Visy Board Pty Ltd (Visy) v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
[2017] FWC 4003
•31 JULY 2017
| [2017] FWC 4003 |
| 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 (Visy)
v
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
(C2017/4107)
| COMMISSIONER MCKINNON | MELBOURNE, 31 JULY 2017 |
Alleged industrial action at Visy Board Pty Ltd, Dandenong site – unprotected industrial action – order made under s.418.
On the morning of Wednesday 26 July 2017, Visy Board Pty Ltd 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. Visy is the employer concerned and is directly affected by the industrial action. The order sought was directed at the AMWU, officeholders and delegates of that union, and employees of Visy engaged at the company’s Dandenong site in Victoria (the Site).
On 26 July 2017, after considering the evidence and the submissions of the parties, I made an interim order under section 420 of the Act that the AMWU, its office holders and those of its delegates employed by Visy at the Site stop, not engage in and not organise industrial action at the Site (the Interim Order).[1] Employees were not covered by the Interim Order after Visy conceded they had not been served with the originating application.
On 31July 2017, the matter was listed for further hearing to determine the application under section 418. Visy was represented by Price Waterhouse Coopers after permission was granted under section 596. The AMWU was represented by Mr Terzic, who appeared on behalf in the AMWU (but not its members) in the proceedings. None of the affected employees attended the Commission or were represented by any party.
The AMWU opposed the application but made no substantive submissions. This was despite having sought an opportunity last week to obtain proper instructions so that it could contest any final orders that may be made. Visy advised that, except in relation to those on sick or annual leave, affected employees had now been served with the application and draft orders as well as a copy of the Interim Order.
Mr Veselin Filipendin, Operations Manager and Mr Ian Harmer, General Manager, Industrial Relations Australia & New Zealand, gave sworn evidence for Visy and were the only witnesses in the proceedings.[2] The evidence introduced by Visy was not contested. The AMWU was given the opportunity to cross‑examine both Mr Filipendin and Mr Harmer, and chose not to. To the extent that the evidence is hearsay, I have approached it with some caution.
Background
Employees at the Site are covered by the Visy (Smithfield, Warwick Farm, Dandenong, O’Connor) Enterprise Agreement 2016 (the Agreement). The Agreement has a nominal expiry date of 30 September 2019.
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.
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. Subsequent meetings with employees confirmed that the new policy would operate from 21 August 2017.
On 22 July 2017, a delegate of the AMWU, Mr Fahim Ahmadiyar, expressed concerns to Mr Filipendin about the new policy.
At approximately 1.00pm on 24 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 Ahmadiyar and Mr Ylber “Ben” Abdulovski (the Delegates).
Between 25 July 2017 and 26 July 2017, a number of employees did not attend for rostered, and agreed, overtime.
At 12.01am on 27 July 2017, the Interim Order came into effect and work resumed normally.
On 28 July 2017, the Delegates were stood aside pending an investigation into non‑performance of rostered overtime. The following day, Visy became aware of a “mass meeting” being organised for 30 July 2017 at Dandenong Park.
On 30 July 2017, Mr Harmer spoke to Ms Katrina Ford, an AMWU industrial officer, about the Delegates. Ms Ford confirmed that a mass meeting had been held that day. According to Mr Harmer, Ms Ford also said, in words to the effect, “Do you appreciate what will occur if you take a position on the Delegates?” Mr Harmer responded “Well, we can only assume from that that there may be action taken if and when Visy was to make a decision in respect to those two delegates.”
Employees rostered on for the morning shift this morning were due to commence work at 5.00am. At 5.07am Visy became aware that a union representative, Mr Michael Bull, was at the Site’s Union Road gate entrance advising that the Delegates were stood down and there would be a meeting at 5.45am. At approximately 6.00am, a meeting of employees occurred at the Site’s Greens Road gate. According to advice given to Mr Filipendin from a person present at the meeting, employees voted to “continue staying out”.[3]
As at 6.31am this morning, approximately four production lines were running at the Site, and a further “six or seven” lines were scheduled to run, but were not running.
Relevant law
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.”
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, he 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.
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.
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.[4]
Findings of fact
Mr Filipendin gave evidence that at 6.08am this morning, he was advised that “about 20 or 30 people are gathering at the Greens Road entrance.” He went on to describe the morning’s attendance record as follows: “about 30 people in attendance today, five on annual leave, two called in sick and 25 absent without providing any reason or any notice.” I accept the evidence of Mr Filipendin, who appeared to give evidence to the best of his knowledge while making appropriate concessions.
Exhibit V6 was tendered in the proceedings as a “list of the employees that are both offsite, on site and on approved leave.” The list was tendered in response to a question from the Commission about the employees “not currently attending for work.” The document shows 36 employees listed as “offsite”, 28 employees “onsite”, 5 employees on “planned leave” and 3 employees on “sick leave”.
The evidence supports a finding that there is industrial action at the Site in the form of 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 I so find.
To the extent that the refusal to work includes a refusal to work rostered overtime, I find that it is a ban, limitation or restriction on the performance of work by employees.
There is no evidence that industrial action at the Site is either authorised or agreed to by Visy. The very fact that Visy seeks orders to stop the action, and to prevent further action, supports a finding to the contrary. I am satisfied that the action is not authorised or agreed to by Visy.
There is no evidence, and it was not suggested either by the AMWU or any other person in the proceedings, that the action is by employees based on reasonable concerns about imminent risks to their health or safety. I am not satisfied that the action is of such a kind.
The evidence supports a finding that the action is by one or more employees at the Site. Mr Filipendin’s evidence was concerned with activities at the Site relating to “the employees”. Exhibit V6 identifies individual employees including with their “employee number”. I find that the industrial action is by one or more employees at the Site.
I am satisfied that the industrial action is not, and would not be, protected industrial action in that it has arisen during the life of the Agreement, which was approved by the Commission on 10 March 2017 and has a nominal expiry date of 30 September 2019.
At the time of the hearing this morning, the evidence was that a number of employees had withdrawn their labour and were outside the Site’s front gate.[5] I am satisfied that industrial action by one or more employees is happening.
I am also satisfied that industrial action by one or more employees is threatened, impending or probable. The next shift was due to commence at 4.30pm. There remains a “live dispute” over the position in relation to the Delegates.[6] At the time of hearing, the Delegates had not returned to work, and the AMWU was seeking resolution of the issue. The evidence was clear that a number of employees are involved in the industrial action and that the industrial action is likely to continue until the AMWU is satisfied that the dispute over the Delegates is resolved.[7]
I note that no employee attended this morning’s hearing. The AMWU conceded that employees had been served with the application giving rise to these proceedings and inferred that they had each made the decision not to say anything about it. Mr Filipendin gave evidence that the majority of employees were personally served with the application and the Interim Order, its terms explained and a copy of the application and Interim Order displayed on both the union noticeboard at the Site and the noticeboard in the long hall.[8]
The AMWU chose not to lead any evidence in the proceedings. I asked the AMWU if it had had the opportunity to get instructions. In response, the AMWU agreed that it had, but as to the application being pressed, said “we have really no comment on that.”[9]
It is open to the Commission to draw an adverse inference from an unexplained failure to call evidence.[10] The AMWU was given additional time in this matter to obtain instructions so that it could properly contest the matter. It chose not to do so. It chose not to call Ms Ford, Mr Bull or the Delegates, each of whom are likely to have had direct knowledge of the matters in dispute. I note that Mr Bull, who attended the initial hearing of this matter, did not attend today’s hearing.
In the circumstances, I consider it appropriate to draw an adverse inference, namely that the testimony of Ms Ford, Mr Bull and the Delegates would not have assisted the position of the AMWU.
It remains to Visy to establish that an order should be made under section 418 against the AMWU. I am satisfied that it has done so, and that the AMWU is organising the industrial action. Of particular relevance is evidence of the conversation between Mr Harmer and Ms Ford, and the fact that the industrial action is directly related to the standing aside of the Delegates by Visy.
Accordingly I must order that the industrial action stop, not occur and not be organised under section 418 of the Act.
The Order made
Visy sought that the Order operate from today until 31 August 2017. The AMWU made no submissions on the issue. I note that the AMWU has sought discussions with Visy over both the drug and alcohol policy and the position in relation to the Delegates and there is some prospect that the matter will be resolved in coming weeks. I will make the Order effective until 31 August 2017 to allow those discussions to take place.
Liberty will be granted to apply generally.
COMMISSIONER
Appearances:
A Farr for the Applicant
B Terzic for the Respondent
Hearing details:
2017
Melbourne
July 31
[1] PR594899, 26 July 2017
[2] Exhibits V1, V2, V3, V4 and V5.
[3] Transcript of 31 July 2017 at PN 38
[4] Section 417 of the Act
[5] Exhibit V6; Transcript of 31 July 2017, at PN38; PN91; PN59
[6] Transcript of 31 July 2017, at PN24; PN91
[7] Transcript of 31 July 2017 at PN 38
[8] Transcript of 31 July 2017, at PN41-49
[9] Transcript of 31 July 2017, at PN28
[10] Jones v Dunkel (1959) 101 CLR 298. See also Maritime Union of Australia v Patrick Stevedores Holdings Pty Limited [2014] FWCFB 657
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