only been used on the board line since August 2017. Use of labour hire assists with allocating training time for employees as well as covering absences. Following the introduction of labour hire workers on the board line, the Employees raised concern about who could be required to train labour hire workers. USG Boral advised that any competent person was able to provide on the job training to labour hire workers, while the Employees sought that training be provided by certified or accredited assessors. 6

[15] Mr Biggs says two of the four shift crews (A Shift and B Shift) accepted the introduction of labour hire workers but the other two (C Shift and D Shift) did not. When labour hire workers were rostered on D Shift in 2017, no one provided them with training and they became ‘floaters’. After a while, USG Boral did not push the issue for C and D Shift. 7

[16] On 16 May 2018 a dispute was notified to the Commission in relation to the use of labour hire workers. According to Mr Biggs, in principle resolution was reached, but in June 2018 he became aware that employees were still refusing to train labour hire workers. 8

[17] Mr Doluner gave evidence about the request for training to be conducted by accredited assessors. He says one or two months ago, a labour hire worker was put on C Shift as there was a lot of absenteeism at the time. He wanted the labour hire worker trained on forklift driving, the “most basic job”, and this occurred. On Monday 25 June 2018 Mr Doluner says he was approached by a union delegate, Steve Vakoustsis, who told him that C Shift wanted trainers of labour hire workers to be accredited. The issue was escalated to Mr Biggs and human resources. One or two hours later, C Shift changed its position and agreed that training could be done by any ‘competent person’. 9 According to Mr Doluner, D Shift have always refused to train labour hire workers and for that reason, there is no labour hire worker allocated to that shift.10

[18] Mr Vakanis is a delegate who works in distribution at the factory. He says there was an issue about training for labour hire workers compared to competent “fulltimers” (that is, direct employees) and labour hire workers being ‘put before’ employees. He says the issue “boiled over” when a labour hire worker was found training another labour hire worker on a high risk forklift. He says union delegates and USG Boral met to discuss the issue (although D Shift was not involved). A CFMMEU organiser “Paul” subsequently confirmed that competent persons could be asked to train labour hire employees. As of 11.00am on 25 June 2018, Mr Vakanis says “now we understand”. He says C Shift is no longer refusing to train labour hire workers, but does not know about D Shift. 11

[19] Mr Frisina is a delegate with 18 years’ service. He works in the compounds area of the factory and is a ‘train the trainer’ who has trained both employees and labour hire workers. He agrees with Mr Vakanis that while employees initially resisted training labour hire workers, Paul from the CFMMEU had since confirmed that “somebody competent” could do the training and that he had made a mistake when he said otherwise. 12

[20] The evidence supports a finding that C Shift crew refused to train labour hire workers for a short period on 25 June 2018.

[21] The evidence also supports a finding that D Shift crew does not, and has not, agreed to train labour hire workers. I accept the evidence of Mr Biggs and Mr Doluner that USG Boral asked D Shift crew to train labour hire workers at the time they were introduced to the board line and that D Shift crew did not train them as requested. That refusal would be a restriction on the performance of work, which falls within the definition of industrial action in section 19 of the Act. However, I find that USG Boral decided not to ‘push it’ and instead employed another permanent employee on D Shift. There is no evidence of any subsequent direction to D Shift to train labour hire workers and I am not satisfied that D Shift could refuse such a direction in circumstances where no labour hire worker is presently rostered on their shift.

[22] That is not to say that if D Shift crew is required by USG Boral to train labour hire workers, they are entitled to refuse the request. Any such refusal would constitute a restriction on the performance of work within the definition of industrial action.

[23] The refusal of C Shift crew on 25 June 2018 to train labour hire workers at the request of USG Boral was industrial action. The refusal of D Shift crew to train labour hire workers in 2017 was industrial action. On the facts, I am not satisfied that there has been any actual refusal to train labour hire workers by D Shift crew since USG Boral employed a permanent employee on that shift.

The ‘STL’ refusal

[24] Mr Biggs gave evidence that Level E employees had recently been refusing to provide coverage for STLs, which is a requirement of their role and has occurred for many years. Specifically, he says Mr Doluner told him on 8 June 2018 that Lucas Wood and Chris Sepulveda were not prepared to cover a planned STL absence on 11 June 2018. On 11 or 12 June 2018, Mr Vakoustsis also refused to cover an STL absence. On 21 June 2018, Mr Biggs says he had a discussion with Mr Wood about the refusal. He says Mr Wood said he was “not going to step up and for the STL because I don’t want that stress”. Mr Wood did, however, agree to cover an STL absence that day. Mr Biggs says Level E employees now appear to be covering STL absences again. 13

[25] Mr Doluner gave evidence that Level E employees act as STL when another STL is absent. He says a “couple of weeks ago” Level E employees on C Shift and D Shift told him they would not be acting up as STL anymore. Mr Doluner discussed the issue with them and asked them to reconsider. He advised them that in his view, it was an inherent part of their role. Except for one employee, Chris Sepulveda, he says Level E employees eventually changed their mind and are again acting as STL when required. According to Mr Doluner, Mr Sepulveda has not changed his mind and is not acting up in that role. Operationally this is being managed by allocating that work to Mr Wood and otherwise being “ignored”. 14

[26] Both Mr Vakanis and Mr Frisina gave evidence that to the best of their knowledge, Level E employees are now acting up as STL when required and that they did not know Mr Sepulveda was continuing to refuse STL duties. 15

[27] I am satisfied that the STL refusal has occurred and that it is a limitation on the acceptance of work within the definition of industrial action in section 19 of the Act.

The first and second stoppages

[28] Mr Biggs gave evidence about ongoing communication between USG Boral and the CFMMEU about a request for paid union meetings in connection with bargaining for the replacement enterprise agreement. According to Mr Biggs, USG Boral has no obligation to provide paid union meetings and it is not prepared to stop operations and customer supply for that purpose. 16

[29] On 8 June 2018 a bargaining dispute was notified to the Commission dealing with the request for paid union meetings. A conference was convened by the Commission on 12 June 2018 but the matter was not resolved. 17

[30] On 14 June 2018, Mr Biggs says Mr Frisina called him to advise that Mick Myles (CFMMEU Organiser) would be on site at 5.30am the next day to meet with employees before day shift and after night shift (the pre-shift meeting). Mr Biggs and Mr Frisina agree that Mr Biggs was told no employees would be prevented from starting work at 6.00am due to the pre-shift meeting. 18

[31] On 15 June 2018, Mr Biggs says B Shift crew remained in the pre-shift meeting until after 6.25am which meant they were 25 minutes late for work. On 16 June 2018, he says C Shift crew remained in the pre-shift meeting until after 6.45am, which meant they were 45 minutes late for work. He says CCTV footage confirms his account in each case and that none of the absences were authorised.

[32] Mr Frisina says employees are seeking paid union meetings because “all in one” meetings help to reduce misunderstanding among employees about what is happening in bargaining. He says the matter has been discussed in the consultative committee but so far agreement has not been reached. He agrees that paid meetings need to be authorised by USG Boral. Mr Frisina says during the pre-shift meeting on 15 June 2018, he “saw blokes getting up” at 6.00am and heading off. As the line was not stopped, he assumed employees who stayed in the lunch room were not working. He accepts that there was no approval for employees to be absent during work time for the pre-shift meeting and says employees knew that having the meeting on company time was not authorised. 19

[33] I am satisfied that the late attendance for work by one or more employees of B Shift Crew on 15 June 2018 and by one or more employees of C Shift Crew on 16 June 2018 was industrial action in the form of a failure to attend for work for 25 minutes and 45 minutes respectively.

The Saturday absence

[34] Mr Biggs says six people on A Shift were rostered for night shift on Saturday 23 June 2018, including five employees and one labour hire worker. He says on Saturday, all five employees called to say they would not be in for work that night over a period from 9.30am to 3.00pm. According to Mr Biggs, there was no earlier indication that any of the employees were unwell or unable to attend for work. He notes that two of the employees, Mr Luong and Mr Navoa, accepted overtime the following Sunday and Monday night respectively. The only person who did not indicate they were unable to attend work on Saturday night was the labour hire worker. As a result of the non-attendance, the Saturday night shift was cancelled and production ceased. 20

[35] Mr Biggs says it is unprecedented and extraordinary that all 5 employees would be unable to attend work on the same shift. He produced a history of shift absences for A Shift crew in the period from 6 June 2016 to 31 May 2018. In that period, there were no shifts with more than two employees absent at the same time and only 11 occasions where there were two simultaneous absences. 21

[36] Mr Henry, Mr Luong and Mr Navoa each gave evidence about their absence from work on Saturday 23 June 2018. Mr Henry said his son was sick and he needed to stay home and help his wife care for their two children. Mr Luong said he had been sick with a “cold”. Mr Navoa said he had “something on his throat”, that he was not sick the day before and was not sick the following day when he worked overtime. Each said they had not spoken to anyone from the CFMMEU about their absence prior to it occurring. Each provided a medical certificate in relation to their absence. 22

[37] Mr Vakanis and Mr Frisina both say they only found out on 25 June 2018 that A Shift employees were all absent from work on Saturday 23 June 2018. 23

[38] There is no evidence that A Shift was advised or encouraged not to attend work by the CFMMEU or that they collectively decided to withdraw their labour for the night. USG Boral says I can draw an inference due to the nature of the absence and the history of personal leave use at the site. The CFMMEU says there is no reason to look behind the medical certificates provided by employees. In a somewhat extraordinary submission, it says even if employees did commit misconduct, for example, so they could watch the football, there is no evidence that their absence was of an industrial character and accordingly, it was not industrial action.

[39] The contest of facts on this issue is not easy to resolve. On the one hand the medical certificates support the employee’s evidence and there is nothing to contradict it. On the other hand, the statistics are hard to ignore. There is no precedent in the two years to June 2018 that every employee on shift would simultaneously be unable to work due to illness or carer’s leave. It is also relevant that bargaining is underway and that at the earliest stages of bargaining, the parties are already in dispute.

[40] On balance, the evidence before me does not establish that the failure to attend work by A Shift crew on Saturday 23 June 2018 was industrial action.

Is the industrial action unprotected?

[41] It is uncontroversial that industrial action taken before the nominal expiry of an enterprise agreement cannot be protected industrial action. The nominal expiry date of the Agreement has not yet passed. It follows that any industrial action taken prior to the nominal expiry date of the Agreement is not, and would not be, protected industrial action.

Must orders be made?

[42] If it appears that unprotected industrial action by one or more employees is happening; or is threatened, impending or probable; or is being organised, I must order that it stop, not occur, or not be organised, as the case may be.

The labour hire refusal

[43] As noted above, I am satisfied that the labour hire refusal is a form of industrial action.

[44] It appears to be agreed that there is no current refusal by C Shift to refuse to train labour hire workers, and for the reasons above, nor is there any such refusal by D Shift. It appears to be agreed that no issue arises in relation to A Shift and B Shift.

[45] I am not satisfied that industrial action in the form of the labour hire refusal is happening. I am also not satisfied that it is action that is threatened, impending, or probable. C Shift have accepted the advice of the CFMMEU that any competent person can train labour hire workers. If in the future, USG Boral requires D Shift to do so, I consider it likely that it will also accept the position of the CFMMEU in this respect. There is no evidence that the labour hire refusal is being organised.

[46] It follows that there is no scope for an order under section 418 of the Act on this basis.

The ‘STL’ refusal

[47] The evidence establishes that with the exception of Mr Sepulveda, Level E employees are now acting up in the role of STL when required.

[48] I accept the evidence of Mr Biggs and Mr Doluner that Mr Sepulveda is still refusing to act as STL. There evidence is that the refusal is not authorised or agreed to by USG Boral and there is no evidence that the refusal is based on a reasonable concern Mr Sepulveda holds about an imminent risk to his health or safety. The refusal is a limitation on the acceptance of work and it is happening.

[49] I am not otherwise satisfied that the STL refusal is happening, or that it is threatening, impending or probable, or that it is being organised.

[50] As I have found that unprotected industrial action by one employee is happening, I must make an order that the action stop and not occur.

The first and second stoppages

[51] The first and second stoppages occurred on two discrete occasions almost two weeks ago. I am not satisfied that the failure to attend for work on those occasions is happening. There is no evidence before me that any current industrial action of this kind is being organised by the CFMMEU.

[52] However, I am satisfied that further industrial action of this kind is probable in the context of the current bargaining environment and in circumstances where there is a live dispute about whether paid union meetings will be provided.

[53] I am satisfied on the evidence that the employee’s failure to attend for work at the nominated shift start time on both 15 and 16 June 2018 was not authorised or agreed to by USG Boral.

[54] There is no evidence, and nor is there any suggestion, that the first and/or second stoppages were based on any reasonable concern about imminent risks to health or safety. I find that they were not.

[55] As I have found that unprotected industrial action of this kind is probable, I must make an order that industrial action stop and not occur.

Conclusion

[56] It is for USG Boral to establish that orders should be made under section 418 against the CFMMEU and the Employees. I am not satisfied that orders must be made against the CFMMEU. However, I am satisfied that orders must be made in relation to the Employees.

[57] USG Boral seeks that any orders operate from today for a period of two months. The CFMMEU objects and submits that if any orders are made, it should be for no more than 24 hours. I consider that 24 hours is insufficient given that there are no circumstances in which industrial action by the Employees at the Port Melbourne factory will be protected until at least the nominal expiry date of the Agreement has passed and a protected action ballot has authorised proposed industrial action with requisite notice given to USG Boral. I will make the orders effective until 31 July 2018. Orders will issue separately to this decision.

COMMISSIONER

Appearances:

L Izzo for USG Boral Building Products Pty Limited

J Maloney for the Construction, Forestry, Maritime, Mining and Energy Union

Hearing details:

2018.

Melbourne:

June 26.

Printed by authority of the Commonwealth Government Printer

<PR608492>

 1   AE416035

 2   USG Boral amended scope, audio recording of hearing on 26 June 2018

 3   Exhibit 1, Statement of Jason Biggs; Audio recording of hearing 26 June 2018

 4   Audio recording of hearing 26 June 2018

 5   Fair Work Act 2009 (Cth), s.417

 6   Audio recording of hearing on 26 June 2018

 7   Audio recording of hearing on 26 June 2018

 8   Exhibit 1, Statement of Jason Biggs

 9   Audio recording of hearing on 26 June 2018

 10   Audio recording of hearing on 26 June 2018

 11   Audio recording of hearing on 26 June 2018

 12   Audio recording of hearing on 26 June 2018

 13   Exhibit 1, Statement of Jason Biggs

 14   Audio recording of hearing on 26 June 2018

 15   Audio recording of hearing on 26 June 2018

 16   Exhibit 1, Statement of Jason Biggs

 17   Exhibit 1, Statement of Jason Biggs

 18   Exhibit 1, Statement of Jason Biggs; Audio recording of hearing on 26 June 2018

 19   Audio recording of hearing on 26 June 2018

 20   Exhibit 1, Statement of Jason Biggs; Audio recording of hearing on 26 June 2018

 21   Exhibit 1, Statement of Jason Biggs

 22   Audio recording of hearing on 26 June 2018

 23   Audio recording of hearing on 26 June 2018