Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union

Application to stop industrial action at the site of Coles National Distribution Centre, Union Road, Somerton, Victoria.

[1] This is an application by Busicom Solutions Pty Ltd (Busicom), pursuant to s.496(1) of the Workplace Relations Act 1996 (the Act), seeking orders against its employees at the Coles Somerton site and the Automotive, Food, Metal, Engineering, Food, Printing and Kindred Industries Union (AMWU) in relation to alleged industrial action by employees at that site.

[2] Section 496(1) of the Act states:

"If it appears to the Commission that industrial action by an employee or employees, or by an employer, that is not, or would not be, protected action:

the Commission must make an order that the industrial action stop, not occur and not be organised."

[3] Industrial action is defined in s.420 of the Act as follows:

"(1) For the purposes of this Act, industrial action means any action of the following kinds:

(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, the 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;

(d) the lockout of employees from their employment by the employer of the employees;

(e) action by employees that is authorised or agreed to by the employer of the employees;

(f) action by an employer that is authorised or agreed to by or on behalf of employees of the employer;

(i) the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and

(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

Note 1: See also subsection�(4), which deals with the burden of proof of the exception in subparagraph�(g)(i) of this definition.

Note 2: The issue of whether action that is not industrial in character is industrial action was considered by the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290. In that case, the Full Bench of the Commission drew a distinction between an employee who does not attend for work in support of a collective demand that the employer agree to alteration of the conditions of employment as being clearly engaged in industrial action and an employee who does not attend for work on account of illness.

(a) conduct is capable of constituting industrial action even if the conduct relates to part only of the duties that employees are required to perform in the course of their employment; and

(b) a reference to industrial action includes a reference to a course of conduct consisting of a series of industrial actions."

[4] Section 496(1) of the Act contains the grant of power which, if the jurisdictional requirements are satisfied, requires the Commission to make orders directing that industrial action by an employee or employees, or by an employer, that is not, or would not be, protected action stop, not occur and not be organised. The jurisdictional requirement is that it must appear to the Commission that industrial action by an employee or employees, or by an employer, that is not, or would not be, protected action is happening; or�is threatened, impending or probable; or is being organised.

[5] The Commission must make findings of fact regarding "jurisdictionally essential prerequisites" prior to exercising the power to make a s.496 order. These jurisdictional prerequisites correspond to the matters contained in s.496(1) of the Act. [1] As noted by a Full Bench in Transport Workers' Union of New South Wales:

"All that is necessary to attract the Commission's jurisdiction is, relevantly, that it appears to the Commission that industrial action by employees, that is or would not be protected, is happening, threatened, impending or probable or being organised." [2]

• whether the jurisdictional perquisites for the making of an order are established - whether it appears to the Commission that industrial action by an employee or employees that is not, or would not be, protected action is happening (in this case). In this case the issue in contention is whether the actions relied upon by Busicom is industrial action, within the meaning of s.420 of the Act. The AMWU does not suggest that the action, if industrial action, is protected action; and

• if the jurisdictional prerequisites are met, the terms of the order sought.

[7] Busicom is a labour hire firm. Relevantly, it supplies labour for a project at a Coles Somerton distribution centre for the construction of a conveyer system, which forms part of a larger project to construct an automated mini-racking system being undertaken by Schaefer.

[8] Busicom employs on average 37-38 employees on the Somerton site - all casual employees. The industrial instruments governing six - seven of the employees are one or other of two Federal awards [3] and an Australian Workplace Agreements for the remainder. The employees work as fitters or trades assistants.

[9] In late January 2007, soon after the Busicom project commenced on the Somerton site, the AMWU approached the company, seeking to negotiate a workplace agreement covering the Busicom employees at Somerton. Negotiations proceeded, leading the AMWU to forward a proposed agreement to Busicom on 22 February 2007. [4]

[10] On 27 February 2007, the AMWU made application under s.451 of the Act for a Secret Ballot Order which, following an interim decision on 23 March 2007, [5] was declined by Simmonds C on 29 March 2007,[6] on the ground that the AMWU had not genuinely tried to reach agreement during the bargaining period.

[11] Since that time, Busicom had requested additional information of the AMWU, which was provided on 5 April 2007.

[12] On Thursday, 5 April 2007, the AMWU advised Busicom of the intended exercise of entry rights by Mr T Mavromatis, the AMWU organiser for the area, to attend a lunch time meeting between 12.30 p.m. and 1.00 p.m. on Tuesday, 10 April 2007. Mr Mavromatis attended the site and held a meeting of Busicom employees in accordance with the notice. He left the site immediately after the meeting. Shortly after 19-20 Busicom employees attended the office of Mr D Samuels, site manager for Schaefer, and advised that they wished to resign their employment. The employees indicated that they would work until 3.00 p.m. that day, which Mr Samuels accepted. He asked the employees to record the fact of their resignation on the sign in/out book when signing out that day. Each of those employees did so. The other seven-eight employees who had attended for work on that day wrote "stay" next to their names when signing out that day. A further nine-ten employees had not attended for work at all on Tuesday, 10 April 2007.

[13] The alleged industrial action relied on by Busicom was said to have commenced on the morning of Wednesday, 11 April 2007, with employees not being available to work and some of them participating in a picket line outside three of the five gates of the Somerton site, which were preventing those employees who were prepared to attend for work to do so. The non-attendance at work and the picket line continued on Thursday, 12 April 2007. Busicom contended that the AMWU had organised the picket through Mr Mavromatis.

[14] The Busicom work on the Somerton site is anticipated to continue for 6-8 weeks.

[15] Busicom called evidence from Mr P Desmond, the Sydney based Manager of Busicom.

[16] Much of Mr Desmond's evidence recounted what he was told by others. Such evidence goes to what was said to him, rather than evidence as to the fact of the matters conveyed to him. To the extent that much of his evidence recounted what Schaffer's site Manager, Mr Samuels had said to him, and Mr Samuels gave direct evidence as to what had occurred, Mr Samuels' evidence is to be preferred to that of Mr Desmond in relation to evidence as to what actually occurred.

[17] Mr Desmond gave evidence that an undisclosed number of unnamed employees had telephoned him indicating that they wished to attend for work but were frightened to do so. [7]

[18] The resignations had not been made in accordance with the employee's "normal" obligations to provide one day's notice and were not accepted by Mr Desmond. [8]

[19] Busicom also brought evidence from Mr D Samuels, the Schaefer Site Manager at the Coles Somerton site. His evidence was that Schaefer has a contract to install an automated mini-racking system, [9] with Busicom providing trades and trades assistants to install a conveyer system associated with the mini-racking system.[10] Mr Samuels is responsible for running the site, including the procurement of goods and management of personnel on site.[11]

[20] On Tuesday, 10 April 2007, Mr Mavromatis attended the site and held a meeting with Busicom employees between 12.30 p.m. and 1.00 p.m. [12] Mr Mavromatis left the site immediately after the meeting.[13]

[21] After the meeting ended, at 1.00 p.m., Busicom employees [14] attended Mr Samuel's office and advised him that they were resigning from their employment:

"People just started to come into the office and advised me that they were resigning that afternoon and I said - asked them had they been asked to do so by the union and they said, no, we just want to resign, so when they left at 3 o'clock in the afternoon, I asked them when they signed out off their time sheets that they all write down individually that they have chosen to resign, which they did." [15]

[22] The employees who resigned indicated beside their signatures on the time sheet that they were resigning. [16] Seven�-�eight of that group asked if they could continue to work through to 3.00 p.m. Mr Samuels raised no objection to them doing so.[17]

[23] Seven�-�eight of the employees who had not resigned asked if they could continue to work. Mr Samuels approved that course of action. They left the site at 3.00 p.m. Mr Samuels expected them to return for work at 6.00 a.m. on Wednesday, 11 April 2007. [18]

[24] Mr Samuels' evidence was that he had the prerogative to accept resignations [19] and accepted the resignations tendered by the 19-20 Busicom employees on 10 April 2007.[20] Mr�Samuel's evidence was that he had authority to remove workers from the site and to accept resignations:

"I see, and you were also asked questions about the practice of accepting resignations at the site, that is, resignations of Busicom employees and you stated that you have authority to accept those resignations. What involvement, if any, does Busicom have in that practice or process you referred to?---If it came down the wire, I could elect to have people removed and advise Busicom that I wanted that to happen, if that was the case.

_I'm asking in respect of accepting resignations, what's the involvement, if any, of Busicom in that process? --- None whatsoever in the first instance. I

simply - somebody comes and says they want to resign, I accept it without question, that's okay. They want to go, they go."_ [21]

[25] On Wednesday, 11 April 2007, Mr Samuels received a call from Coles security advising of a picket-line and the difficulty of people accessing the site. [22] Mr Samuels arrived on site at 6.45 a.m.,[23] observing three of four boom gates blocked by persons, including some persons who had resigned their employment with Busicom the previous day.[24] Mr Samuels spoke to the head of Coles security on site, who advised of intimidation and harassment of people, but with people being allowed through onto the site, but none of the people associated with the Schaefer site were allowed through.[25]

[26] Mr Samuel's evidence was that seven�- eight Busicom employees wanted to work. Three entered the site on Wednesday, 11 April 2007, and one entered the site on Thursday, 12�April 2007. [26] His evidence was that others advised him that they were too frightened or scared to attend at work.

[27] On Thursday, 12 April 2007, Mr Samuels received a telephone call from an employee asking about a bus to get on site. [27] By the time Mr Samuels arrived the bus had already arrived but was prevented from entering the car park,[28] although his evidence also suggested that one of the employees on the bus had advised him that the employees were not prepared to enter the site.[29] Police attending the site advised Mr Samuels that there had not been any altercations.[30]

[28] Over the course of Wednesday and Thursday, Mr Samuels observed the front gate for around 45 minutes in three blocks. [31] He did not observe any vehicle being blocked from entering the site[32] and had not seen Mr Mavromatis impede a vehicle or bus.[33]

[29] Busicom relied on the cessation of work by the employees on Tuesday, 10 April 2007, in contrast to the normal work undertaken before the Easter break on Thursday, 5 April 2007, as evidencing industrial action within the meaning of s.420 of the Act. It submitted that the cessation of work, immediately following the meeting of employees with Mr Mavromatis at 12.30 on 10 April 2007, viewed in a practical context, has the appearance of industrial action. Busicom submitted that of the 37-38 employees working before the Easter break, 19-20 purported to resign on Tuesday, 10 April 2007, nine�-�ten did not attend for work at all on Tuesday, 10 April 2007, and the remaining seven�-�eight employees had indicated to management of an intention to remain in their employment and their preparedness to work, which was thwarted by the picket activity.

[30] Busicom submitted that the purported resignations and the failure of the nine�-�ten employees to attend for work at all on Tuesday, 10 April 2007, in reality constituted industrial action. It submitted that the resignations were not genuine and were in any case ineffective at law. Busicom relied on the continuing attachment to the company of some of the employees who had resigned, by virtue of their attendance at the picket line, to support the proposition that the resignations were a device. Busicom submitted that the Commission should infer that those five�-�six employees who had not attended for work at all on Tuesday, 10 April 2007, and who had not subsequently contacted the company were engaging in industrial action.

[31] I am not satisfied, on the evidence before me, that it appears that industrial action, within the meaning of s.420 of the Act, by an employee or employees of Busicom at the Coles Somerton site is happening or is threatened, impending or probable or is being organised.

[32] On the evidence, of the 37-38 Busicom employees as at Thursday, 5 April 2007 19-20 resigned from their employment on Tuesday, 10 April 2007, five�-�six have not attended for work at all since Thursday, 5 April 2007, and have had no contact with the company since that time and the remainder have indicated to Busicom (directly or through Schaefer) their willingness to work.

[33] I find that the group of 19-20 who resigned their employment on Tuesday, 10 April 2007, have resigned their employment with Busicom. Each of them advised Mr Samuels, the site manager of the project in which Busicom is involved and the person, on his evidence, who had day to day responsibility for the management of labour, of their resignation. They advised him that they were resigning that afternoon. He asked them had they been asked to do so by the union. They advised him that that they had not been asked to resign by the union and just wanted to resign. [34] Mr Samuels asked them to confirm their resignation in writing, in the sign in/out book. Each of those employees did so in accordance with Mr Samuels' direction.[35] Mr�Samuels considered and acceded to the request of some[36] of those employees to work through to 3.00 p.m. on that day.

[34] I am satisfied that the resignations were effective at law, having been given to Mr�Samuels on 10 April 2007 and, at his request confirmed in writing. Mr�Samuels was responsible for the management of personnel engaged within the Schaefer project, [37] signed time sheets,[38] accepted previous resignations on site in the same manner,[39] believed himself to have the prerogative to accept resignations of Busicom employees[40] and had accepted the resignation of the 19-20 employees on Tuesday, 10 April 2007.[41] The fact that some of the employees who resigned later attended the picket line outside of the Coles Somerton site does not alter the fact or effect of the resignations or provide any reasonable basis to characterise them as anything other than resignations.

[35] In my view, Mr Samuels plainly had apparent or ostensible authority to accept the resignations and did so. The concurrence of Busicom in the day to day responsibility of Mr�Samuels in the management of its employees on the site, including the acceptance of resignations, created a reasonable basis for the Busicom employees to presume that Mr�Samuels had authority to accept their resignation. The conduct of Busicom in leaving the day to day management of labour, and relevantly its own employees, on site in the hands of Mr Samuels would reasonably lead the 19-20 employees to believe that Mr Samuels was authorised to accept their resignations. I find that the 19-20 employees did resign and their resignation was effective.

[36] The act of resignation is very different in nature from industrial action and has different, serious consequences. Once made, the resignations could not be withdrawn in the absence of the consent of the employer. [42] Whilst the resignations arose in the context of an industrial dispute, there is no reasonable basis to infer that they were not resignations in substance and effect.

[37] Resignation is not industrial action any more than termination of employment is. [43] the language used in s.420 of the Act does not include resignation within the definition of industrial action.

[38] The only other basis for finding an appearance of industrial action relates to the non-attendance at work of five�-�six employees who have not attended for work since Thursday, 5�April 2007, and who have not subsequently been in contact with Busicom (or Schaefer). There is simply no evidence at all in relation to these employees beyond the fact of their absence from work since 5 April 2007. There is no evidentiary basis upon which it could be safely or reasonably inferred that such employees are engaged in industrial action.

[39] Busicom invited me to make a finding based on Jones v Dunkel [45] that the failure of the AMWU to call evidence from Mr Mavromatis that any such evidence would not have assisted the AMWU case. The principles in relation to Jones v Dunkel were considered by a Full Bench in C. Tamayo and Alsco Linen Service Pty Ltd.[46] In the circumstances of the limited evidentiary case brought by Busicom, the failure of the AMWU to call any evidence in rebuttal does not warrant a "Jones v Dunkel" finding against the AMWU any more than does the failure of Busicom to call those employees who are available to work and who were able to provide evidence in relation to the meeting in which Mr Mavromatis was involved on 10 April 2007. In any case, even if an inference was drawn that the evidence of Mr�Mavromatis would not have assisted the AMWU's case (as distinct from detracting from its case[47]), the evidentiary case brought by Busicom does not support a finding that industrial action is happening or is threatened, impending or probable or is being organised.

[40] I am not satisfied that it appears that industrial action, within the meaning of s.420 of the Act, by an employee or employees of Busicom at the Coles Somerton site is happening or is threatened, impending or probable or is being organised. The jurisdictional prerequisites for the making of an order pursuant to s.451 have not been established. The application by Busicom is refused.

Printed by authority of the Commonwealth Government Printer

[1] See, in the context of s.127 of the Act, prior to amendment by the Workplace Relations Amendment (Work Choices) Act 2005; Coal and Allied Operations Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Others (1997)�73�IR�311; Print P2071, at section 2.3 and Patrick Stevedores No 1 Limited, Print P8838.

[2] PR973479, at paragraph 9.

[3] The identity of the applicable award is a matter in dispute.

[4] In the context of BP2007/2386 (as per Simmonds decision).

[5] [2007] AIRC 228, PR976598.

[6] Order of 30 March 2007, PR976674.

[36] "7-8", Transcript, PN 259 and 266: "most", Transcript, PN369.

[37] Transcript, PN 215, 381-2 and 490-2.

[40] Transcript, PN 382-5 and 490-2.

[42] Sylvestre v The Shell Company of Australia Ltd, Print Q4224.