PR908469 PR908469 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.127 (2) application to stop or prevent industrial action Holden Limited (C2001/4693) Various employees Metal industry SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 31 AUGUST 2001 Order to stop or prevent industrial action DECISION [1] This is an application, pursuant to s.127 of the Workplace Relations Act 1996 (the Act), by Holden Limited (Holden), for the making of orders in respect of current and alleged probable industrial action by Members of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, The Australian Workers' Union, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, and the Construction, Forestry, Mining and Energy Union (the unions) engaged by it at its operations at Elizabeth, South Australia. [2] The order sought is in the following terms: Pursuant to s.127 of the Workplace Relations Act 1966 (the Act), the Commission orders as follows: 1. Title This order shall be known as the Holden South Australia Industrial Action Order (August) 2001 ( the Order ). 2. Parties Bound This order is binding upon: 2.1 the Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union ( "AMWU" ), its officials, employees and agents; 2.2 the Australian Workers Union ( "AWU" ), its officials, employees and agents; 2.3 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union ( "CEPU" ), its officials, employees and agents; 2.4 the Construction, Forestry, Mining and Energy Union (" CFMEU "), its officials, employees and agents; 2.5 employees of the Applicant employed under the industrial instruments whether members of the AMWU, AWU, CEPU or CFMEU or not ( the Employees ); 2.6 those parties and persons set out above in respect of the Elizabeth Plant in South Australia (collectively, the Respondent parties ) 3. Industrial Action 3.1 All industrial action as defined in clause 3.2 including in particular strikes, unauthorised stoppages of work, bans or limitations on the performance of work by the Employees, shall stop or not occur, or where occurring shall stop, be discontinued, or cancelled and withdrawn. 3.2 For the purposes of this order, the expression "industrial action" means: (a) a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work; (b) a ban, limitation or restriction on the performance of work, or the acceptance of an offering of work; (c) the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or a delay in, the performance of work; (d) the authorising, directing, organising or encouraging of any person to whom this Order applies to engage in the conduct referred to in paragraphs (a) to (c) above. 3.3 The AMWU, AWU, CEPU and CFMEU including employees, officials and agents of those unions must stop and not recommence any ban on the Employees attending for and performing work at the Elizabeth Plant, South Australia site, and must not direct, procure, advise or authorise the Employees to stop performing work. 3.4 The AMWU, AWU, CEPU and CFMEU shall jointly prepare a written notice, signed by an authorised official of each of the AMWU, AWU, CEPU and CFMEU, in the following terms: "The Australian Industrial Relations Commission has issued a s.127 order to stop or prevent industrial action. The order is called the Holden South Australia Industrial Action Order (August) 2001. The order requires that there be no industrial action by all AMWU, AWU, CEPU and CFMEU employees ( `Plant Employees' ) at the Elizabeth, South Australia site employed by Holden Limited, and prevents the AMWU, AWU, CEPU and CFMEU authorising, directing, organising or encouraging any industrial action. The order applies to: · The AMWU, AWU, CEPU and CFMEU its employees, officials and agents; and · all employees of Holden Limited employed as Plant Employees at the Elizabeth, South Australia site. To comply with the order, you must proceed to work as normal. All forms of authorisation of industrial action by the AMWU, AWU, CEPU and CFMEU and/or its officials are hereby withdrawn and cancelled. Please speak to your local organiser if you have any questions." 3.5 The notice referred to in clause 3.4 shall be provided to Andria Wyman, Human Resources Director, Employee Environment, Holden Limited, 241 Salmon Street, Port Melbourne, Victoria 3207. 4. Exclusions This Order shall not apply to any action taken by a person to whom this Order applies if such action was based on a reasonable concern by the person about an imminent risk to the health and safety of themselves or others and the relevant site procedures for dealing with disputes concerning occupational health and safety have been fully complied with. 5. Service of Order 5.1 The Applicant shall serve a copy of this Order on all persons bound by this Order. 5.2 Service of this Order on all persons bound by this Order may be effected by forwarding a copy of this Order by facsimile transmission to the National and Victorian State Offices of the AMWU, AWU, CEPU, or CFMEU. 6. Term and Date of Effect This Order shall come into effect on 31 August 2001 and shall remain in force for 3 months. [3] The order seeks to bind each of the unions, its officials and agents and employees of the applicant in respect of Holden's Elizabeth Plant, South Australia. [4] The application follows strike action by Holden's South Australian operations in relation to enterprise bargaining negotiations concerning an agreement to replace the August 1998 enterprise agreement. [5] Holden brought evidence from Andria Wyman, Human Resources Director for Employee Environment, and documentary materials. From that evidence I find: · its employees, members of the unions, engaged at the Elizabeth operation have ceased work following a report back meeting on Thursday, 30 August, with the unions advising Holden that employees will resume work on Monday, 3 September; · the strike action has resulted in substantial lost production and sales, and, on the basis advised to Holden, will result in the loss of significant overtime programmed for the weekend of 1 and 2 September. It will also result in stand-downs in Holden's Victorian engine plant operations on Monday, 3 September; · the unions have initiated bargaining periods and, at times, notified of intended industrial action (with s.170MO notices), which the unions have subsequently withdrawn, or not acted upon in light of satisfactory progress in negotiations; · report back meetings occurred in respect of Holden's Victorian and South Australian operations on 20 August, with a strike action undertaken by employees in Victoria; and · the work undertaken at South Australia is plainly subject to an Award within the meaning of the Act. [6] Whilst I am satisfied that the employees sought to be bound by the order are engaged in industrial action which is happening, I am not satisfied that the unions sought to be bound are a party to or concerned with the industrial action. On the evidence, the 30 August report back was intended by the unions to be just that, and was acquiesced to by Holden on that basis. The evidence suggests that the unions were prepared to refrain from their rights to `protected action' under the Act on the basis of their satisfaction with enterprise bargaining negotiations. In that context, the participation of union officials in the report back meetings and the reporting by Mr Camillo of the decision by Members to take strike action does not, in my view, provide evidence to find or infer that the unions are a party to or concerned with the industrial action. [7] Accordingly, I find that whilst jurisdiction exists for the making of an order in respect of Holden employees in South Australia, I am not satisfied that jurisdiction exists for the making of orders binding the unions, their officials, employees and agents. [8] The question then arises as to whether, as a matter of discretion, orders should be made in respect of the South Australian employees. In my view, on the evidence to date, if such an order were to be made it should be made only in respect of the particular industrial action evidenced in the present proceedings. Given the scope for further bargaining, and the preparedness of the parties to engage in further bargaining (subject to the other party acting within the terms of the Act), and given the practical difficulties of ensuring communication of such an order to all employees, I am not inclined to issue such an order against the employees. [9] However, it is patently clear that there is scope for further negotiations to conclude a new agreement, and that the current unprotected action by South Australian employees is unnecessary and destructive to the interests of both Holden and its employees in South Australia, and also Victoria (where employees face stand-downs). Accordingly, I strongly recommend: 1. the unions formulate a joint document, to be conveyed to Andria Wyman by 4.30pm today, for use by Holden in seeking to have employees attend for remaining Friday shifts and programmed overtime, which records this recommendation, recommends its acceptance by Members and encourages Members to resume work for remaining Friday shifts and undertake programmed overtime over the weekend; 2. that all employees in South Australia attend work to undertake remaining Friday shifts and programmed overtime over the weekend; 3. That Holden take whatever steps it can to contact employees to maximise attendance at work to undertake remaining Friday shifts and undertake programmed overtime over the weekend; and 4. the unions and Holden resume enterprise bargaining negotiations at the earliest possible time, with the assistance of the Commission as required, in the absence of industrial action. [10] It appears that South Australian employees may have taken industrial action in the mistaken belief that Holden's wages offer conveyed to them on 30 August was its final position. The evidence before me is that the offer was not the Company's final position and it was in the process of considering alternative propositions put to it by the FVIU. In these circumstances there is no purpose at all in subjecting Holden to substantial economic losses, nor in employees foregoing wages in respect to Friday work and weekend overtime. [11] Holden is at liberty to bring on this matter or file such other application as is appropriate should circumstances require. BY THE COMMISSION: SENIOR DEPUTY PRESIDENT Appearances: F. Parry (of Counsel) with G. Smith for Holden Limited. E. White (of Counsel) with A. Sacchinidis for the Unions. Hearing details: 2001. Melbourne: August 31. Printed by authority of the Commonwealth Government Printer <Price code B>