Visy Board Pty Ltd v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

[2017] FWC 3947

[2017] FWC 3947

FAIR WORK COMMISSION

DECISION

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

Visy Board Pty Ltd
v
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
(C2017/4107)

COMMISSIONER MCKINNON MELBOURNE, 26 JULY 2017

Alleged industrial action at Visy Board Pty Ltd, Dandenong site – unprotected industrial action – interim order made under s.420.

[1] On the morning of Wednesday 26 July 2017, Visy made application 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 the AMWU, officeholders and delegates of that union, and employees of Visy who are members of, or eligible to be members of, the AMWU and who are engaged at the company’s Dandenong site in Victoria.

[2] The matter was listed for hearing on Wednesday 26 July 2017. Visy was represented by Price Waterhouse Coopers after permission to appear was granted under section 596. The AMWU was represented by Mr Terzic. Employees potentially affected by the application were not represented. To the extent that they might have been represented by the AMWU, Mr Terzic expressly advised that it did not appear on their behalf in the proceedings. Visy conceded that it had not served employees with its application or draft orders and later indicated that it did not seek orders against them. Mr Veselin Filipendin, Operations Manager, gave evidence for Visy. 1 No other evidence was led.

[3] The AMWU opposed the application and otherwise chose not to make any submissions in the matter. Describing its approach as to “effectively run dead”, it sought further proceedings “next week, with a properly instructed union” so that the union could contest the final orders. Visy conceded that it had not served employees with its application or draft orders and suggested that “interim orders” might be appropriate in the circumstances.

Background

[4] Affected employees at Visy’s Dandenong site are covered by the Visy (Smithfield, Warwick Farm, Dandenong, O’Connor) Enterprise Agreement 2016 (the Agreement).

[5] According to Mr Filipendin, the Dandenong site operates 20 to 22 hours a day, 2 shifts for 5 days a week on weekdays and one shift on Saturdays. Maintenance work is done on Sundays. The day shift is from 6.00am to 1.30pm. The afternoon shift is from 4.30pm to midnight. Rostered hours are usually notified to employees 3 days in advance for the following week. On 20 July 2017, the roster confirmed that employees would be required to work 10 hours overtime in the week commencing 24 July 2017. All employees on the roster agreed to the required hours.

[6] Visy has been consulting with employees through its OHS committee about a new drug and alcohol policy since 2016. On 12 July 2017, the OHS committee formally endorsed the new policy.

[7] On20 July 2017, meetings were held with day shift and afternoon shift employees where employees were advised that the new policy would operate from 21 August 2017.

[8] On22 July 2017, a delegate of the AMWU, Mr Fahim Ahmadiyar, expressed concerns to Mr Filipendin about the new policy.

[9] At approximately 1.00pm on24 July 2017, Mr Filipendin says he became aware of a planned “overtime ban”, but was unable to confirm the position in discussions with AMWU delegates Mr Fahim Ahmadiyar and Mr Ylber “Ben” Abdulovski.

[10] At approximately 7.45am on 25 July 2017, Mr Filipendin attended work and discovered that approximately 40 employees rostered to work on 11 of 12 production lines had not worked rostered overtime the previous night.

[11] On 25 July 2017, 29 employees ceased work at the completion of day shift ordinary hours and did not work rostered overtime. That evening, further discussions occurred between Visy and the two union delegates about the new policy. When Visy asked if employees would work rostered overtime, the two delegates advised that it was “up to the people”. At the end of the afternoon shift, approximately 30 employees ceased work and did not work rostered overtime scheduled to commence from 12.01am on 26 July 2017.

Relevant law

[12] Section 418 of the Act requires the Commission to make an order that industrial action stop, not occur or not be organised if satisfied that the relevant statutory conditions are met.

[13] Section 420(1) of the Act provides that, as far as practicable, an application under section 418 must be determined within 2 days after the application is made. If the Commission is unable to determine the application within that period, it must make an interim order that the industrial action to which the application relates stop, not occur or not be organised.

[14] In CPSU v Fredon Industries Pty Ltd t/a Fredon 2, a Full Bench of the Commission considered the making of interim orders under section 420, as follows:

“[13] The circumstances in which the duty in s.420(2) to make interim orders was required to be discharged was considered by a Full Bench in McKewin v Lend Lease Project Management & Construction (Australia) Pty Ltd. 3Three relevant propositions may be gleaned from that decision:

(1) A conclusion by the Commission that it is unable to determine an application within the two-day period specified in s.420(1) is a condition precedent for the making of an interim order under s.420(2). “Absent such a conclusion, the Commission is under no duty, and has no power, to make an interim order.”

(2) The requirements of procedural fairness apply to the making of an interim order under s.420(2), although depending on the circumstances the requirement to hear affected parties may be circumscribed by the time constraints imposed by s.420(1) and (2).

(3) A failure to list an application for s.418 orders for final hearing expeditiously after an interim order has been made under s.420(2) may make it difficult to conclude that the Commission’s obligation in s.420(1) has been complied with.

[14] To these we would add a fourth proposition: the effect of s.420(3) is that the Commission must, prior to making an interim order under s.420(2), give consideration to whether the making of the interim order would be contrary to the public interest. A failure to consider the public interest in this way may result in an interim order being made contrary to the mandatory requirement in s.420(3).”

[15] I respectfully adopt this approach in reaching this decision.

Consideration

[16] On the materials before the Commission, I find that I am unable to fairly determine the application within the two-day period specified in s.420(1). Affected employees have not been served, and despite Visy’s assertion that its orders were only sought against the AMWU, its application and draft orders also cover employees who are, or who are eligible to be, members of the AMWU. The AMWU has sought a further opportunity to be heard once it is “properly instructed”. Limited evidence has been produced by Visy in the time since application was made.

[17] I accept that the time constraints imposed by section 420 may sometimes narrow the obligation to afford procedural fairness. However, in this instance I am satisfied that procedural fairness is likely to be denied if the matter is determined before employees have been served with the application, in circumstances where the AMWU does not appear to have obtained adequate instructions from its delegates or affected members.

[18] That the statutory scheme requires the Commission to deal with unprotected industrial action expeditiously does not displace the obligation to afford procedural fairness entirely. In the circumstances, I am satisfied that it would not be contrary to the public interest to make an interim order under section 420 pending determination of the substantive application.

Orders made

[19] I will issue an interim order under section 420(2) of the Act.

[20] The matter will be listed for hearing at 10.00am on Monday 31 July 2017.

COMMISSIONER

Appearances:

A Farr for the Applicant

B Terzic for the Respondent

Hearing details:

2017

Melbourne

July 26

 1   Exhibits V1 and V2.

 2   [2016] FWCFB 2744

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