Visy Board Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
[2018] FCA 1799
•20 November 2018
FEDERAL COURT OF AUSTRALIA
Visy Board Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2018] FCA 1799
File number: VID 842 of 2017 Judge: BROMBERG J Date of judgment: 20 November 2018 Catchwords: INDUSTRIAL LAW – admitted contraventions of ss 346 and 417 of the Fair Work Act 2009 (Cth) – making of declarations Legislation: Fair Work Act 2009 (Cth), ss 346, 347(b)(iv), 363, 417, 793 Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (“The Bay Street Case”) [2018] FCA 83
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (“Cardigan St Case”) [2018] FCA 957
Date of hearing: Determined on the papers Registry: Victoria Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 12 Solicitor for the Applicant: PricewaterhouseCoopers Solicitor for the First and Second Respondents: Slater & Gordon Counsel for the Third to Seventy-first Respondents: The Third to the Seventy-first Respondents did not appear ORDERS
VID 842 of 2017 BETWEEN: VISY BOARD PTY LTD (ACN 005 787 913)
Applicant
AND: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AN DKINDRED INDSTRIES UNION (KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS' UNION (AMWU))
First Respondent
MICHAEL BULL
Second Respondent
YLBER ABDULOVSKI (and others named in the Schedule)
Third Respondent
JUDGE:
BROMBERG J
DATE OF ORDER:
20 NOVEMBER 2018
THE COURT DECLARES BY CONSENT THAT:
1.By the conduct of its officers or agents set out in the Agreed Statement of Facts and Admissions and by operation of ss 363(1)(b) and 363(3) of the Fair Work Act 2009 (Cth) (“FW Act”), the First Respondent contravened s 346 of the FW Act when, on 24 July 2017, it organised employees of Applicant employed at 118 Hammond Road, Dandenong (the “Site”) not to perform overtime at the Site because the Applicant engaged in or proposed to engage in – or, alternatively, did not engage in or proposed not to engage in – industrial activity for the purposes of s 347(b)(iv) of the FW Act.
2.The Second Respondent , an officer of the First Respondent acting in that capacity for the purposes of s 363(1)(b) of the FW Act, contravened s 346 of the FW Act when, on 31 July 2017, he organised employees of the Applicant employed at the Site not to attend work at the Site or otherwise perform work that day because the Applicant engaged in or proposed to engage in – or, alternatively, did not engage in or proposed not to engage in – industrial activity for the purposes of s 347(b)(iv) of the FW Act.
3.The Second Respondent, an officer of the First Respondent acting in that capacity for the purposes of s 793 of the FW Act, contravened s 417 of the FW Act when, on 31 July 2017, he organised employees of the Applicant employed at the Site not to attend for work at the Site or otherwise perform work that day.
4.By the conduct of the Second Respondent in declaration 3 above and by operation of s 793 of the FW Act, the First Respondent contravened s 417 of the FW Act when, on 31 July 2017, it organised employees of the Applicant employed at the Site not to attend for work at the Site or otherwise perform work that day.
THE COURT ORDERS BY CONSENT THAT:
1.The proceeding be dismissed as against the First and Second Respondents.
2.There be no order as to costs as against the First and Second Respondents.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMBERG J:
By this proceeding the Applicant (“Visy”) sought declarations that the Respondent (“AMWU”), the Second Respondent (“Mr Bull”) and 69 employee respondents (“Employee Respondents”) contravened particular provisions of the Fair Work Act 2009 (Cth) (“FW Act”), orders imposing pecuniary penalties for those contraventions, and orders that those pecuniary penalties be paid to Visy together with an award of compensation and interest.
On 26 October 2017 the proceeding was discontinued as against one of the Employee Respondents.
On 9 November 2018, Visy, the AMWU and Mr Bull filed proposed consent declarations and orders by consent supported by a Statement of Agreed Facts and Admissions (“SAFA”).
The SAFA, which is attached as “Annexure 1” to these reasons, identifies the facts relevant to the contraventions admitted by the AMWU and Mr Bull for the purpose of this proceeding.
Broadly stated, the contraventions admitted by the AMWU and Mr Bull relate to their organisation of employees of Visy employed at 118 Hammond Road, Dandenong (the “Site”):
(1)not to perform rostered overtime on 24 July 2017 (the “overtime ban”); and
(2)not to attend for work at the Site or otherwise perform work on 31 July 2017 (the “strike”),
as a result of Visy’s refusal to accede to a request made by officers or agents of the AMWU for Visy to “soften” its revised Drug and Alcohol Policy.
By the SAFA, the organisation of the strike is admitted by the AMWU and Mr Bull to constitute a contravention of s 417 of the FW Act.
The organisation of the overtime ban and the strike is further admitted by the AMWU and Mr Bull to constitute a contravention of the adverse action protections in s 346 of the FW Act. The contraventions alleged by Visy engage the definition of industrial activity in s 347(b)(iv) of the FW Act. That is, the refusal by Visy to “soften” a revised Drug and Alcohol Policy is said to constitute Visy engaging in industrial activity by not complying with a lawful request made by, or requirement of, an industrial association (“Visy’s industrial activity”).
Left to my own devices I would not find that the conduct relied upon as Visy’s industrial activity is capable of constituting a breach of s 346 of the FW Act by reason of s 347(b)(iv) of the FW Act. However, as I discuss in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (“The Bay Street Case”) [2018] FCA 83 at [21]-[72], there is contrary authority in support of the interpretation of s 347(b)(iv) of the FW Act upon which Visy’s allegations depend, that I do not regard as plainly wrong.
As a consequence, and on the basis of the facts set out in the SAFA, I am satisfied that:
(1)by the conduct of its officers or agents and by the operation of ss 363(1)(b) and 363(3) of the FW Act, the AMWU contravened s 346 of the FW Act, when it organised the overtime ban because of Visy’s industrial activity;
(2)Mr Bull, an officer of the AMWU acting in that capacity for the purposes of s 363(1)(b) of the FW Act, contravened s 346 of the FW Act when he organised the strike because of Visy’s industrial activity;
(3)Mr Bull, an officer of the AMWU acting in that capacity for the purposes of s 793 of the FW Act, contravened s 417 of the FW Act when he organised the strike; and
(4)by the conduct of Mr Bull described at (3) above and by operation of s 793 of the FW Act, the AMWU also contravened s 417 of the FW Act.
I consider that the proposed declarations are appropriate to formally record the basis upon which the proceeding has been resolved as against the AMWU and Mr Bull and I will make the declarations sought by Visy, the AMWU and Mr Bull.
No application was made for the Court to make orders imposing pecuniary penalties on the AMWU or Mr Bull for the declared contraventions. Nor have the parties, in the SAFA or otherwise, put before the Court material that would permit the Court to make an assessment, in accordance with the established principles recently outlined in my judgment in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (“Cardigan St Case”) [2018] FCA 957, as to whether there is a proper basis to impose a penalty. In these circumstances, I do not consider the imposition of pecuniary penalties to be appropriate.
The consent orders sought by the parties otherwise dismiss the proceeding against the AMWU and Mr Bull with no order as to costs. I will make those orders.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate:
Dated: 20 November 2018
ANNEXURE 1
STATEMENT OF AGREED FACTS AND ADMISSIONS
A. INTRODUCTION
1.This Statement of Agreed Facts and Admissions (SAFA) is made pursuant to s. 191 of the Evidence Act 1995 (Cth) jointly by:
(a) the Applicant, Visy Board Pty Ltd (Visy);
(b)the first Respondent, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturing Workers’ Union) (AMWU); and
(c)the second Respondent, Michael Bull (Mr Bull),
in support of a grant of declaratory relief that the parties jointly propose in this matter.
2.The SAFA relates to Proceedings VID842 of 2017 commenced by Visy against the AMWU, Mr Bull and 71 respondents (Employee Respondents) on 3 August 2017 (Proceedings). By the Proceedings, Visy has sought declarations that the AMWU, Mr Bull and the Employee Respondents contravened particular provisions of the Fair Work Act 2009 (Cth) (FW Act), orders that it pay pecuniary penalties to Visy and compensation.
3.This SAFA identifies the facts relevant to the contraventions admitted by the AMWU and Mr Bull for the purpose of the Proceedings. The facts agreed to, and the admissions made, are agreed to and made solely for the purpose of the Proceedings and do not constitute any admission outside of the Proceedings.
4. For the purposes of the Proceedings only:
(a) the AMWU admits that it contravened ss. 346 and 417 of the FW Act; and
(b)Mr Bull admits that he contravened ss. 346 and 417 of the FW Act,
as set out in Section D of this SAFA.
5.The parties have reached agreement as to the terms of relief to be sought from the Court to resolve the Proceedings. The parties acknowledge that it is ultimately for the Court to determine whether the AMWU and Mr Bull contravened a civil penalty provision.
6.The parties respectfully request that the Court make orders in the form set out in the accompanying draft orders on the basis of the specific admissions in this SAFA.
B. PARTIES AND BACKGROUND
B.1 Parties
7. Visy was, at all material times:
(a) a body corporate able to sue and be sued; and
(b)in the business of manufacturing corrugated cardboard products for sale to third party customers at a number of sites in Australia, including 118 Hammond Road, Dandenong (Site).
8. The AMWU was, at all material times:
(a)an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Cth) (RO Act);
(b) by reason of s. 27 of the RO Act:
(i) a body corporate able to sue and be sued;
(ii) a body corporate for the purposes of s. 793 of the FW Act; and
(iii) a person for the purposes of Part 3-1 of the FW Act; and
(c)by reason of being so registered, an industrial association for the purposes of ss. 12 and 342 of the FW Act.
9. Mr Bull was, at all material times:
(a) employed by the AMWU;
(b) an official of the AMWU within the meaning of s. 12 of the FW Act;
(c)an officer or agent of the AMWU within the meaning of each of ss. 12, 363 and 793 of the FW Act; and
(d)the AMWU representative who is generally responsible for the AMWU members at the Site.
B.2 The Enterprise Agreement
10.The Site is covered by the Visy (Smithfield, Warwick Farm, Dandenong, O’Connor) Enterprise Agreement 2016 (Enterprise Agreement).
11. The Enterprise Agreement:
(a) is an enterprise agreement made pursuant to Part 2-4 of the FW Act;
(b) commenced to operate on 17 March 2017;
(c) has a nominal expiry date of 30 September 2019; and
(d)at all material times, applied to and covered both Visy and the AMWU pursuant to ss. 52 and 53 of the FW Act respectively.
B.3 The introduction of the revised Drug and Alcohol Policy
12.On or around 13 July 2017, Visy decided to implement a revised Drug and Alcohol policy at the Site.
13.In the period from 13 July 2017 to 24 July 2017, representations were made to Visy by employees of Visy employed at the Site requesting that it “soften” the revised Drug and Alcohol policy. Visy refused to accede to those requests.
C. FACTS RELEVANT TO LIABILITY
C.1 Overtime Ban
14.On or about Monday, 24 July 2017, in response to Visy’s refusal to soften the revised Drug and Alcohol policy, the AMWU, through its officers or agents, directed, authorised and/or organised for Visy employees who were allocated to work overtime on the evening shift at the Site on 24 July 2017 to not work that overtime, and to not work allocated overtime until further notice.
15. Subsequent to these actions by the AMWU:
(a)28 Visy employees failed to perform their allocated overtime commencing at 12:00am on 25 July 2017;
(b)13 Visy employees failed to perform their allocated overtime commencing at 1:30pm on 25 July 2017;
(c)29 Visy employees failed to perform their allocated overtime commencing at 12:00am on 26 July 2017; and
(d)20 Visy employees failed to perform their allocated overtime commencing at 1:30pm on 26 July 2017.
C.2 The strike
16.On or before 31 July 2017, Mr Bull organised for employees of Visy employed at the Site to not attend for work at the Site or to not otherwise perform their rostered work shifts on 31 July 2017.
17.On 31 July 2017, employees of Visy employed at the Site failed to attend for work at the Site or did not otherwise perform their rostered work shifts.
D. FORMAL ADMISSIONS
18.By reason of the matters set out above, the AMWU makes the following admissions for the purpose of the Proceedings:
(a) by operation of ss. 363(1)(b) and 363(3) of the FW Act, the AMWU contravened s. 346 of the FW Act as identified in paragraph 20 hereof; and
(b) the AMWU contravened s. 417 of the FW Act as identified in paragraph 23 hereof.
19.By reason of the matters set out above, Mr Bull makes the following admissions for the purpose of the Proceedings:
(a) Mr Bull contravened s. 346 of the FW Act as identified in paragraph 21 hereof; and
(b) Mr Bull contravened s. 417 of the FW Act as identified in paragraph 22 hereof.
20.The conduct of the officers or agents of the AMWU in organising Visy employees to not perform overtime at the site on 24 July 2017 as described in paragraph 14 constituted industrial action within the meaning of s. 19 of the FW Act and was adverse action within the meaning of s. 342 of the FW Act. The industrial action was taken because Visy, by refusing to accede to requests by the officers or agents of the AMWU to amend or revoke the proposed revised drug and alcohol policy, was engaging in or proposing to engage in—or, alternatively did not engage in or proposed not to engage in—industrial activity within the meaning of s. 347(b)(iv) of the FW Act.
21.Mr Bull, an officer of the AMWU acting in that capacity for the purposes of s. 363(1)(b) of the FW Act, admits that he contravened s. 346 of that Act when, on or before 31 July 2017 he took adverse action within the meaning of s. 342 of the FW Act against Visy by organising for employees of Visy employed at the Site to not attend for work at the Site, or to not otherwise perform work that day; and did so because Visy, by refusing to accede to requests by the officers or agents of the AMWU to amend or revoke the proposed revised drug and alcohol policy, was engaging, proposing to engage or refusing to engage, in industrial activity within the meaning of s. 347(b)(iv) of the FW Act.
22.Mr Bull, an officer of the AMWU acting in that capacity for the purposes of s. 793(1) of the FW Act, contravened s. 417 of that Act when, on or before 31 July 2017, he organised for employees of Visy employed at the Site to not attend for work at the Site or to otherwise not perform work on 31 July 2017. The conduct of Mr Bull in organising for employees of Visy employed at the site to not attend for work at the site or to otherwise not perform work on 31 July 2017 constituted the organisation of industrial action within the meaning of s. 19 of the FW Act.
23.By the conduct of Mr Bull described in paragraph 14 and by operation of section 793(1) of the FW Act, the AMWU contravened section 417 of that Act when, on or before 31 July 2017, it organised employees of Visy employed at the Site to not attend for work at the Site or to otherwise not perform work on 31 July 2017. The organising for employees of Visy employed at the site to not attend for work at the site or to otherwise not perform work on 31 July 2017 constituted the organisation of industrial action within the meaning of s.19 of the FW Act.
SCHEDULE OF PARTIES
VID 842 of 2017 Respondents
Fourth Respondent:
SADI ALIU
Fifth Respondent:
DITURIM AMETI
Sixth Respondent:
DANUT ASTILEAN
Seventh Respondent:
DENGIS BAFTIROVSKI
Eighth Respondent:
RODERICK BALDASSARINI
Ninth Respondent:
ALEKSANDAR BECVARDI
Tenth Respondent:
SIV CHANG
Eleventh Respondent:
JIAN CHEN
Twelfth Respondent:
GLYNN COOK
Thirteenth Respondent:
ROHAN CHRISFIELD
Fourteenth Respondent:
FAJRIM DALIPOVSKI
Fifteenth Respondent:
NATHAN DALL
Sixteenth Respondent:
ROBERTO DI BLASIO
Seventeenth Respondent:
AYHAN DOGAN
Eighteenth Respondent:
GAVIN DOWNES
Nineteenth Respondent:
CRAIG DUNMORE
Twentieth Respondent:
SANATH EKANAYAKE
Twenty-first Respondent
SIMON ELKHOURI
Twenty-second Respondent
TAGA ETEUATI
Twenty-third Respondent
SAM FATO
Twenty-fourth Respondent
PAUL FFELAN
Twenty-fifth Respondent
VICTOR FONSECA
Twenty-sixth Respondent
JAMES HADDOW
Twenty-seventh Respondent
AHMAD HAIDER
Twenty-eighth Respondent
SAJAT HAJREDIN
Twenty-ninth Respondent
WADE HEXTER
Thirtieth Respondent
LIN HUANG
Thirty-first Respondent
CARL HUTCHINGS
Thirty-second Respondent
BLERIM JONUZOVSKI
Thirty-third Respondent
KERIM KERIMOVSKI
Thirty-fourth Respondent
DEAN KILLORAN
Thirty-fifth Respondent
DANIEL KISHINEVSKI
Thirty-sixth Respondent
MILIVOJ KRMPOTIC
Thirty-seventh Respondent
IGNAC LASANC
Thirty-eighth Respondent
DANIELA LAZAR
Thirty-ninth Respondent
PAUL LEE
Fortieth Respondent
MATTHEW LEVY
Forty-first Respondent
VIOREL LOGA
Forty-second Respondent
ASLLAN LUMANI
Forty-third Respondent
WAREN LUMANOVSKI
Forty-fourth Respondent
DAVID MANNU
Forty-fifth Respondent
DUSAN MARKOVIC
Forty-sixth Respondent
CALEB MCELHINNEY
Forty-seventh Respondent
JOHN MILIONIS
Forty-eighth Respondent
SOE WIN MYINT
Forty-ninth Respondent
ALAN NGO
Fiftieth Respondent
MUOI NGUYEN
Fifty-first Respondent
GREGORY OLSEN
Fifty-second Respondent
FERENC PALFI
Fifty-third Respondent
ATTILA PALFI
Fifty-fourth Respondent
JAYSIN SAMNEOUM PORCHEA
Fifty-fifth Respondent
MARIA PORUMB
Fifty-sixth Respondent
VASILE PORUMB
Fifty-seventh Respondent
MARCUS RAGUSA
Fifty-eighth Respondent
GLENN READ
Fifty-ninth Respondent
GEORGE RIWAKA
Sixtieth Respondent
VIKTOR RIZMANI
Sixty-first Respondent
SELMAN SELMANOV
Sixty-second Respondent
SAGANDEEP SINGH
Sixty-third Respondent
FRANK SPINELLI
Sixty-fourth Respondent
BENJAMIN SWEET
Sixty-fifth Respondent
KIM TAN
Sixty-sixth Respondent
THACH TRAN
Sixty-seventh Respondent
JUSTIN VARGA
Sixty-eighth Respondent
GINO VILLELLA
Sixty-ninth Respondent
MICHAEL VOLGYI
Seventieth Respondent
MILAN VUKELIC
Seventy-first Respondent
ALAN WHITE
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