PR907260 PR907260 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.127 (2) application to stop or prevent industrial action Visy Board Pty Ltd and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (C2001/3971) Various employees Graphic arts COMMISSIONER WHELAN MELBOURNE, 1 AUGUST 2001 Coolaroo site. DECISION The following is an edited version of a decision given in transcript on Friday 27 July 2001: [1] The matter before me is an application by Visy Board Pty Ltd for the making of an order under section 127 of the Workplace Relations Act 1996 in relation to employees of that company who are members of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and officials of the AMWU concerning industrial action at 13 Reo Crescent, Campbellfield, known as the Coolaroo site of the company's operations. [2] The making of an order under section 127 requires that the Commission be satisfied of a number of things. The first is that the Commission is satisfied that industrial action is happening or is threatened, impending or probable, and that that industrial action is in relation to an industrial dispute, or the negotiation or proposed negotiation of an agreement, or work that is regulated by an award or certified agreement. I am satisfied the work on this site is currently regulated by a certified agreement and by awards of this Commission. [3] It is conceded that action is currently not happening and it was not actually suggested that it was impending. The case, as it was put to the Commission, was based on the company's apprehension that industrial action was threatened or probable. The evidence of the company concerning this related, in essence, to three issues. One was that there had been industrial action on the site. That action commenced on 25 July and in the course of that action - and potentially and possibly prior to that, but certainly within the course of that action - the company had become apprehensive concerning the level of hostility which they perceived to exist between members of the AMWU employed on the site and members of the Australian Workers' Union (AWU) also employed on that site. [4] There was an indication that the company had a view that there was a potential for violence to occur. The only actual reference in the affidavit material to anything of that kind appeared to have been a threatening attitude taken by a Mr Mizzi, an employee of the company, against Mr Reid, who is not an employee of the company but who is an official of the AMWU. [5] The second area of the company's evidence was that certain AMWU members employed on the site did not recognise agreements that had been negotiated by the company, either with the AWU or with employees who had resigned from the AMWU. [6] The last area in which it was suggested that there was evidence concerning threatening or probable industrial action was the report of a conversation between Mr Pearson and Mr Reid in relation to the stoppage that started on 25 July in which Mr Reid was asked how long the stoppage would continue. "He replied at first this was not a stoppage as such but that it would go for 24 hours. He then added that it would go for as long as the AMWU wanted it to go" [paragraph 12 of Mr Pearson's affidavit]. [7] It is not disputed that the employees have, in fact, returned to work. The company were told initially by Mr Reid that the action being taken was directed at stopping Visy Board from doing work for Amcor customers. It is within the knowledge of the Commission, that the AMWU is involved currently in enterprise agreement negotiations with Amcor. There have been various issues before the Commission in relation to that. Indeed, it appears that there were placards on the site at Coolaroo with words to the effect of "Stop doing Amcor work" , written on them. [8] Mr Johns submitted that it was likely that there would be further industrial action, or industrial action in response to the negotiations with Amcor, and that the AMWU was likely to try and stop Visy servicing customers of Amcor in that event. That submission, in my view, is pure speculation. Whatever occurs between Amcor and the union in negotiations are matters that can be dealt with elsewhere. In my view, it is speculative to say it is likely that there will be industrial action involving Visy Board arising out of the union's negotiations with another employer. [9] A submission, indicating that industrial action is threatened or probable, in my view, cannot stand. [10] Further, Mr Johns submitted that the union did not accept the agreements negotiated by the company. I can only say three things in relation to that. [11] First, the agreements have not as yet been certified. Second, there are no notices before the Commission of intended industrial action by the AMWU in relation to the initiation of bargaining periods which they have made. I note that there is more than one such initiation that has been made by the union, the earliest of which goes back before any action occurred at the site. I am not sure what the date was, but there has been a notice of initiation of a bargaining period, which may not have involved Coolaroo, but which was made prior to 25 July. It has not been seen by this Commission, and it has not been suggested that there is any notice of intended industrial action that has been lodged by the union. [12] In the event that the union did provide such a notice, then the validity of such a notice or the validity of any action notified would have to be determined in other proceedings. It is not sufficient, in my view, for the company to come here and say it is possible that there might be further action on this site. The making of a section 127 order is a serious matter and, in my view, I need to be satisfied that not only is it possible that there might be action on this site but that it is, in fact, probable that there will be action on this site. [13] I am not satisfied that any action is currently threatened. I am not satisfied that any of the evidence given suggests that such action is threatened. I am prepared to accept the assurances given by the union's representative in these proceedings that such action is not threatened. It then becomes a question of whether it is probable that there will be further action on this site. [14] The fact that there is hostility between groups of employees on a site does not, in my view, indicate that industrial action is probable. [15] There are many ways in which hostility between employees on a site can be dealt with and can be managed by management. It does not necessarily mean that those hostilities will result in industrial action and I am not satisfied that the mere fact that people do not like each other, that they are unhappy about what has been occurring, and that they are members of unions which are in competition with each other will necessarily lead to industrial action involving any or all of the employees on the site. [16] For those reasons, I am not satisfied that the threshold has been met in this case and, given that I have not found that the jurisdictional requirements for making such an order exist, I am dismissing the application. BY THE COMMISSION: COMMISSIONER Appearances: L. Johns for Visy Board Pty Ltd. T. Richmond for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union. Hearing details: 2001. Melbourne: July 27. Printed by authority of the Commonwealth Government Printer <Price code B>