PR927002 PR927002 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.166A giving of notice of intention to take action in tort Amec Engineering Pty Ltd (C2003/662) Various employees Metal industry COMMISSIONER HINGLEY MELBOURNE, 24 JANUARY 2003 Installation of new co-generators to the Eastern Treatment Plant at Thompsons Road, Bangholme. REASONS FOR DECISION [1] Pursuant to s.166A of the Workplace Relations Act 1996 (the Act) Amec Engineering Pty Ltd (Amec) notified the Commission of its intention to bring action in tort against: "the Automotive, Food, Metal, Engineering Printing and Kindred Industries Union (AMWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Construction, Forestry, Mining and Energy Union (CFMEU)" [2] The conduct complained of concerned a picket line located at the entry gate to the site, blocking access which is said to be causing loss to Amec. The picket and stoppage of work by contractor Adecco Industrial Pty Ltd (Adecco) employees at the site, it is alleged, has also meant that a sub-contractor Ofinact Pty Ltd is unable to continue work on site. Commissioner: "Just so that I am clear, what is it that the company wishes to cease by 4.10?" Mr Creighton: "By 4.10 we would seek that the picket disappear entirely and that any industrial action that may be unlawful cease - any action in contemplation of an industrial dispute cease." (Transcript 20.1.03 at PN s 45 4 and 455) [3] This application was technically amended by agreement between the parties, the issue of contention in relation to service was resolved so that it was accepted that the 72 hour period referred to in s.166A (6)(c) would commence at 4.10 p.m. Friday 17 January 2003 and expire at 4.10 p.m. Monday 20 January 2003. [4] Amec engaged employees directly and through Adecco to service two contracts. During December 2002 Amec decided to reduce the 31 Adecco employees by eight and advised Adecco of the names of the eight selected for redundancy. The Adecco employees concerned were advised on 18 December 2002 and the site closed on 19 December for the Christmas/New Year shutdown. [5] On 6 January 2003 Adecco employees returned to the site but did not perform work and subsequently left the site. Representatives of their unions advised Adecco that their employees would be going on leave and returning to work on 13 January 2003. [6] When the union representatives attended with all employees on 13 January 2003 and were unable to secure reinstatement for the eight selected for redundancy, all employees left the site. The representatives (AMWU and CEPU) informed management the site was unsafe as testing and tagging of site facilities were not up-to-date. A request of the Company to the CEPU organiser to make arrangements for the testing and tagging to be carried out to allow a return to work failed to achieve the necessary response. [7] At 6.30 a.m. 15 January 2003 a picket line was established outside the entry gate to the site. Legislation. [8] Section 166A Restriction on Certain Action in Tort states: "166A(1)[Actions against an organisation of employees] Subject to this section, an action in tort under the law of a State or Territory may not be brought by a person against an organisation of employees, or an officer, member or employee of such an organisation, in relation to conduct by the organisation, or by the officer, member or employee acting in that capacity, in contemplation or furtherance of claims that are the subject of an industrial dispute unless the Commission: (a) has certified in writing as mentioned in paragraph 6(a) or (c) in respect of the conduct; or (b) has certified in writing as mentioned in paragraph 6(b) in relation to the person in respect of the conduct." [9] The reference to s.166A (6) is because of the following: "166A(6) [Written certification stating conduct unlikely to stop] If: (a) after the Commission starts to exercise conciliation powers in relation to the industrial dispute it forms the opinion that it is not likely to be able to stop the conduct promptly; or (b) the Commission decides that it would cause substantial injustice to the person who gave a notice under subsection (3) in respect of the conduct if the person were prevented from bringing the action to which the notice relates while the Commission is exercising conciliation powers in relation to the industrial dispute; or (c) the Commission has not stopped the conduct by the end of 72 hours after the notice was given under subsection (3) in respect of the conduct; the Commission must immediately certify in writing to that effect." [10] In accordance with Rule 29(2) of the Commission Rules the notifier served a copy of the notice on the AMWU, CEPU and CFMEU. The issues in dispute i.e. relating to eight redundancies and enterprise bargaining had previously been the subject of conciliation in respect of AMWU and Adecco pursuant to a s.99 notification by AMWU. [11] This notification was listed for proceedings which commenced on Friday 17 January 2003. Conciliation failed to resolve the matter or to remove the conduct complained of. The Commission then had no option but to hear the arguments in relation to the notification. [12] It was said by Mr Addison for the AMWU and Mr Leane for the CEPU that AMWU and CEPU had separately initiated bargaining periods for negotiations with Adecco and that notified industrial action supporting or advancing claims was protected action pursuant to s.170ML of the Act. As such it was put that protected action was immune from actions in tort, pursuant to s.170MT(2). [13] I agree with the comments quoted with approval by Simmonds C in ATCO Magnet Wire Pty Ltd v AWU (25 June 1999 [Print R6327]) wherein it was said: "On the authority of the Commission decisions Wettinger Homes [N5580] and Mobil [Print N8195] the role of the Commission was not to determine whether, for example the conduct complained of constituted a tort. What is required is that the conduct in question must relate to an industrial dispute, be plausibly the subject of a tort action and there be manifested an intention to bring an action in tort in relation to the conduct. On that same authority it is only necessary to identify that there is conduct: (i) capable of being subject of a notice; (ii) capable of being the subject of conciliation proceedings; (iii) capable of being subject to attempts by the Commission to stop it; and, (iv) of a character that might reasonably be the subject of a declared intention to bring an action in tort." On these authorities it is not necessary for me to find whether the industrial action is protected action or not or whether the conduct of picketers was lawful or unlawful. [14] The notifier gave written notice to the Commission in its Form R11 under Rule 29 of its intention to bring an action in tort. This was affirmed by Mr Creighton for Amec in his submissions on behalf of the notifier. "And subject to any prior resolution of the matter, it is the company's intention to initiate proceedings in the Supreme Court of Victoria early next week, in order to seek relief in respect of the unlawful conduct." (Transcript 17.1.03 at PN 33). [15] The matter was the subject of conciliation proceedings. [16] Mr Maddison for the CFMEU submitted that the termination of eight employees of Adecco cannot found an industrial dispute because there is no employer/employee relationship with Amec and further that once terminated there cannot be an industrial dispute because there is no longer an employer/employee relationship. [17] In my view the primary basis of the conflict between all parties was the termination of employment of the eight employees. Mr Addison put it this way; "The issue, we will contend, that Amec has acted in an unconscionable way potentially. I don't know how Amec has selected the eight individuals." (Transcript 20.1 at PN159) "Well, on of the issues that is alleged to be a root cause of the dispute is the unconscionable action of the company in unfairly and improperly terminating eight people. If this matter is to be resolved - and part of the Commission's function and the Commission still has, until ten past four this afternoon, the ability to stop this dispute." (ibid PN 173) [18] The unchallenged evidence was that Amec selected the number and the individuals for redundancy and instructed Adecco to action the terminations. In doing so it exercised a very real decision and action in respect of the employer and employee relationship of employees performing work for it. I am satisfied a dispute exists and within the extended meaning of industrial dispute, now available under s.493 of the Act. [19] Mr Peace of Amec gave evidence that Mr Bradley AMWU organiser, Mr Roach AMWU, Mr Leane CEPU organiser and Mr Conduit CEPU and Mr Porter CFMEU participated in discussions with both Amec and Adecco regarding the issues in dispute and including Mr K Johns CFMEU were present when all Adecco employees including the eight made redundant, attended the site on 13 January. This evidence was unchallenged and I accept its veracity. It is clear all three unions acted in unison and all organised the industrial action of their members. [20] The evidence of Mr Peace was also that on 15 January the organisers of all three unions held discussions with him outside the premises at the picket site (Transcript PN114/115). Union officials of all three unions with all shop stewards were identified by Mr Peace as participating among "probably 40, maybe as many as 50" at 8 a.m. on the picket line (ibid PNs 118-120). This evidence was also unchallenged. [21] The Commission took steps to stop the conduct of both the picket and the withholding of labour but was unsuccessful within the 72 hour period. [22] The decision to issue a s.166A certificate is strictly a question of establishing the facts and while that may involve a level of value judgements, on finding on the evidence the factual prerequisites, there is no discretion available to the Commission. If the Commission has not stopped the conduct complained of by the end of 72 hours after the notice was given, the Commission must immediately certify in writing to that effect. There is no discretion available. [23] In my view the conduct is of a character that might reasonably be the subject of a declared intention of the notifier to bring an action in tort because of its failure to have work performed by its contractor Adecco and/or others. [24] The undertaking of the union officials before the Commission, to go to the picket line and inform their members that the unions could not condone activity that was unlawful, does not satisfy me that unlawful conduct such as physically impeding access will not occur. Indeed the mere presence of a picket line per se would have the effect of deterring unionists, some employees of contractors and sub-contractors and others, from crossing a picket line and entering the gates. [25] As a consequence of the Commission's inability to stop the conduct complained of, the Commission as presently constituted issued a decision [ PR926855 ] and a Certificate at 4.10 p.m. 20 January 2003. The above are my reasons. 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