Yusen Logistics (Australia) Pty Ltd v National Union of Workers

[2015] FWC 2933

[2015] FWC 2933

The attached document replaces the document previously issued with the above code on 8 May 2015.

The amendments are as follows:

1. By deleting the date “28 April 2014” appearing in paragraph [8] and inserting “28 April 2015”.

2. By deleting the date “12 February 2012” appearing in paragraph [11] and inserting “12 February 2015”.

Lucinda Kendall-Dryden

Associate to Senior Deputy President Acton

Dated 12 May 2015

[2015] FWC 2933

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.418—Industrial action

Yusen Logistics (Australia) Pty Ltd
v
National Union of Workers
(C2015/2608 and C2015/3705)

SENIOR DEPUTY PRESIDENT ACTON MELBOURNE, 8 MAY 2015

Alleged industrial action at Yusen Logistics (Australia) Pty Ltd, Tullamarine site - notice of employee claim action - threatened, impending or probable industrial action - group of employees not specified in protected action ballot order - not protected industrial action.

[1] On 28 April 2015 I made an order 1 under s.418 of the Fair Work Act 2009 (Cth) (FW Act). The s.418 order binds Yusen Logistics (Australia) Pty Ltd (Yusen) and employees of Yusen who are members of the National Union of Workers (NUW) and who are employed at Yusen’s freight forwarding facility at 32 Global Drive, Tullamarine in the State of Victoria and who are covered by the Road Transport and Distribution Award 2010.2

[2] Section 418 of the FW Act relevantly 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.

(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.”

[3] The s.418 order was made on the basis of applications 3 made by Yusen and on the Fair Work Commission’s own initiative.

[4] On 24 April 2015, the Victorian Branch Secretary of the NUW gave the following notice to Yusen pursuant to s.414 of the FW Act:

“Fair Work Act 2009

Notice by Bargaining Representative of Employees of Intention to
take Employee Claim Action (s.414)

TO: Yusen Logistics (Australia) Pty Ltd (‘Employer’)

41-51 Monash Drive South Dandenong VIC 3164
32 Global Drive Tullamarine VIC 3034
Colemans Road Dandenong South VIC 3164

The National Union of Workers (NUW) as a bargaining representative of employees who will be covered by a proposed enterprise agreement in relation to the Employer, hereby gives notice of the intention of the NUW, its officers and employees, and members of the NUW employed by the Employer, to take the following employee claim action:

Nature of intended industrial action:

Stoppage of work of 24 hours duration

The location of the intended industrial action:

41-51 Monash Drive, South Dandenong VIC 3164
32 Global Drive, Tullamarine VIC 3034
Colemans Road, Dandenong South VIC 3164

Date on which industrial action will begin:

30 April 2015

Signed:

[signed]

_______________________ Dated: 24 April 2015
Gary Maas
Victorian Branch Secretary”

[5] Hereinafter I refer to the above locations as respectively the South Dandenong site, Tullamarine site and Colemans Road site.

[6] Yusen claimed any industrial action at the Tullamarine site would not be protected industrial action and sought a s.418 order in respect of it.

[7] The NUW opposed the s.418 order.

[8] It appeared to me on 28 April 2015, from the s.414 notice of 24 April 2015, that industrial action by employees of Yusen employed at the Tullamarine site was threatened, impending or probable.

[9] It also appeared to me that such industrial action would not be protected industrial action.

[10] For “employee claim action” to be protected industrial action, 4 the industrial action must, amongst other things, be engaged in by “an employee who is included in a group or groups of employees specified in a protected action ballot order for the industrial action”.5

[11] The protected action ballot order on which the NUW relied in this matter was one made by the Fair Work Commission (FWC) on 12 February 2015 in National Union of Workers v Yusen Logistics (Australia) Pty Ltd. 6

[12] That protected action ballot order provided as follows:

“1. PROTECTED ACTION BALLOT TO BE HELD

The National Union of Workers is to hold a protected action ballot of employees of Yusen Logistics (Australia) Pty Ltd described in clause 3 of this order.

2. NAME OF PERSON AUTHORISED TO CONDUCT THE BALLOT

The ballot is to be conducted by the Australian Electoral Commission.

3. GROUP OR GROUPS OF EMPLOYEES TO BE BALLOTED

In accordance with s.437(5) of the Act, the employees to be balloted are those who will be covered by the proposed enterprise agreement and are represented by the bargaining representative who is the applicant for this protected action ballot order.

4. DATE BY WHICH BALLOT CLOSES

The date by which voting in the protected action ballot is to close is no later than 20 working days from the date of this order.

5. QUESTIONS

The question(s) to be put to voters in the ballot are:

In support of reaching an Enterprise Agreement with Yusen Logistics (Australia) Pty Ltd do you authorise protected industrial action against your employer, separately, concurrently and/or consecutively, in the form of:

QUESTION 1

An unlimited number of stoppages of work of 4 hours duration?

Yes [ ]     No  [ ]

QUESTION 2

An unlimited number of stoppages of work of 24 hour duration?

Yes [ ]     No  [ ]

[13] At clause 5 of the protected action ballot order were listed questions covering various forms of industrial action, only the first two of which I have set out above.

[14] The application for the protected action ballot order stated the employer who will be covered by the proposed agreement as:

“Name: Yusen Logistics (Australia) Pty Ltd

Address: 41-51 Monash Drive

Dandenong South State: VIC Postcode: 3164”

[15] The application for the protected action ballot order also stated the group or groups of employees to be balloted were “[t]hose employees of Yusen Logistics (Australia) Pty Ltd who are members of the National Union of Workers and who would be subject to the proposed enterprise agreement.”

[16] The application pointed out there is an existing enterprise agreement, entitled the Yusen Logistics (Australia) Pty Ltd and National Union of Workers Enterprise Agreement 2011-2014, but did not indicate that the group or groups of employees to be balloted included those covered by that existing enterprise agreement. I make no finding as to whether the employees of Yusen employed at the Tullamarine site are covered by that existing enterprise agreement.

[17] The application further stated that the NUW had served a log of claims on Yusen on or about 15 August 2014, containing claims sought to be included in an enterprise agreement. The application went on to state that since the log of claims had been served, the parties had formally met on no less than four occasions for the purpose of negotiating the terms of the proposed enterprise agreement and during the course of those meetings the NUW had changed its bargaining position, including removing or amending claims.

[18] The log of claims does not appear to have been before the Commissioner who made the protected action ballot order.

[19] The statutory declaration accompanying the application provided no further information of present relevance.

[20] Before me, Ms Lisa Lawson, the National Human Resources, Safety and Environment Manager for Yusen, gave uncontradicted evidence that at the first meeting between the NUW and Yusen on the proposed enterprise agreement, the NUW pointed out they wanted the employees employed at the Tullamarine site covered by the proposed enterprise agreement. However, Yusen told the NUW at that meeting that they rejected such coverage.

[21] There was no evidence before me that the matter of Yusen employees employed at the Tullamarine site being covered by the proposed enterprise agreement was raised at any subsequent meetings between the NUW and Yusen on the proposed enterprise agreement.

[22] It was not evident from the terms of the protected action ballot order, the application for that order and the statutory declaration accompanying the application, or the other evidence before me, that employees of Yusen employed at the Tullamarine site are included in a group or groups of employees specified in the relevant protected action ballot order.

[23] Accordingly, it appeared to me that the industrial action by employees of Yusen employed at the Tullamarine site which was specified in the s.414 notice given to Yusen on 24 April 2015 would not be employee claim action and, therefore, would not be protected industrial action.

[24] Since it appeared to me that industrial action by employees of Yusen employed at the Tullamarine site that would not be protected industrial action was threatened, impending or probable, I was required by s.418 of the FW Act to make an order that the industrial action not occur for a period.

[25] I specified the period 10.00am on 29 April 2015 to 10.00am on 18 May 2015 in the s.418 order. Yusen had sought 60 days from the date of the order as the period for the s.418 order, but I considered a shorter period was warranted having regard to the minimum period likely to be required before employee claim action by employees of Yusen employed at the Tullamarine site could be protected industrial action.

SENIOR DEPUTY PRESIDENT

Appearances:

T McDonald, solicitor,for Yusen Logistics (Australia) Pty Ltd.

A Grogan for the National Union of Workers.

Hearing details:

2015.

Melbourne and Sydney (video hearing).

April 28.

 1   Yusen Logistics (Australia) Pty Ltd v National Union of Workers, PR566546.

 2   MA000038.

 3   Yusen Logistics (Australia) Pty Ltd v National Union of Workers, C2015/2608 and C2015/3705.

 4   Fair Work Act 2009 (Cth), s.408(a).

 5   Fair Work Act 2009 (Cth), s.409(1)(b)(ii).

 6   PR561022.

Printed by authority of the Commonwealth Government Printer

<Price code B, PR566566>