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[2018] FWC 2979
General information, not legal advice.
Fair Work Commission
2018-08-03
Original judgment source is linked above.
s.229 - Bargaining order
Castlemaine Perkins Pty Limited T/A Castlemaine Perkins
Application for bargaining order - alleged failure to meet good faith bargaining requirements -s. 228(1)(e) - alleged capricious or unfair conduct that undermines freedom of association and collective bargaining - preventing or hindering access to site during rally which coincides with industrial action - false and misleading statements to the media about the future of the brewery - bargaining order issued.
[1] Castlemaine Perkins Pty Limited T/A Castlemaine Perkins (CPPL) has applied under s.229 of the Fair Work Act 2009 (the Act) for a bargaining order against United Voice (United Voice/Union). CPPL owns and operates the XXXX brewery in Milton, Queensland (the Brewery) at which a number of beers, including XXXX, Tooheys and Hahn are brewed, packaged and distributed. CPPL is wholly owned by the Japanese company Lion.
[2] The order sought by CPPL would require United Voice to be restrained from preventing or hindering access to the Brewery, and restrain United Voice from making certain statements and representations to the media and on social media.
[3] The Brewery is situated on Milton Road, Milton, at the intersection of Paten Street. Roughly speaking, Milton Road marks the southern border of the Brewery site, Paten Street the eastern border and Black Street the northern border.
[4] Approximately 150 CPPL employees work at the Brewery. This includes approximately 99 employees who perform brewing, packaging, stores, electrical, mechanical and other production work (the Employees).
[5] The Castlemaine Perkins Pty Limited Certified Agreement 2014-2017 (the Agreement) is the current industrial instrument for the Employees at the Brewery. The Agreement reached its nominal expiry date on 30 September 2017. The Agreement covers CPPL, the Employees, United Voice, and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU).
[6] On or around 24 May 2017 CPPL initiated bargaining for a proposed enterprise agreement to replace the Agreement (Proposed Agreement). On 31 May 2017 CPPL distributed a notice of employee representational rights to Employees to be covered by the Proposed Agreement.
[7] There are three bargaining representatives for the Proposed Agreement; CPPL, United Voice and the CEPU. The bargaining representatives have conducted over 19 bargaining meetings together, with the first meeting held on 15 June 2017.
[8] There are a number of key issues that remain in dispute between the parties in bargaining for the Proposed Agreement, including:
(a) CPPL's use of third party or supplementary labour;
(b) consultation and dispute resolution;
(c) salary increases;
(d) duration and nominal expiry date;
(e) a clause proposed by United Voice which refers to "no site closure during the term of the agreement" and the circumstances in which "stand downs" may occur. CPPL is unwilling to agree to this as there are circumstances beyond its control that may require a site closure, such as fire, extreme weather events, etc.; and"effective teamwork" clause (i.e. CPPL seeks this clause in the Agreement to be removed as it is aspirational in nature. United Voice seeks a revised clause which effectively provides that salaried staff are not to undertake certain tasks without being requested to do so by Employees).
[9] The third party labour issue is particularly contentious and has taken up a significant amount of time in bargaining. CPPL previously expressed concerns to United Voice that it considers that the Union is seeking clauses which contain non-permitted matters. In furthering the Employees' bargaining position, United Voice made an application for a protected action ballot order which was opposed by CPPL.
[10] On 27 September 2017 I issued a decision dismissing United Voice's application for a protected action ballot order (PABO) on the basis that United Voice was not genuinely trying to reach an agreement after 13 September 2017 because of its pursuit thereafter of its proposed contractor's clause which is a non-permitted matter.[1]
[11] On 7 February 2018 CPPL applied to the Commission under s. 240 of the Act for assistance to resolve some of the unresolved bargaining issues.
[12] An initial s.240 conference was convened before me at the Fair Work Commission (the Commission) premises on 16 February 2018. A further s.240 conference was scheduled to be held at the Brewery on 15 March 2018 to allow all relevant delegates and bargaining representatives to be present. The parties were tasked with the following obligations:
(a) CPPL to provide its latest draft proposal by 19 February 2018; and
(b) United Voice to provide its response and any counter proposal by 26 February 2018.
[13] On 26 February 2018 United Voice made another application for a PABO. This was not opposed by CPPL and accordingly the order was made by Deputy President Gostencnik on 28 February 2018 with voting to close on 22 March 2018.[2]
[14] On 7 March 2018 CPPL corresponded with United Voice as follows:
The Company is concerned that United Voice continues to advance claims about non-permitted matters.
We are also concerned that United Voice has made false or misleading statements about the Company's bargaining position, and that this conduct is inconsistent with United Voice's good faith bargaining obligations under the Act.
Unless these matters are resolved, industrial action is unlikely to be protected. I have set out below the Company's concerns in detail, together with a proposal to resolve these issues and take bargaining forward.
As per your letter to the Fair Work Commission dated 23 February 2018, we understand United Voice is currently seeking to include in the proposed agreement the supplementary labour clause attached that letter. The Company has the following concerns about non-permitted matters within this clause (many of which we have raised with you previously in relation to previous versions of your proposed clause):
These issues could be resolved if United Voice agreed to:
b. Replace cl 10.5.2(c) with a new subclause as follows: 'This clause does not require the employer to consult in relation to each occasion on which it engages engage supplementary labour. Rather, consultation under this clause is only required before the employer engages supplementary labour in a different way to which it has been engaged in the past. Consultation need only be for the duration necessary to cover the matters described in subclauses (a) and (b)'
The Company's concern that United Voice is knowingly advancing claims about non-permitted matters (and intends the proposed supplementary labour clause to operate as a substantive restriction on the Company's capacity to engage contract labour3) is borne out by the comments that United Voice has made to various media outlets immediately following the making of the protected action ballot order on 28 February 2018. We address this issue in further detail below.
We are concerned that United Voice has made false or misleading statements to the media. For example:
In addition, we are concerned that United Voice is seeking to include misleading content in the proposed agreement. The proposed supplementary labour clauses states that '[i]t is not the intention of the employer to engage supplementary labour to perform core production duties', As set out in my letter of 2 February 2018 in relation to the contractors clause in the existing agreement, this statement is not accurate. It would be misleading to include this provision in the new agreement.
As a result of the above misleading and inaccurate claims, the Company is concerned that United Voice is engaging in capricious or unfair conduct that is inconsistent with its good faith bargaining obligations.
From the above media statements, it is clear that United Voice is organising industrial action to advance its position regarding supplementary labour. In fact, it appears that the supplementary labour clause is again United Voice's key outstanding claim in bargaining.
The United Voice media release mentioned above states that 'Around 100 XXXX workers will vote to take industrial action after the iconic Queensland company has refused to guarantee jobs will be kept local.' In the Courier Mail article mentioned above, Damien Davie is quoted as saying 'Queenslanders need to get behind our workers when they take action' because of issues regarding the Company's (alleged) proposed use of supplementary labour (e.g. 'cheap labour from over the border' etc.). These statements clearly show that 3PL is a primary driver for the proposed industrial action.
Given our concerns about the non-permitted matters in United Voice's proposed clause, we believe that United Voice is organising industrial action for the purpose of supporting or advancing claims that are not only about permitted matters, and United Voice does not reasonably believe otherwise. Industrial action taken will therefore not be protected in accordance with s 409(1)(a) of the Act unless United Voice addresses the concerns that the Company has about the proposed supplementary labour clause (as set out above).
We request that United Voice reconsider its position on its proposed supplementary labour clause and provide an amended proposal that addresses the concerns that we have raised above. As part of this, we ask that United Voice provide an explanation as to its interpretation of the proposed clause, how it is intended to operate, and how it is said to only include permitted matters. We ask that this response be provided prior to the conference before Commissioner Hunt on 15 March 2018.
We also ask that United Voice provide an undertaking that it will refrain from making false or misleading statements to the media (including any further statements along the same lines as those set out above).
If the 3PL issue is not resolved at the 15 March conference, and if United Voice does not address the Company's concerns about non-permitted matter, we reserve our rights to respond to the upcoming industrial action, which may include seeking orders under s 418 of the Act to stop it. Of course, it is the Company's preference that the parties instead focus on reaching an agreed position in relation to the proposed supplementary labour clause, and the broader agreement. Accordingly, we will be asking the FWC to make a recommendation that no industrial action be organised until the supplementary labour hire clause is agreed."
[15] On 12 March 2018 United Voice corresponded with CPPL as follows:
You have been previously advised that the union does not intend to seek any non-permitted matters in the proposed agreement. We have previously provided you with draft clauses about job security and supplementary labour which the parties have been discussing, and suggesting changes.
Your latest correspondence invites some further revisions to our draft clause, some of which we believe we can accommodate.
I have attached a revised clause for your consideration.
I confirm that our interest in confirming the applicable pay rates for supplementary labour is confined to the rates applicable to work covered by the agreement. With further discussion, we should be able to find agreed wording to capture our mutual intent.
We are hopeful of reaching agreement with you for supplementary employees of labour hire companies to be paid the rates that are agreed as applicable to the relevant work.
Please note that the issue of pay will need to be discussed further and we have not included that component in our draft.
We deny that United Voice has made false or misleading statements to the media or are seeking to include any misleading content in the agreement.
Protected industrial action is an integral part of the bargaining scheme under the Fair Work Act 2009. At this point, a ballot process is underway and has not concluded. We will reserve further response on your correspondence until after the declaration of the protected action ballot.
United Voice is committed to bargaining in good faith with the Company. If any party has concerns that another negotiating party is not meeting good faith bargaining requirements, it is open for that party to provide a written notice under section 229 (4)(b) of the Act, and invite a response.
United Voice believes we are making progress in negotiations with the Company. We are optimistic that we can further narrow down the areas of disagreement.
Your application under s 240 (82018/83) stated that your purpose of making the application was "CP is hopeful that with the Commission's assistance, the parties can return to the bargaining table and reach agreement on the outstanding items."
As per our previous advice, we believed that the initial FWC conference of 16 February 2018 was a useful circuit breaker which has assisted the parties in clarifying a constructive process for our ongoing negotiations. It is up to the parties ourselves to concentrate on discussing and developing the content. With those matters in mind, we previously advised you that we did not wish to attend any FWC-assisted discussions after 15 March 2018.
Subsequently, we have received your letter of 7 March. We have carefully considered the penultimate sentence in your letter, viz., "...we will be asking the FWC to make a recommendation that no industrial action be organised until the supplementary labour hire clause is agreed. "
We consider that statement to reveal an extraordinary abuse of process by the Company and to be contrary to your stated intentions of seeking a conference under section 240 of the Act. United Voice take the view that you are seeking to misuse the s. 240 conference for collateral and inappropriate purposes. On that basis, we will not be attending the FWC conference on 15 March 2018, and confirm that we will not participate any further in FWC matter number B2018/83.
We will correspond with Commissioner Hunt and advise of our position.
We are keen to meet with the Company to progress negotiations and wish to schedule a timetable of meetings with you for that purpose. We attach our comments on the combined negotiating document.
[16] On the same date United Voice corresponded with the Commission as follows:
Re: 82018/83, Application by Castlemaine Perkins Pty Limited
United Voice refers to the above matter which was subject to a conference on 16 February 2018.
The matter is currently listed for Conference on Thursday 15 March 2018.
We advise that United Voice respectfully advises that we no longer wish to participate in any further conciliation regarding matter number B2018/83.
On that basis, we advise that will not attend the Conference on 15 March 2018 and request that the listing be cancelled and the file closed.
[17] On 14 March 2018 CPPL corresponded as follows:
Further to our letter of 13 March 2018, Castlemaine Perkins Pty Ltd (the Company) has corresponded with the respondent unions, United Voice and the CEPU, about the conference listed with you at 8am tomorrow.
Unfortunately, both unions have refused to change their position and have confirmed that they will not attend the conference tomorrow.
The Company is disappointed with this outcome, however in the circumstances we have reluctantly agreed to cancel the listing for the conference on 15 March 2018.
The parties have instead agreed to meet on 26 March, 17 April and 18 April 2018, and are in discussion about additional dates.
The Company sees significant value in continuing discussions with the Commission's assistance, and we would very much like the opportunity to request further assistance in future. We respectfully request that our application remain 'open' and that the Commission instead list the matter for a 'report back conference' at a time convenient to the Commission in approximately 6 weeks' time (i.e. after the parties have met on a number of occasions to try to progress negotiations).
We thank the Commission for its assistance in this matter to date."
[18] At the request of CPPL the conference was cancelled and a report back date was listed for 23 April 2018.
[19] On 28 March 2018 my Associate wrote to the parties as follows:
The Commissioner notes that the parties are meeting on 17 April 2018 ahead of the scheduled report back conference on 23 April 2018.
The Commissioner is available on 18 April 2018 and inquires if it would it be of any assistance to the parties to have a conference before the Commissioner on that day. The Commissioner can attend on site if suitable."
[20] CPPL corresponded that it accepted the Commission's assistance to attend an on-site meeting on 18 April 2018. The correspondence also noted that CPPL confirmed the cancellation of a planned 4 April 2018 bargaining meeting between the parties (without the Commission's assistance).
[21] Correspondence from United Voice on 29 March 2018 and 4 April 2018 declined the Commission's offer to attend on 18 April 2018. United Voice confirmed that it did wish to meet with CPPL on 18 April 2018, but the meeting would not be a s.240 conference facilitated by the Commission.
[22] On 5 April 2018 CPPL corresponded as follows:
"Please be advised due to operational matters the company is unable to meet on 17 and 18 April 2018.
We offer an alternate date of Wednesday 11 April 2018 from 10am - 12pm.
Please advise if you are able to make this date & time."
[23] Having disclosed to the parties that I was available to convene a conference at 2pm on 11 April 2018, but not earlier, the CEPU corresponded that Mr Garry Rogers, Organiser was available at 10am but not at 2pm. CPPL corresponded that it considered a meeting at 2pm, facilitated by the Commission, to be appropriate and invited the CEPU to send an alternate representative if it so wished. United Voice corresponded that it could not meet at 2pm.
[24] At this point in time I considered it inappropriate for United Voice to resist the scheduling of further s.240 conferences. While the listed conference of 15 March 2018 was vacated at CPPL's request, I determined it appropriate for further s.240 conferences to be convened to deal with the s.240 application before the Commission. The following correspondence was sent to the parties on 6 April 2018:
A s.240 application has been made to the Commission by the applicant company. I consider that the application made empowers the Commission to deal with the dispute if the bargaining representatives are unable to resolve the dispute.
A conference will be convened at 10.00am on Wednesday, 11 April 2018 at the work premises. The conference will proceed for a minimum of two hours.
All unions representing members' interests are directed to attend and actively participate in the conference. If the site organiser or official is not available to attend due to other pressing commitments, an alternate shall attend in their place and actively participate. It is expected the applicant company will release all relevant delegates to attend and actively participate in the conference.
At this conference, further dates will also be set for conferences with the Commission's assistance pursuant to the s.240 application, together with other dates where the parties will meet without the Commission's assistance.
A Notice of Listing will shortly be sent to all parties."
[25] On 3 April 2018 CPPL made application for a bargaining order against United Voice, the subject of this Decision. Proposed dates for the filing of material were proposed by CPPL and discussed with the legal representative of United Voice.
[26] On 9 April 2018 my Associate wrote to the parties as follows:
I refer to the below email of 5 April 2018, containing draft Directions by consent.
The Commissioner will be meeting with the parties on Wednesday, 11 April 2018 in relation to the s.240 application (B2018/83).
If on that date, the Commissioner considers that Directions are necessary in relation to the s.229 application (B2018/223) they will be issued accordingly with the dates adjusted."
[27] On 11 April 2018 I facilitated the first s.240 conference at the Brewery premises with all bargaining representatives present. Following the conference relevant Employees took protected industrial action consisting of two consecutive 30 minute work stoppages from 1.00pm, and a further two consecutive 30 minute stoppages from 10.00pm.
[28] Further protected industrial action was taken on 18 April 2018.
[29] On 18 April 2018 directions were issued for the filing of material relevant to this application. The matter was ultimately listed for hearing on 17 and 18 May 2018. In the meantime I facilitated further in-person s.240 conferences at the Brewery on 23 April, 1 May and 11 May 2018.
[30] The order sought by CPPL is as follows:
(a) preventing, hindering or interfering with, or attempting to prevent, hinder or interfere with, free access to and free egress from the Site by any person or vehicle, whether by themselves or by any object or vehicle; and
(b) advising, causing, inducing, procuring or inciting any person to do or attempt to do any of the things restrained by sub-paragraph 1(a) of these orders.
(a) CPPL has threatened to, is threatening to, wants to or intends to close or shut down the Site;
(b) CPPL has threatened to, is threatening to, wants to or intends to outsource, shift or move jobs from the Site to interstate or offshore;
(c) CPPL has threatened to, is threatening to, wants to or intends to increase its use of interstate labour at the Site;
(d) CPPL has threatened to, is threatening to, wants to or intends to increase its usage of contractors, casuals, supplementary labour or other third party labour (howsoever described) at the Site at the expense of, instead of or in exchange for, existing employees or workers at the Site;
(e) CPPL has threatened to, is threatening to, wants to or intends to outsource, shift or move production from the Site to interstate or offshore;
(f) any industrial action in relation to the Site is being organised by United Voice and or taken by Employees:
(i) for the purpose of supporting or advancing claims to prevent, limit or restrict CPPL from engaging or using contractors, supplementary labour or other third party labour (howsoever described);
(ii) for the purpose of supporting or advancing claims to keep jobs and production at the Site local, in Queensland or on home turf; or
(iii) because of concerns about jobs and production at the Site being moved interstate or offshore."
[31] The draft order also included obligations on United Voice to inform its employees and members of the existence of the order (when made), including emailing employees and members, sending an SMS and putting the details of the order (when made) on the United Voice Facebook page and website.
[32] At the hearing before me on 17 and 18 May 2018 Mr M. Follett of Counsel appeared for CPPL. Mr R. Reed of Counsel appeared for United Voice. Leave was granted to both parties pursuant to s.596(2)(a) of the Act on account of the complexity of the issue.
[33] The following people gave evidence and were cross-examined:
Ms Michelle Wicks, Workplace Relations Leader, Lion;
Mr Andrew Campfield, People and Culture Leader, Lion;
Mr Peter Shepherd, Managing Director, HATAMOTO Holdings Pty Ltd;
Mr Adam Howard, Security Contractor to HATAMOTO Holdings Pty Ltd;
Mr Damien Davie, Coordinator, United Voice; and
Ms Ellie Bassingthwaighte, Solicitor, Hall Payne Lawyers (not required for cross-examination).
[34] Video and photographic evidence of a demonstration outside of the Brewery on 26 March 2018 was admitted.
[35] Mr Campfield's evidence is that on 11 April 2018, following the s.240 bargaining conference referred to at [27], he observed and photographed Mr Davie standing in the middle of the road outside of the Brewery. He observed that Mr Davie stopped approximately four vehicles from turning into a road near the Brewery where Employees taking protected industrial action had been marching. The Employees then assembled on a grass patch near the entrance to the Brewery but did so without obstructing entry or egress.
[36] Ms Wicks is responsible for participating in and managing CPPL's industrial relations and enterprise bargaining matters. Bargaining meetings have taken place on over 20 occasions to attempt to reach a Proposed Agreement.
[37] CPPL did not oppose the PABO sought by United Voice on 26 February 2018 despite having some concerns about United Voice's proposed contractors' clause containing non-permitted matters. Ms Wicks stated that no opposition was made at the time because United Voice had made changes to the PABO it was seeking, had made changes to the draft clause, and had committed to attending a s.240 conference on 15 March 2018.
[38] Ms Wicks was not present at the Brewery on 26 March 2018 when the first work stoppage occurred.
[39] On 5 April 2018 United Voice notified CPPL that United Voice intended to organise, and its members intended to take protected industrial action on 11April 2018. CPPL wrote to the legal representative of United Voice as follows:
".....Given that the last instance of industrial action organised by your client coincided with an obstructive picket that blocked vehicle access to and from our client's site (the Milton XXXX brewery), our client is concerned that similar conduct may occur again on 11 April 2018 (these matters are set out in further detail in our client's application in matter B2018/223).
Accordingly, our client seeks from your client an undertaking to the following effect:
United Voice will not cause, organise, or encourage, and United Voice will take all reasonable steps to ensure that its officers, employees and members do not, cause, organise, or encourage, any obstruction to and from the XXXX brewery in Milton for any vehicle or persons on 11 April 2018.
[40] An appropriate undertaking was given on 9 April 2018 relevant to the industrial action planned for 11 April 2018.
[41] When industrial action was notified to be taken on 18 April 2018 CPPL wrote to United Voice largely in the same terms as [39] above. An appropriate undertaking was given on 16 April 2018 relevant to the industrial action planned for 18 April 2018.
[42] Relevant to the media statements made by United Voice throughout bargaining for the Proposed Agreement, it is Ms Wicks' evidence that CPPL has repeatedly written to United Voice outlining its concerns as to what it says are misleading, false and unfair statements. CPPL does not consider that United Voice has responded appropriately to CPPL's concerns, and United Voice refused to confirm it would immediately cease making, and not continue to make such statements to the media.
[43] CPPL does not accept United Voice's contention that its media commentary is not linked to bargaining. The relevant media commentary was made in the context of bargaining and often specifically referenced the bargaining or the industrial action organised in support of it. The relevant media commentary only started after bargaining commenced, and notably, shortly after the PABO was made.
[44] Examples of media activities undertaken by United Voice for which CPPL considers to be misleading, false or unfair include the following (collectively 'the Media Statements'):
(a) an article in The Sydney Morning Herald dated 10 July 2017 entitled "Union warns Brisbane's famous XXXX brewery is set to close its doors". This article quoted Damien Davie (identified in the article as "United Voice coordinator") saying words to the effect that workers had received threats that the Brewery would close if CPPL was unable to negotiate a replacement of full time jobs with labour hire positions and that "the continued push to bring in labour-hire employees and casualise the workforce is the main reason cited by management when threatening workers with closing the plant";
(b) a television interview of Damien Davie by 7 News on 10 July 2017. During this interview, Damien Davie said "we've had management threaten us with shutting down the brewery if they didn't get greater labour flexibility";an article in the Courier Mail dated 11 July 2017 entitled "Brew ha ha: they gotta be jokin'". This article quoted Damien Davie saying "for some time now they've been telling us that if they don't get some concession in the way labour's structured there they'd be moving production elsewhere";
(c) a radio interview of Damien Davie by Emma Griffiths of ABC Radio Brisbane on around 10 July 2017. During this interview, Damien Davie said "we've had management say if there weren't changes to labour flexibility and changes to the way the brewery operates, it would end up going the way of the Swan Brewery in WA" and "they have a constant request to casualise the workforce and increase the use of labour hire and short term employment". The Swan Brewery was a brewery operated by Lion in Western Australia which closed in around March 2013;
(d) a United Voice media release on 1 March 2018 entitled "XXXX workers take action to keep Qld jobs local". Damien Davie is quoted as having said that XXXX was "trying to outsource jobs to interstate and overseas providers" and had "threatened to shut down our legendary Milton brewery if they don't get their way on shipping in cheap labour from over the border"; a Nine News Queensland video report on 1 March 2018. A United Voice representative is quoted as having said "The workers are always working under the threat of the brewery being shut down or volume being moved down south";
(e) an article in the Courier Mail dated 2 March 2018 entitled "XXXX staff threaten to strike over job security". Damien Davie is quoted as having said "But XXXX management is threatening to shut down our legendary Milton brewery if they don't get their way on shipping in cheap labour from over the border";
(f) a flyer handed out by United Voice representatives during a protest by XXXX workers at the Broncos vs. Cowboys rugby league "derby" on 16 March 2018. The flyer states "XXXX management is threatening to shut down our legendary Milton brewery if they don't get their way on shipping in cheap labour from over the border";
(g) an article in the Courier Mail dated 20 March 2018 entitled "Beer strike brewing for games". It is reported that "United Voice union members will walk off the job at the iconic Milton brewery just nine days out from the Commonwealth Games over concerns about conditions and production being moved south of the border" and "United Voice spokesman Damien Davie said rolling work stoppages would continue until 'XXXX comes to the bargaining table. 'It's just not right - this is a legendary Queensland beer, which should be made exclusively here in Qld, by Queenslanders', he said";
(h) a post on United Voice Queensland's Facebook page on 22 March 2018 including a link to the "XXXX Rally" event scheduled for 26 March 2018 at 11.00am. The post stated "XXXX has already started making beer in NSW and SA, and we don't want any more to be moved down south. Get behind our Queensland XXXX workers to keep their jobs local and keep XXXX on home turf";
(i) a post on United Voice Queensland's Facebook page on 9 April 2018 stating that "XXXX say their roots are in Queensland... They're racing over the border to send more work down south, and won't commit to good jobs in Queensland. When will management start to give a XXXX about their workers here in Queensland?";
(j) an article in the Courier Mail dated 10 April 2018 entitled "Union reveals XXXX email 'threat' ahead of strike at Milton brewery". It is reported that industrial action is scheduled for 11 April 2018 and refers to an email to employees which said that the "long term viability of our brewery at XXXX is dependent on our ability to be flexible and responsive to changes at a level that we have not seen in the past''. It is reported that Damien Davie said "While XXXX is saying publicly they won't leave Queensland high and dry, they have sent an email to their workers that says staying the way they are is not an option" and "That sounds like a threat to me. How can we believe their claims that they won't shut the brewery down?'';
(k) a video on United Voice Queensland's Facebook page on 11 April 2018 with caption "XXXX workers walk off for a second time to stand up for good jobs in Queensland". The video shows what appears to be a group of Employees marching down Finchley Street towards the Brewery carrying a large banner reading 'KEEP XXXX ON HOME TURF';
(l) an article in the Gold Coast Bulletin dated 12 April 2018 entitled "Strike two at Brewery". It is reported that "[t]he United Voice union, which represents the workers, claims brewer Lion is planning to create a cheaper workforce by employing contract staff at a lower pay rate through a third party. United Voice spokesman Damien Davie said they had been meeting with XXXX representatives at the Fair Work Commission, but had reached a sticking point over their move to employ more casual workers";
(m) an article in the Courier Mail dated 17 April 2018 entitled "Workers at XXXX Brewery to Walk off Job for Third Time". It is reported that "About 100 workers will stop work in three blocks tomorrow over issues relating to the use of contractors and disputed claims that the brewery owner, Lion, wants to shift production interstate." The article states "United Voice spokesperson Damien Davie said XXXX continued with threats of closing the brewery, although Lion has consistently said the Milton brewery will be maintained and that it was investing capital at the site"...Then they tell us they won't close the brewery and only want casual labour for peak periods, but email their staff saying the viability of the brewery is at stake. They've said in the media they will pay their casuals the same as the permanent staff. But they won't pay them the loading they're entitled to instead of sick leave and annual leave. We can't believe anything they say, because they are constantly saying one thing in the media, and doing another behind closed doors. If they were serious about doing the right thing by their workers, they'd come to the table and lock in their jobs and conditions through their enterprise agreement";
(n) an article in the Courier Mail dated 18 April 2018 entitled "Bosses insist they do give a XXXX about site's future". It is reported there will be a third wave of strikes "as workers claim tensions are escalating at the Milton site." It is reported that "[a]bout 100 employees will stop work over issues relating to the use of contractors and disputed claims that the brewery owner, Lion, wants to shift production interstate." It is reported that Damien Davie said that "XXXX continued with threats to close the brewery" but also that "Lion has consistently said the Milton brewery will be maintained and that it was investing capital at the site." It is reported that Damien Davie said "[w]e don't want XXXX to go the same way as the Swan Brewery in Perth, which closed five years ago under the same management we now have at Milton" and "[t]hey have already admitted to brewing XXXX in southern states, despite marketing our beer as 'the pride of Queensland'." It is reported that Irene Bell has responded to repeated claims that Lion was preparing to close the brewery by saying "[w]e are not moving any production away from the XXXX Brewery in Milton, nor have we ever referenced this; and
(o) a post on United Voice Queensland's Facebook page on 18 April 2018 stating that "XXXX workers walked off for the third time today because their bosses continue to threaten them with closing the brewery and bringing in cheap labour.... We need to keep XXXX on home turf!"
[45] Ms Wicks' evidence is that United Voice has repeatedly stated to the media that CPPL has threatened to shut down the Brewery when this is not true; CPPL has never made such a threat to United Voice or to any Employee. On 10 July 2017 CPPL published on its website a media release confirming that these alleged "threats" to close the Brewery have never been made and are false.
[46] CPPL further states that references to threats of jobs or production moving interstate, related to the use of labour hire are false and misleading. United Voice has been aware that CPPL has, for many years, manufactured XXXX beer in states other than Queensland as part of its supply chain. There are infrequent occasions when XXXX beer brewed interstate may be shipped from other locations to be sold in Queensland. This may occur because there is aged stock in other states, or there is a supply issue in Queensland (such as floods or other supply issues).
[47] Ms Wicks is not aware of any plans CPPL has to change the current spread of XXXX production across different states.
[48] In or around the time bargaining for the Proposed Agreement commenced, CPPL gave a PowerPoint presentation to employees at the Brewery. The PowerPoint presentation contained the following slide:
The long term viability of our brewery at XXXX is dependent on our ability to be flexible and responsive to changes, at a level that we have not seen in the past
Staying the way we are is not an option for the long term
3. Commercially viable with realistic wages and conditions"[3] (original emphasis)
[49] Ms Wicks did not prepare the PowerPoint presentation above in [48]. She does not, however, believe that the statement, "The long term viability of our brewery at XXXX is dependent on our ability to be flexible and responsive to changes at a level that we have not seen in the past" is a threat or reference to jobs or production moving interstate or to the Brewery closing. Ms Wicks' evidence is that the statement was intended to mean CPPL's ability to continue to attract investment and volume and keep the Brewery operating at the current level of productivity depends upon CPPL's ability to be flexible and adapt to changing market conditions. This may include, for example, if CPPL gets a short run of production for a particular customer, or if CPPL needs the ability to be able to do this with additional labour at a competitive rate in order to keep the Brewery operating at its optimal capacity.
[50] CPPL is particularly upset United Voice continues to make assertions that CPPL wishes to increase its use of interstate labour hire at the expense of the current workforce, and states that United Voice's assertions are false and misleading. Where United Voice has stated that CPPL wants to "ship in cheap labour from over the border", and it won't commit to local jobs for Queenslanders, these statements are not true. CPPL has positively stated to media outlets that these assertions are not true.
[51] CPPL asserts that in bargaining United Voice has not made a claim about keeping jobs and production local, but the media statements by United Voice, repeatedly stating that the industrial action is about "production being moved south of the border", "keeping jobs local", and plans to "shift production interstate" indicate this is a reason for the industrial action United Voice organised.
[52] CPPL has repeatedly written to United Voice explaining that the statements made by United Voice are considered by CPPL to be false and misleading. CPPL has also done so during bargaining meetings.
[53] On 12 April 2018 United Voice sent a letter to CPPL asking it to respond to the following questions:
(a) Do you intend to replace the permanent workforce with cheaper third party labour?
(b) Do you regard the continuing operation of the Milton Brewery as commercially viable?
[54] On 13 April 2018 CPPL responded as follows and then sought undertakings from United Voice:
XXXX bargaining - Intention regarding the Milton Site
We refer to your letter of 12 April 2018, in which you requested that we respond to the
Do you intend to replace the permanent workforce with cheaper third party labour?
The Company has never said that it intends to replace the permanent workforce with cheaper third party labour. The Company has repeatedly reassured United Voice that this statement is not true, including in its letters of 7 March, 13 March and 26 March 2018. Further, the Company has made statements to a number of media outlets confirming that this statement is not correct (e.g. in the 2 March 2018 Courier Mail article and in the Nine News video report on 15 March 2018).
Despite these assurances, United Voice continues to make statements to the media to the effect that the Company intends to replace the permanent workforce with cheaper third party labour. We trust that in light of this most recent reassurance, no such statements will continue to be made.
Do you regard the continuing operation of the Milton Brewery as commercially viable?
As communicated to you on a number of occasions, including in our letters of 7 March, 13 March and 26 March 2018, the Company has no plans to close the Milton Brewery and has never said that it intends to close the Milton Brewery. Despite this, United Voice continues to make statements to the media to the effect that the Company is threatening to close the Brewery. We trust that in light of this most recent reassurance, no such statements will continue to be made.
United Voice has made recent comments to the media (including in the 10 April 2018 Courier Mail article) that refer to an email the Company sent to employees which included words to the effect that "long term viability of our brewery at XXXX is dependent on our ability to be flexible and responsive to changes at a level that we have not seen in the past''. This statement was not a threat or reference to jobs/production moving interstate, to the ongoing commercial viability of the Milton Brewery or to the Brewery closing. Rather, this statement means that the Company is operating in a very competitive market and must continuously look for ways to improve the quality of our products and to produce them more efficiently and at lower cost to the customer (whilst maintaining a safe operation). Our competitors are all working to these objectives, so we must too, or risk being left behind.
[55] On 17 April 2018 United Voice sent the following response:
Re: United Voice ats Castlemaine Perkins Pty Ltd (B2018/223)
We are instructed that on 13 April 2018 your client sent two letters to our client. The first had the subject 'XXXX bargaining - intentions regarding the Milton Site' (the First Letter). The second had the subject 'CASTLEMAINE PERKINS BARGAINING - UNITED VOICE'S PROPOSED 'JOB SECURITY AND THIRD PARTY LABOUR' CLAUSE' (the Second Letter).
As to the Second Letter, we are instructed that our client will respond directly to your client in due course, except to the extent that it concerns the above proceeding.
As to The First Letter, and the Second Letter insofar as it concerns the above proceeding, our client notes that your client is again seeking to communicate directly with our client about the above proceeding. Like your client our client has appointed external legal representatives. Our client intends to deal with the above proceeding only through its appointed external legal representatives. Our client will not participate in negotiations or other discussions directly with your client concerning the above proceeding. We trust that you will appropriately communicate that position to your client.
Our client provided a preliminary response to the First Letter on 13 April 2018. Having now had a proper opportunity to obtain legal advice and consider its position, our client has instructed us to provide the following response to the First Letter.
We trust that the above is responsive to the First Letter and the Second Letter insofar as it concerns the above proceeding.
[56] Relevant to the rally outside the Brewery on 26 March 2018, United Voice has not provided assurances that United Voice and its members, officials, employees and agents will not engage in similar picketing in the future, except for the specific undertakings given relevant to 11 and 18 April 2018.
[57] Ms Wicks' evidence is that CPPL does not agree with United Voice's assertion that the demonstration on 26 March 2018 was a 'community protest". Further, CPPL does not agree with United Voice's contention that the picket would fall outside the purview of the Act's good faith bargaining provisions. United Voice encouraged Facebook users visiting its page to attend the "XXXX Rally", saying "Around 100 XXXX brewery workers will take industrial action this Monday (March 26). Support XXXX workers in their fight against job insecurity and threats of losing conditions...". In addition, during the rally participants chanted, among other things, "Liar, liar, pants on fire, why do you want labour hire?".
[58] In cross-examination, Ms Wicks agreed that the third party organisation used by CPPL for the supply of additional labour is Programmed Skilled.
[59] Ms Wicks detailed what she understood some part of the PowerPoint presentation to mean. The following exchange occurred:
"Hunt C: Well, the next sentence, in the PowerPoint presentation is: "Staying the way we are is not an option for the long-term." What does that mean?
Ms Wicks: So it means that we need to be able to adapt at a quicker rate than we have been able to do in the past and to be able to flex up more responsively than we have been able to do in the past.
Hunt C: Half of that sentence is in red, so it's attached to Mr Davie's statement. So why is half the statement in red?
Ms Wicks: I couldn't say why it's changing colour. I didn't produce the slide.
Hunt C: Because the contention is, Ms Wicks, that this is a threat?
Ms Wicks: I understand that that's the contention, yes. It's not a threat.
Ms Wicks: So what it means is that this statement, I believe, was trying to demonstrate that we need to be able to change and adapt quickly and more responsively that we have in the past and that the way things have operated in the past needs to be challenged and flexed up going forward, across a range of things, not just third party labour.
Ms Wicks: Well, we just keep, I suppose, engaging different ways of being able to become efficient with our business. I haven't really turned my mind to what that might be." [4]
[60] Mr Peter Shepherd is the Managing Director of HATAMOTO, a management consultancy company that provides security risk management and business resilience services. HATAMOTO is engaged by Lion on behalf of CPPL, in the capacity of licenced security advisers to provide security risk management services at the Brewery.
[61] Before the protest on 26 March 2018, Rob Flynn (Operations Manager at the Brewery) sent Mr Shepherd photographs of United Voice organisers and delegates to assist in identifying United Voice Queensland organisers and delegates who might be present at the protest. Mr Shepherd wore a GoPro camera at all times while observing the protest, which he used to take photographs of the events outside of the gates of the Brewery.
[62] At about 10.25am on 26 March 2018, Mr Shepherd noticed that a white ute was parked directly in front of the Brewery's gatehouse, albeit not blocking vehicular access to (or egress from) the Brewery. The white ute was parked in front of a "no standing" sign. Mr Shepherd observed two men unloading speakers and others items from the back of the ute. Mr Shepherd identified one of the men as being Glen Conroy, an Organiser for United Voice.
[63] Mr Shepherd was told by John Way, a member of the onsite XXXX security team that he had asked the men to move the ute, as it was in a "no standing" area and was impeding traffic flow from Finchley Street. Mr Way told Mr Shepherd that the two men refused to move the vehicle.
[64] By this stage Mr Shepherd observed that a crowd of approximately 30 to 40 protestors had started gathering on the road at the gatehouse entrance. The protestors were wearing a variety of union-branded shirts. On their shirts were logos or branding for United Voice, CFMEU, ETU and MUA.
[65] Mr Shepherd saw signs held up by the group of protestors displaying slogans including:
[66] Mr Shepherd recognised Mr Davie and Mr Bullock amongst the protestors and saw that they were wearing United Voice shirts. Mr Shepherd also recognised various United Voice delegates.
[67] At about 10.35am Mr Shepherd exited the gatehouse and spoke loudly to the group of protestors generally, asking them to move off the road for their own safety. He observed that the protestors took no notice of him and did not move off the road. Mr Shepherd then had the following conversation with Mr Conroy:
"Mr Shepherd: Your vehicle is illegally parked and you need to move it. Vehicles require
access through this gate and your vehicle and these people will impede this access.
Mr Conroy: Council has approved us being here - do you want to wait for a council
Mr Shepherd: If you do not move your vehicle, we will have to call the police."
[68] Mr Shepherd stated that Mr Conroy shrugged and did not respond. Mr Shepherd removed himself from the area to make several phone calls.
[69] At about 10:30am Mr Shepherd observed three white "pantec" trucks drive down Finchley Street and then up Paten Street, slowing down as they passed the gatehouse, with the drivers honking their vehicle horns. Each of the trucks had advertising on the side of the truck, displaying the words:
[70] Mr Shepherd's evidence is that at about 10.41am a delivery truck arrived at the gatehouse entrance. The truck could not enter the Brewery as the group of protesters (including protestors wearing United Voice shirts and waving United Voice flags) was on the road blocking the entrance at the gatehouse by congregating on the road in front of the gatehouse. Mr Shepherd did not speak to the truck driver. Mr Shepherd was advised by Mr Adam Howard, HATAMOTO, that he had spoken to the driver of the truck and the truck driver said he was there to make a delivery at the Brewery.
[71] Mr Shepherd observed that the group of protestors took no notice of the delivery truck and did not move away from the entrance.
[72] Mr Shepherd contacted the Roma Street Police Local Area Command and Police Assistance Line and advised them that protestors and a vehicle were impeding access to the Brewery. The police advised that a patrol car would attend the Brewery site.
[73] At approximately 10.48am Mr Shepherd and other members of the HATAMOTO security team once again asked protestors to move off the road for their safety and to allow access for incoming delivery trucks. The protestors did not move off the road.
[74] Mr Shepherd heard the crowd of protestors chanting words to the effect of:
(c) "Liar, liar pants on fire, why do you want labour hire?"
[75] At approximately 11.00am the police arrived. By this time Mr Shepherd observed that there were approximately 80 to 100 protestors gathered on the road at the gatehouse entrance. The protestors had completely blocked the entry and exit to the Brewery off Black Street by congregating on the road.
[76] Mr Shepherd saw Mr Conroy standing on the back of the ute addressing the crowd of protestors. The protestors were chanting loudly in response.
[77] Mr Shepherd observed the police move their van to the bottom end of Finchley Street. A police officer told him this was to prevent traffic from passing, due to the volume of protestors on the road and the risk to their safety. Mr Shepherd also noticed this had stopped the three pantec trucks from doing any more laps around the Brewery. Shortly thereafter a second police van arrived at the Brewery. The police started redirecting traffic at the intersection of Paten and Black Streets. At this stage, Mr Shepherd did not see the police provide any traffic management assistance in enabling vehicles to go in and out of the Brewery.
[78] Not long after the police had arrived, Mr Shepherd went and spoke to Mr Davie. Mr Shepherd said to him words to the effect of, "You and these protesters are impeding access, restricting our trade and preventing the trucks lined up from getting into the Brewery. Management are very concerned about this and would like to have something done about this." Mr Shepherd's evidence is Mr Davie did not respond but asked to have a private conversation with the police.
[79] By about 11.20am Mr Shepherd observed at least three delivery trucks queued up waiting to get into the Brewery. Mr Shepherd could not recall exactly how many delivery trucks were obstructed from entering the Brewery, because after the first two delivery trucks arrived his attention was turned to asking the protestors to move off the road and speaking with the police. Mr Shepherd believed there were at least three delivery trucks queued up waiting to enter the Brewery.
[80] Additionally, Mr Shepherd observed that the group of protesters (including those wearing United Voice shirts and holding United Voice flags) also blocked at least three delivery trucks from exiting the Brewery after having earlier completed their delivery. These trucks were also queued up inside the Brewery waiting to exit. Mr Shepherd observed that the group of protestors took no notice of these delivery trucks and did not move off the road away from the entrance.
[81] At approximately 11.30am Mr Shepherd observed the police instruct the protest organisers, including Messrs. Conroy, Davie and Bullock, to move the crowd of protestors off the road. At this time Mr Shepherd observed Messrs. Conroy, Davie and Bullock instructing the protesters to clear the road, which enabled the trucks that were unable to exit the Brewery to leave the Brewery. Mr Shepherd's evidence is that Mr Howard told him that Mr Bullock stated words to the effect of "Righto guys, now we can move". At this point, some of the protestors started to walk away from the gatehouse entrance.
[82] At approximately 11.40am Mr Shepherd saw the rest of the protestors start to pack up and move to Milton Road to continue the protest, which involved chanting and waving signs at the passing road traffic. This allowed the trucks that were queued outside the Brewery to enter the Brewery and make their delivery.
[83] Mr Shepherd observed that the delivery trucks had remained queued up outside the Brewery until the protestors had moved on. The first delivery truck that had arrived during the protest had waited for about an hour outside the gatehouse entrance before it entered the Brewery.
[84] At approximately 11.55am Mr Shepherd observed the white ute parked in front of the Gatehouse entrance, depart the area.
[85] Mr Howard was present during the rally at the Brewery on 26 March 2018. He spoke with several truck drivers while the entrance and exit to the Brewery was blocked by protestors. He described the drivers as being somewhat annoyed at the demonstration, as it affected their ability to perform their roles, but they were nevertheless compliant.
[86] Mr Howard approached Mr Bullock and said, "Do you mind yourself and the guys getting off the road, please", to which Mr Bullock firmly answered, "No."
[87] Mr Davie is a Coordinator for United Voice. He has been employed by United Voice since 2003 and prior to that was a United Voice delegate at Arnott's Biscuits.
[88] Mr Davie has attended about 5-6 meetings over 2017 and 2018 for the purpose of bargaining for a replacement agreement to the Agreement which currently applies to the workers at the Brewery. Mr Davie is the senior officer of United Voice with responsibility for the Brewery and in that capacity has been keeping a close eye on the progress of the bargaining and the associated disputes. Bargaining on behalf of United Voice members has been undertaken by United Voice delegates employed at the Brewery, together with Mr Conroy and Mr Greg Davey.
[89] In 2014 Mr Davie was involved on behalf of United Voice in bargaining with CPPL for the 2014 agreement. The bargaining for that agreement started in about July 2014. Mr Davie recalled attending a bargaining meeting in October 2014, where Ms Irene Bell, Brewery Manager, said to him words to the effect of:
"I don't want to do what I did to Swan in Western Australia, to XXXX here. I don't want to go through shutting down another brewery."
[90] In about 2012 Ms Bell was part of the management team responsible for the closure of the Swan Brewery in Western Australia and the movement of production to South Australia. Mr Davie believes that this occurred because Ms Bell, along with the other managers, considered it was it was a more cost-effective way to operate. As a result, beer brewed in South Australia is now shipped back to Western Australia.
[91] Mr Davie's evidence is that he interpreted the comments as a threat by Ms Bell that she would consider closing the Brewery if they were not able to reach an agreement that was satisfactory to the employer.
[92] During the course of bargaining in 2014, Mr Davie raised concerns expressed by United Voice members regarding job security at the Brewery. As an example, Mr Davie said on at least 2-3 occasions during the course of bargaining meetings words to the effect of:
"We want to ensure our members have the highest possible job security out of these negotiations."
[93] In response to the expressions of concern regarding job security in bargaining meetings, Ms Bell said to Mr Davie words to the effect of:
"Well you only need to look at the decrease in production and the way volume is dropping. If we don't get change, it's unsustainable."
[94] In response to this comment, Mr Davie said to Ms Bell words to the effect of:
[95] Mr Davie's evidence is that he interpreted this as a threat to close the Brewery if United Voice did not make concessions on the issue of job security. Mr Davie believed Ms Bell's comments to be a threat because he knew of Ms Bell's involvement in the closure of the Swan Brewery. Further, Mr Davie believed Ms Bell's comments to be a threat because she linked the issue of job security and production, and he considers that consolidation and decreases in production represents a threat to United Voice members' job security. Mr Davie stated that in his experience, consolidation is a gradual process that involves winding down the production levels in one location while increasing reliance on operations in a central location. Gradual decreases in volume and production are indictors of consolidation.
[96] Mr Davie stated he has, for a long time, held concerns that the job security provisions which United Voice negotiated to be included in the Agreement were being undermined by CPPL's emphasis on the need for 'flexibility' and its reluctance to engage in consultation with United Voice.
[97] As a result of conduct by CPPL in 2016 (referred to below in paragraphs 99 - 101 below), Mr Davie also holds specific concerns about CPPL's commitment to the pay parity clause in the Agreement which requires labour hire employees engaged by CPPL to be paid the same amount as direct employees.
[98] Mr Davie is currently concerned that CPPL intends to close the Brewery or alternatively decrease its production. Both of those things are a direct threat to the job security of United Voice members. Mr Davie holds these concerns as a result of his discussions with delegates and members, and due to the actions taken by management including Ms Bell's prior comments.
[99] Following the 2014 Agreement coming into force, labour hire workers were paid at the same rate as casual employees under the 2014 Agreement.
[100] Mr Davie's evidence is that on 23 June 2016 CPPL sent a letter to United Voice which purportedly advised that it would no longer be paying the 25% casual loading to labour hire workers. In cross examination Mr Davie conceded that the effect of the letter was ambiguous.[5] The letter states:
Castlemaine Perkins Brewery Engagement of Indirect Labour
During the consultation process for changes at our Castlemaine Perkins Brewery, we have spoken about the use of indirect labour under the terms of the Castlemaine Perkins Pty Limited Collective Agreement 2014-2017 (the Agreement).
This letter confirms the discussions held about the engagement and payment of indirect labour during the consultation period and the guidelines for engagement. As a business we will continue to review the effectiveness of our approach to the engagement of indirect labour and will consult with you regarding any adjustments that may be required under our consultation obligations.
Appendix E, Clause 2 of the Agreement, sets out the terms under which indirect
We envisage that our use of indirect labour will be for coverage of a short term nature and cover the following circumstances
Indirect labour will not be used for short term sick leave cover (less than 3 shifts/3 days), unless there are no permanent team members available to perform overtime.
It is the intention to utilise indirect labour across the following roles -
Number of indirect labour employees to be engaged -
The number of indirect labour workers will vary depending on the reason for which coverage is required.
The length of engagement for indirect labour workers will vary depending on the reason for which coverage is required.
The nature of engagement of indirect labour aligns to Contract of Employment clause 19.3 in the Agreement. This provides for a casual loading of 25%. As the Agreement is silent on the application of the 25% casual loading, the Food, Beverage and Tobacco Manufacturing Award will determine that the 25% casual loading will provide an all-purpose rate.
The applicable rates are set out in Clause 25- Wages Rates and Increases. The appropriate classification will initially be Level 2. Where an indirect labour worker has the recognised skills to move into a higher classification level, the rates of the relevant classification will be used.
All allowances, shift penalties and overtime incurred will be paid in accordance with the appropriate terms set out in the Agreement. Where allowances are expressed as an annualised amount in the agreement, for the purposes of casual engagements these allowances will be converted to an equivalent hourly amount based on annual ordinary hours recognised as 1,820 hours per annum (35 hours x 52 weeks).
For clarity allowances will not form part of the all-purpose casual rate.
The use of temporary employees under the Agreement at Clause 20 - Temporary Employment has been common practice at Castlemaine Perkins Brewery. Temporary employment will continue as is currently the practice over peak periods and to cover long terms absences of our existing permanent workforce. These employees may also be used to cover other types of work as detailed above under 'type of work contemplated' if business requirements are able to be met.
[101] Mr Davie's evidence is that the position articulated by CPPL in its letter of 23 June 2016 is consistent with the position they have adopted during the current round of bargaining and undermines the effectiveness of the pay parity clause. Mr Davie also considers that it may also amount to a breach of the Agreement.
[102] At about the time that bargaining for the replacement agreement commenced, CPPL gave a PowerPoint presentation to employees of the Brewery where it set out its bargaining position. In the PowerPoint presentation CPPL emphasised the need for 'flexibility'. The PowerPoint also identified that the volume of XXXX produced at the Tooheys brewery in NSW is higher than the amount produced at the Brewery and that this gap is widening.
[103] Mr Davie's evidence was that in the course of bargaining for the Proposed Agreement, in about October 2017, CPPL distributed a seven page flyer to the employees at the Brewery (Flyer). Page three of the Flyer purportedly included words, or words to a similar effect to that of the PowerPoint presentation at [48]. CPPL denied that a seven page Flyer was produced and neither party was able to provide the Commission with a copy of the Flyer.[6]
[104] During the bargaining meeting that Mr Davie attended, CPPL has not identified the specific "changes" that the Brewery is facing.
[105] On about 3 April 2018 CPPL sent an email to employees that included the extract of the PowerPoint presentation at [48] and described the actions taken by United Voice on 26 March 2018 as "unlawful". It also advised employees that CPPL "has applied to the FWC to issue a good faith bargaining order" to "focus [United Voice] on returning to constructive negotiations." The email is set out below:
"On Monday 26 March, United Voice members stopped work & left the site from 11am to 12pm. A rally was organised by United Voice organisers at the entrance of the Castlemaine Perkins Brewery & attended by other supporters. Media were also present.
The company is very concerned with some of the actions that were taken on this day eg. restricting access to/from the site, by United Voice organisers & other supporters. In our view, we believe these were unlawful actions as provided for under the Fair Work Act's 'good faith bargaining' framework.
The company recognises your right to take protected Industrial Action - this is only if it is performed in a manner that complies with the Fair Work Act's guidelines. In order to address the concerns we hold regarding actions taken on 26 March, and the ongoing & misleading statements made by United Voice to the media, the company has applied to the FWC to issue a good faith bargaining order. The outcome of this order (if it is issued) will be to ensure that United Voice do not engage in any similar behaviours moving forward & focus them on returning to constructive negotiations.
There was a negotiation meeting scheduled for 4 April, however this was been cancelled to focus on operational matters. Further meetings are still to be scheduled.
Commissioner Hunt from the Fair Work Commission has offered numerous times to meet & assist the parties. United Voice have repeatedly advised they do not wish to participate in these meeting.
Lion, United Voice and CEPU representatives are due to report back to Commissioner Hunt on 23 April on updates/ progress since our initial meeting at the FWC on 16 February.
Our focus remains on working with United Voice/CEPU to negotiate a new Enterprise Agreement which helps set us all up for the flexible and agile site that we need to be into the future."
[106] Over the course of the current bargaining Mr Davie has attended about 12 meetings with United Voice delegates who work at the Brewery. Mr Davie stated that concerns regarding job security have been raised by delegates at about 50% of the meetings that he has attended regarding the Proposed Agreement.
[107] Delegates have reported to Mr Davie that the Brewery is operating at about 50% capacity. During a meeting with delegates on 18 January 2018 Mr Davie asked the delegates if the figures of production and production at other CPPL breweries could be obtained. Mr Davie said that Mr Justin Lane, delegate, responded with words to the effect of:
"We can't get a hold of these figures any more. They used to make them available, but they don't now. I can tell you though that we are only operating at 50% capacity."
[108] Mr Davie said Mr Steve Romans, delegate, then said words to the effect of:
"We only bottled beer on three out of the five days we worked last week. It was quiet in the lead up to Christmas and it was a quiet summer."
[109] Mr Davie holds concerns that CPPL is withholding information from delegates regarding the current operating capacity of the Brewery.
[110] Mr Davie considers that if the Brewery was operating at capacity it would be operating 24 hours a day, seven days per week. If the Brewery is only operating five days per week, it is not operating at capacity. If the Brewery is only bottling beer on three days per week, it is not operating at capacity. Mr Davie's evidence is that summer, and in particular the weeks before Christmas are the peak periods for the Brewery. In the past, the Brewery has operated at capacity over this period.
[111] Mr Davie is not aware of any explanation for this decrease in production at the Brewery and it can be contrasted with other breweries around the country that are operating at capacity. For example, the Tooheys brewery in Lidcombe, New South Wales, was running at capacity in the weeks before Christmas.
[112] Mr Davie is aware that there has been a series of redundancies at the Brewery that have resulted in the loss of 40 positions over the past three years, including:
(a) in May 2015, approximately nine positions made redundant - two of the employees were redeployed, while seven employees were terminated due to redundancy;in 2015, a further two positions were not filled when the employees performing the roles departed;
(b) in March 2016, 27 positions in packaging and trades were made redundant; and
(c) in December 2016, a further two positions in brewing were made redundant.
[113] In relation to comments made by CPPL to the media that it was hiring five new employees, Mr Davie's evidence is that these new employees are not being employed to fill newly-created roles.
[114] Mr Davie stated that delegates had also reported that Ms Bell has engaged in 'dog whistling' at the Brewery including by making comments to the effect that staffing levels at the Brewery are unsustainable and that the Brewery is not viable. Mr Davie regarded the email of 3 April 2018 set out at [105] as an example of "dog whistling".
[115] On 6 March 2018 Mr Davie attended a bargaining meeting with delegates and representatives from CPPL. During the course of the meeting the parties discussed the use of labour hire employees and the obligation on the employer to consult with employees and their representatives regarding the use of labour hire employees. In the context of this discussion, Ms Bell said words to the effect of:
"It's a tough beer market, we can't continue on like this. We just want what the other breweries have and what other manufacturers have."
[116] Mr Davie said he interpreted Ms Bell's comments as a statement of CPPL's position that if it cannot access cheap casual labour, then ultimately the Brewery will shut down. In response to Ms Bell's comments, Mr Davie said words to the effect of:
'We want good secure jobs for our members and for future Queenslanders who may come to work here.'
[117] Mr Davie stated that United Voice has previously attempted to highlight its members' concerns regarding job security, including by publishing these concerns through various media outlets. For example, in early July 2017 United Voice put out a media release regarding job security concerns that was featured in news reports on www.news.com.au and on 97.3FM.
[118] Mr Davie's view is that there was a need for public action in relation to what he perceived to be CPPL's attempts to undermine job security because of the high regard in which XXXX as a brand is held by the Queensland community.
[119] Mr Davie considers XXXX represents values such as teamwork and mateship, evidenced by CPPL's support of the Australian Commonwealth Games Team. Further, CPPL relies on its ties to Queensland as part of its corporate identity, as evidenced by its long standing supports of the Queensland Maroons State of Origin team.
[120] Mr Davie believes that Queenslanders expect that CPPL would treat the Queenslanders that work for it fairly and do everything it can to maintain the strong links between XXXX and the Queensland community.
[121] In circumstances where CPPL was not doing everything it could to maintain the relationship with the Queensland community, including by maintaining the relationship with its workers, Mr Davie thought, and United Voice thought, that the community had an interest in knowing about it and being given the opportunity to become involved in a public campaign to secure as far as possible the production at the Brewery of as much XXXX as possible, thereby assisting in the maintenance of job security.
[122] During a bargaining meeting at the Brewery on 20 March 2018 there was a discussion regarding the supplementary labour clause. Ms Wicks said words to the effect of:
"The clause you are pushing for restricts our ability to use labour hire and, therefore, it is not allowable".
"In no way, shape or form do we intend to bargain for non-allowable content. We are purely trying to protect members' job security".
[124] The bargaining representatives went on to discuss the rates of pay that labour hire employees would be entitled to. Mr Davie expressed his view that labour hire employees should be paid the same rates as Employees under the Proposed Agreement. Mr Davie stated Ms Wick's response was that CPPL would agree to pay labour hire employees at the permanent rate. Mr Davie's evidence is that CPPL's proposal to engage labour hire at a rate 25% less represents a threat to United Voice members' job security.
[125] The bargaining representatives proceeded to discuss three other clauses in the Proposed Agreement. Mr Davie does not recall any further discussions regarding the operation of the contractor clause during that meeting.
[126] Mr Davie attended the bargaining meeting at the Brewery on 11 April 2018, which was convened by me and attended by representatives of CPPL, United Voice, the CEPU and employee representatives.
[127] At this meeting discussion included the concerns held by UV in relation to the supplementary labour clause and job security concerns of UV's members. Mr Greg Davey said words to the effect of:
"We want to make sure people are being trained properly, we want to make sure if doesn't stifle career progression, and we want to make sure that the labour hire employees are paid the same as the permanent and casual employees".
[128] In response to questions about how CPPL intended to use third-party labour, Ms Wicks indicated that CPPL wanted to use third-party labour whenever it needs to and wants to pay them at the rate of pay for permanent employees.
[129] In response, Mr Davie stated words to the effect of:
"This means the labour hire employees will receive less than what they would be paid if they were employed by XXXX. In circumstances where the permanent employees receive benefits such as sick leave and annual/eave, and the casual employees receive a 25% loading in lieu of these entitlements, the labour employees are significantly cheaper for the company to engage"
[130] During the course of the bargaining meeting, while the parties were discussing consultation, Ms Wicks indicated that CPPL did not want to get caught up in endless consultation regarding labour hire.
[131] United Voice agreed that where CPPL consulted with United Voice prior to engaging labour hire employees in a particular area of the Brewery, it would not need to engage in further consultation on every occasion that it engages labour hire employees in the same area. It was further agreed between the parties that the company would need to consult with United Voice prior to using supplementary labour in areas of the Brewery where they had not been previously engaged.
Cross-examination of Davie and questions from the Commission
[132] Mr Davie stated in cross-examination that despite CPPL's assurances in the media that the Brewery is not at risk of closing, he does not believe CPPL. This belief is held on the basis of the closure of the Swan brewery, the "dog-whistling" that Mr Davie says occurs on site, and the presentation and email sent to Employees at [105]. During the hearing I informed Mr Davie that I would not accept evidence of supposed "dog-whistling" occurring at the Brewery without any specific examples provided by him.
[133] The following was put by CPPL and by me to Mr Davie:
"Mr Follett: You would accept, wouldn't you, that the only person or persons who actually know whether they intend to shut the brewery is the company who operates the brewery? --- Yes.
"Mr Follett: So the only person that actually knows has denied it to you repeatedly? --- Yes.
Mr Follett: And the only reason, therefore, that your statement to the opposite effect could be not false or not misleading is if the company was lying or not telling the truth. That's correct, isn't it?" --- Correct.
Mr Follett: You have known that all along. That's the logical consequence?
Mr Davie: So all along the company has, throughout negotiations, referred to the long-term viability of the brewery.
Mr Davie: That speaks to if the brewery is going to exist.
Mr Davie: You can't have it both ways. You can't say one thing to the public and then say to employees, "We need flexibility otherwise it's a long-term viability."
Mr Follett: I will leave it for the Commissioner to make the appropriate interpretation of that statement and to draw the juxtaposition that you seek to draw, but my question to you was you've known all along that the logical consequence of your position was your statements are false unless the company is not telling the truth. Correct?
Mr Davie: No, no. I believe the long-term viability statements - I believe that the company and the shift in production over time - that the closure of the brewery is serious.
Mr Follett: I'm not interested in what your state of belief is, Mr Davie, and this is really the problem for you. I'm interested in what you say the company's position is? --- Mm-hmm.
Mr Follett: You say the company threatens to or intends to or wants to shut down the brewery? --- Yes.
Mr Follett: They have denied it to you and the question I have asked you twice now, and I'll repeat a third time, is you have known all along that the logical consequence of the position you have adopted is that your statements are false unless the company has not been telling the truth to you? --- Correct.
Hunt C: ...Is it that you don't think Ms Bell would be the ultimate decision-maker if that decision was made?
Mr Davie: What I would say, I think, is that we raised concerns about the brewery closing based on the long-term viability, based on the "I don't want to do what I did at the Swan Brewery" talk and then yet it had been refuted. Those exact words that we had had issue with were redistributed and talked about. The fact is that the Swan Brewery scenario is very, very similar to the Castlemaine scenario.
Hunt C: Well, you have got concerted statements that there are no plans to close the brewery? --- Mm-hm.
Hunt C: You agree that that has been stated to you? --- Yes.
Mr Davie: I don't, because they keep circulating about the viability.
Hunt C: Right. So is it that you don't believe Ms Bell or that you believe there are people senior to her that would make those decisions? --- Correct.
Mr Follett: In terms of the evidence to support that view, can I take you to paragraph 99 of Ms Wicks' statement - page 99. It's a newspaper article of 10 July 2017. Do you see that? -Yes.
"United Voice coordinator Damien Davie said management from Japanese controlled parent company Lion notified staff in June the Castlemaine Perkins brewery in Milton would be shut down."
Mr Follett: That's not even a threat that it's shutting down. That's an actuality that it is shutting down. Who told you that?
Hunt C: You nodded, but you'll need an answer for the record?
Mr Follett: You said it was a misquote. Did Lion notify staff in June that the Milton brewery would be shut down? --- No.
Mr Follett: Do you recall making any suggestion to anyone that there was some sort of meeting in June 2017 about the brewery shutting down or may be shutting down? --- Yes.
Mr Follett: I asked you whether you recalled any meeting in June 2017 where that might have been said and you said, "Yes", but what meeting was that?
Mr Follett: All right. At page 106 of Ms Wicks' statement, a Courier Mail article. You see that? - Mm-hm.
"But United Voice coordinator Damien Davie said a secret source inside the XXXX brewery had confirmed management had plans to close the heritage-listed masonry building."
Mr Follett: You can't recall. Is it you can't recall because there was no secret source or you can't recall because you can't recall?
Mr Davie: So there were some discussions around the brewery closure, but I can't recall. It was back in '17.
Mr Follett: You've got a misquote and you've got this piece of - I don't even know how to describe it. You've got the PowerPoint presentation and you've got the email?
Mr Davie: So what was told is that it would be scaled back to a craft brewery and I suggest maybe contacting Mr Tom Stone...
Mr Follett: Someone told you that they were told that the brewery was going to be scaled back to a craft brewery? - Yes. An overflow...
Mr Follett: So we've got an unidentified person telling an unidentified person telling you and you're using that as the basis for your view that you shouldn't believe the company. Is that right? - No.
Mr Follett: Can we put that piece of information to the side as a justification or evidence for your assertion? -Yes.
Mr Follett: All right. So we're left with the email and the PowerPoint presentation. The email just replicates the PowerPoint presentation. Correct?
Mr Davie: And Ms Bell's previous statements about not wanting to do what she did at the Swan Brewery.
Mr Follett: I see. We've got "not wanting to do what I did at the Swan Brewery" and the one line in the PowerPoint presentation? - I think there are some other lines in the...
Mr Follett: And presumably other references to flexibility; is that what you're looking for?
Mr Davie: So there is references to the drop in production through either declining volume in their SWOT analysis...
Mr Follett: Yes? -You know, it talks about opportunities to have a positive future.
Mr Follett: Yes? - It's certainly the same message.
Mr Follett: Right. So the same message is that the only negative future available is a closure of the brewery? - Correct.
Mr Follett: Because you have explained previously the reason why you don't believe the company is because the available evidence is to the contrary. Do you remember saying that? - Correct.
Mr Follett: The available evidence we've got is what I've just taken you through. That's correct, isn't it?
Mr Davie: No. There is also 40 redundancies over the last three years, a major drop in production and constant dog whistling about the brewery closing.
Mr Follett: What has any of that got to do with a threat from the company - not your belief, a threat from the company - to shut the brewery?
Mr Follett: Does that mean every single redundancy at every single organisation means that that organisation is intending to shut down its operations? -Not at all --- It's a logical conclusion, isn't it?
Mr Davie: But what I would say in our experience from manufacturing, is the more that start to flow, it starts to head a certain way would be our experience.
Mr Follett: Yes, so you've just worked yourself up into a lather in your own state of mind and then you extrapolate that over to the company and you say this is the company's stated position. That's what you've done, isn't it? - No." [7]
[134] Relevant to Mr Davie's repeated reports to the media that CPPL intends to "ship labour up over the border" or words to that effect, the following exchange occurred:
"Mr Follett: You want me to take you to some statements?
Mr Davie: No, well, I'm just simply saying that statement (indistinct) their interstate labour hire provider program.
Mr Davie: Which is not a Queensland company and the company has clearly stated that they want to increase the use of labour hire employees.
Mr Davie: The Commission has been there when we've talked through - they just don't want it for sickness, long service leave, that it's more than that. It mightn't be in the statement but it's fact.
Hunt C: Mr Davie, you repeatedly (indistinct) saying that they're going to bring labour hire across the border. What does that mean?
Hunt C: So they're going to bring labour hire people, are they, from?
Hunt C: In a lot of the [media] reports here it says they're going to bring labour hire across the border?
Mr Davie: Yes, and that's where it refers to the company, not actual people.
Mr Follett: So if the labour hire company from across the border use Queensland employees, is that still a problem, is it?
Mr Davie: It's the same labour hire company they used in Victoria with CUB. It's renowned for it.
Mr Follett: I thought all your statements were about keeping Queensland jobs for Queenslanders? -Yes, we are.
Mr Follett: Well, if you increase labour hire from across the border but you use Queensland employees of that labour hire company, then it's got nothing to do with Queensland jobs for Queenslanders, has it?
Mr Davie: No. If you want to quote my stuff back to me, it's good jobs for Queenslanders, which means directly employed by the brewery. No one thinks a labour hire job is a good job.
Mr Follett: So when you say cheap labour from over the border, that doesn't mean employees from over the border? - No.
Mr Follett: It doesn't mean labour hire employees of Programmed from across the border ? --- No.
Mr Davie: No. It means company - labour provided by a company from over the border.
Mr Follett: Yes, well, Lion is over the border. Lion owns CPPL and Lion is owned by Japan? - Yes.
Mr Follett: Should we not have any jobs from those people either? -(Indistinct) no.
Mr Follett: No, so what's the issue with Programmed, Programmed being a company from across the border? What has that got to do with anything?
Mr Davie: It's simply stating the fact of where the company is from."[8]
[135] Relevant to the rally in front of the Brewery on 26 March 2018, Mr Davie agreed that the ute owned by him was driven to the Brewery and parked near the gates of the Brewery. Mr Davie obtained a lift from somebody from the United Voice office. Mr Davie agreed that in promoting the rally, including a Facebook post, a large number of people were expected. Mr Davie agreed that he did nothing to ensure the protestors stayed only on footpaths and did not block the passage in and out of the Brewery.
[136] Mr Davie agreed that during the rally he saw delivery trucks unable to enter the Brewery due to the protestors on the road.
[137] Mr Davie agreed that United Voice has refused to provide to CPPL an enduring undertaking, until the Proposed Agreement is made, that United Voice will not encourage or incite obstructive protests at the Brewery.[9]
[138] Ms Bassingthwaighte is a solicitor employed by Hall Payne Lawyers. Ms Bassingthwaighte's evidence is that, in her view, the witness statement of Ms Wicks dated 19 April 2018 "does not annex all of the correspondence which has been sent by or on behalf of United Voice concerning that part of the bargaining process relevant to this matter".[10] She submits that a complete set of those letters is attached to her statement. These are extracted as relevant below.
[139] Ms Bassingthwaighte's evidence is that, in response to the letter of CPPL on 13 March 2018, United Voice responded as follows:
We are in receipt of your letter dated 13 March and received at 12:29 pm.
It is our view that the matters raised in your letter would better be resolved at meetings between the parties. We have already proposed to you specific meeting dates of 26 March, 17 and 18 April, and proposed that we are able to meet at other times suitable to you. You have not responded to our proposed dates or provided any other times to meet. We encourage you to do so.
Conference before Commissioner Hunt on 15 March 2018
There was no agreement of any kind that the Company would not oppose United Voice's protected action ballot in exchange for the union agreeing to attend a FWC conference on 15 March. We reject that assertion in the strongest possible terms.
As previously advised, the union had intended to attend that conference on 15 March, until the Company stated that it intended to misuse the process by seeking recommendations about the taking of protected industrial action.
We reiterate our view that the FWC has been helpful in assisting the parties to agree upon a process, but we believe that in order to move forward, the parties need to address content matters directly between themselves.
Response to revised supplementary labour clause
We agree that we are close to reaching agreement on a clause. We see no utility in a time consuming and adversarial process of negotiation by correspondence. In our view, the parties should meet to discuss, as mentioned above.
The Company's concerns regarding good faith bargaining
United Voice has at all times bargained in good faith and will continue to do so.
As summarised above, United Voice has proposed a number of meeting dates and times and the Company has not responded, or agreed to meet.
We have already rejected your assertion that United Voice agreed to attend a conference in exchange for the Company not opposing a protected action ballot.
You are aware of the union's genuine and long held concerns about our members' job security. Those concerns stand apart from the current bargaining process. Your attempts to conflate those matters and recent media coverage with bargaining issues is misconceived.
We reserve all of our legal rights in relation to any applications or orders or directions sought by the Company. In our view, the Company's inference that you may seek directions or orders, or our non-consensual participation in conciliation, will not assist with any momentum, and will almost certainly retard progress.
We are encouraged by the Company's view that there has been recent positive progress in negotiations. We disagree that the parties require external assistance to work through the outstanding issues.
We request that you respond to our suggested dates for meetings directly between the parties so that we can continue negotiations.
[140] Ms Bassingthwaighte's evidence is that United Voice wrote to CPPL regarding future bargaining meetings and other matters on 16 March 2018:
We agree to meet with you on 5 April, 17 April and 18 April. We would like to meet with you on 27 March, instead of 26 March. Any other times and dates can be arranged by contacting Mr Conroy.
We disagree that the correspondence you have cited in any way suggests any agreement for United Voice to attend a FWC conference in exchange for the Company not opposing our protected action ballot application.
United Voice denies that we have 'reneged' on a commitment to attend a s 240 conference.
We reserve our rights in relation to any proceedings either the Company or the Union may commence.
We note your queries about particular wording of a sub-clause being discussed at a meeting on 7 March, and whether that particular wording dealt with 'sick-leave'. You were shown that the particular wording did not deal with 'sick leave' at all and you were invited to suggest any alternative suggestions or wording. You subsequently provided alternative wording, which did not mention 'sick leave'. The union has since provided further alternative wording.
The particular wording of the sub-clause being discussed on 7 March, no longer appears in any current drafts under discussion at this point in time.
We believe there is limited utility in engaging in lengthy exchanges of correspondence about potential variations of verbiage of sub-clauses.
However, if you have any revised proposals to forward to us between meetings, we will be able to consider them.
We are hopeful of concluding a complete agreement with you, which includes management engagement with, and respect for, the workforce."
[141] United Voice wrote to CPPL on 19 March 2018 regarding future bargaining meetings and other matters:'
Please contact Mr Glenn Conroy directly to arrange enterprise bargaining meetings.
We disagree with your inference that our obligations to disclose relevant information in a timely manner extend to our being expected to engage in negotiations by written correspondence."
[142] On 26 March 2018 Ms Bell wrote to United Voice raising concerns about the bargaining process. As part of her evidence Ms Bassingthwaighte referenced the following letter in reply from United Voice to CPPL:
May I further observe, with respect, that your letter is somewhat rambling and discursive. It would not profit either party for me to attempt to respond paragraph by paragraph. There are significant factual disputes about a number of the matters set out in your correspondence, particularly the content of various conversations. In addition, your reiterations of public comments made by the Union are generally shorn of the context in which they were made. It is less than clear that some at least of the matters raised by you are concerned with good faith bargaining requirements.
Having said that, I will endeavour to engage with the broad themes of the stated concerns, which I understand to be summarised in the 3 points under the heading "Good Faith Bargaining Concerns" on the fifth page of the letter, as well as addressing the requests made of the Union at the conclusion of the letter.
As you know United Voice is a representative organisation. Public advocacy for our members is fundamental to the Union's representative role. It is therefore unsurprising that the Union has been active in the media in relation to XXXX as an employer of members of the Union.
The Union has for several years held concerns in relation to the job security of its members employed by XXXX at Milton. Those concerns are reasonably held including because of comments previously made by you. The union is not reassured by any statements you have made to us, or publicly. We do not believe you as the available evidence is to the contrary. We continue to hold our concerns and will continue to advocate around them in the best interests of our members, as we are duty bound to do. (emphasis added).
We have previously expressed concerns that Lion has sought to conflate our long held job security concerns with particular representations made during bargaining. Lion appears to have some difficulty in appreciating the difference between the two matters. The union sees the former (expression of our job security concerns) as an articulation of a problem about which the union has longstanding and genuinely held views, whereas the Union's proposal for a job security clause is seen as part of a potential solution.
While there is a relationship between the two matters, it is the proposed job security clause that is being diligently pursued in the bargaining process. Lion is not obliged to agree to the proposal and neither is the Union obliged to abandon it. Public representations about the history of job security and the possible future intentions of Lion do not in any way undermine the bargaining process which continues, with recent amendments to the job security clause being proposed by Lion.
No public statements by the Union about job security and the use of labour hire have been knowingly or recklessly false.
Even if there is doubt about the truth of any Union statements, not all representations are actionable in the good faith bargaining orders jurisdiction. That jurisdiction may be concerned with misrepresentations "in relation to the negotiations, or the position of another party in those negotiations", as discussed in Jupiters Limited v United Voice [2011] FWA 8317 at [40], but that is not the case here
A misrepresentation, if one exists, that does not relate to the parties' bargaining positions, for example a public criticism of an employer for having a poor safety record, is not actionable in the good faith bargaining orders jurisdiction. Our public statements, when viewed in context, are analogous to the latter category rather than the former. They form part of the public exchange of views on a matter of public interest, a process in which Lion is of course free to participate.
To the extent that its officials may have publicly spoken about the bargaining, United Voice has done no more than exercise its right to criticise XXXX.
United Voice statements to the media have not breached the good faith bargaining requirements of the Act. The union will not, and cannot be required to, provide the undertaking sought in the first of your concluding requests.
Bargaining Delay and Failure to Provide Relevant Information
[143] Regarding Ms Bell's various correspondence about the bargaining process, United Voice sent the following letter to CPPL in further response on 10 April 2018:
Re: Your correspondence dated 13 and 26 March 2018 and email dated 6 April
I refer to the company's letters of 13 and 26 March 2018, as well as Ms Docksey's email to Mr Conroy dated 6 April 2018.
We note that a number of your 'requests for information' were questions about the wording of a particular draft sub-clause which had already been superseded by later drafting of the same particular sub-clause.
We note also that a number of your 'requests for information' are related to wording of draft sub-clauses that the Company has provided to us. We believe also, that some of the 'requests for information' form questions of which you already know the answer.
We note also that the Company has altered its position throughout recent correspondence. For example, on 7 March the Company wrote to the Union and proposed:
"However, nothing in this agreement prevents the employer from engaging supplementary labour in addition to permanent staffing numbers".
On 12 March, the Union wrote in reply and agreed with the Company's proposal, save for the inclusion of a comma:
"However nothing in this agreement prevents the employer from engaging supplementary labour in addition to permanent staffing numbers".
Despite the provisional agreement, the next day, on 13 March, the Company altered its position, and proposed:
"Nothing in this agreement prevents the employer from engaging contractors and labour hire".
The new proposal was accompanied by a demand from the Company for the Union to respond by midday the next day, 14 March:
"We note also, that the Company appears to infer, that the wording of a clause, or particular sub clauses, regarding job security and the engagement of third party labour, is a threshold issue, or a negotiating roadblock, or one of particular priority for United Voice. United Voice does not hold that view. The clause represents just one potential component in an overall bargaining package. It is the Company which is elevating the relative priority of that clause.
You should particularly note that, during previous discussions, the Company indicated a preference for consolidating the provisions about consultative requirements. It is very important for our members to consider how the provisions about job security and supplementary labour interact with the consultation obligations ultimately prescribed in the complete agreement. The Union is not averse to considering that approach.
You are aware, that the Union objects to proposals by the Company to engage third party labour, performing work covered by the agreement, on rates lower than applicable to directly employed labour performing the same work. For example, you are aware that the Union's position is that, if a casual employee of a labour hire firm, performs work covered by the agreement, they should be paid no less, than the equivalent rate paid to a directly employed casual employee performing the same work. I am sure that you appreciate how the paying of inferior rates in that circumstance could negatively affect our members' job security, and how a pay parity clause could alleviate that risk. Pay parity clauses of that kind are clearly permitted under the Fair Work Act.
I do not accept that the Union has failed to respond to requests for information in breach of the good faith bargaining requirements - the answers below are not new ones.
As you know, the Union has sought to avoid "negotiation by correspondence" and instead, discuss the matters that you have raised at bargaining meetings.
In any event, I provide below the Union's answers to what I understand that you have characterised as the outstanding "requests for information", in the form of 4 questions.
We request your advice as to whether the Company intends to replace permanent staff at the Brewery with casuals, fixed term employees, contractors or labour hire, during the life of the agreement. If so, please provide examples of how your intention would work in practice.
"It is understood that the preferred method of employing people in the business is through permanent full time and part-time employees...".
As you are aware, the wording of your proposed sub-clause does not prevent the company from engaging contractors or labour hire. You are also aware that the similar wording the Union proposed also does not prevent the company from engaging contractors or labour hire.
We request your advice as to whether you think there may be any material difference in effect between the Union's proposed wording and the Company's proposed wording, of that particular sub-clause. If so, we request details of the difference in effect and examples of how it would operate.
We have been of the understanding that the Company wants to have a permanent workforce, which is supplemented by additional staff during peak demand periods. Please advise if our understanding in this regard is correct. If our understanding is not correct, please advise us of the circumstances where the Company intends to engage additional, or alternative staff.
You have previously suggested a defined term "third party labour". We have no significant objection to confining the supplementary labour clause to matters relating to "third party labour". We do however see benefits for all parties in the enterprise agreement mandating that there be consultation about the engagement of intermittent labour, and about its effect on the job security of our members and the best practice operation of the Brewery.
If you consider any other "request for information" to be outstanding, please let me know. Otherwise, we now invite you to now formally withdraw that aspect of your good faith bargaining orders application, so that the parties may concentrate on the true controversy between them in that proceeding.
Further, we are prepared to agree to a number of your recent proposals about the wording of the supplementary labour clause, if you agree to the maintain pay parity. On that basis, we propose a further revised clause. Please respond and tell us whether you agree to the attached clause, being included in replacement certified agreement."
[144] United Voice wrote a further letter to CPPL on 12 April 2018 in response to Ms Bell's previous correspondence. It provides:
I have some doubts as to whether our indulging your chain of correspondence is the best approach for progressing negotiations. We note your negotiating proposals about the verbiage of particular sub-clauses have changed yet again. This is a matter of record and we reserve our rights in relation to your conduct in this regard.
The Union has confirmed that the particular wording of a draft clause, and sub-clauses, do not impose prohibitions on the Company engaging supplementary labour, as defined. The proposed wording requires the employer to consult in defined circumstances. You already know that.
As we have stated, we believe that the Company has elevated the relative priority of this clause, within the negotiations. We are concerned that your attention to this clause is now retarding progress on some of the other matters at issue in the bargaining.
On that basis, we suggest that it may be beneficial to devote our attention to some of the other matters, and return to the issue of job security and third party labour at a later point in the negotiations.
I also suggest that it may be beneficial for the parties to limit the excessive diversion of exchanging detailed letters. I am concerned that the correspondence you compose and send to us is suffering from a deteriorating clarity of expression, and its content is descending into impertinence and farce.
We feel that your continuation of this approach may retard sensible progress in negotiations. We invite you to consider adopting a more mature, professional approach to crafting your letters.
We are not minded to agree to any of the conditions set out in your letter."
[145] On 17 April 2018, United Voice wrote to CPPL regarding United Voice's position on clauses relating to job security and third party labour:
Re: Castlemaine Perkins Bargaining -job security and third party labour
United Voice remains of the view that negotiations about these particular issues would be best deferred for a period, and priority diverted to some of the other matters at issue between the parties.
A break would allow the parties to take some constructive time to reflect on our respective positions and how they might best be reconciled in a certified agreement.
Note that, in our letter of 10 April, we provided a proposal, (with an attached clause), which was subject to the Company maintaining pay parity. We note that your letter of 13 April states that the parties have different views about pay rates and how this applies to casual loadings.
In order that you might better understand our proposal of 10 April, the Union's position is that an employee of a third party employer, such as a labour hire employee, should be paid no less than a directly employed employee would be paid, if they were paid as per the certified agreement, for performing the same work. If the labour hire employee was a casual employee, then that employee, under our proposal, would be paid no less than a directly employed casual employee would be paid. If the Company agreed to that principle, the Union would agree to sub clauses 10.5.1 and 10.5.2, as set out in our document dated "10/4/18".
There would be a number of different ways of expressing what we have set out in 10.5.3, which is essentially about pay parity.
We consider that your requests for written confirmation form a proposal for a 'side arrangement', to operate in conjunction with a certified agreement. Please note that we do not have an 'in principle' objection to that form of arrangement, and we do not accept that proposals for those type of arrangements could properly form part of the subject matter of either a s.240 conference, or an application for bargaining orders.
As stated above, we believe the parties should have a break from the focus on negotiating the particular issues of job security and third party labour, and turn our attention to some of the other matters at issue."
[146] On 18 April 2018, United Voice wrote to CPPL regarding CPPL's allegations that United Voice had breached the good faith bargaining requirements:
Re: United Voice ats Castlemaine Perkins Pty Ltd (82018/223)
We refer to your correspondence of even date. We are instructed to respond as follows.
We trust that the above is responsive to your correspondence.
On another note, our client invites your client to discharge its obligation under section 228 by responding in a timely manner to our client's invitation for the parties to concentrate on the other matters at issue for the time being, and return to the job security clause later."
[147] Based upon the alleged past and present conduct of United Voice, the substance of the bargaining orders sought by CPPL can be broken into two categories:
(a) orders restraining United Voice from organising, procuring, etc any obstructive rally, protest or picket at the Brewery; and
(b) orders restraining United Voice from making, publishing or disseminating false, misleading and/or unfair statements to the media.
[148] On 20 March 2018 United Voice notified CPPL of its intention to organise and have Employees who are its members take "protected industrial action" consisting of two consecutive 30 minute stoppages of work at the Brewery from 11.00am (until 12 noon) on 26 March 2018, along with an indefinite ban on overtime.
[149] The industrial action occurred as notified. Coinciding with what was, in effect, the one hour stoppage of work at the Brewery on 26 March 2018 was a rally, protest or picket outside the Brewery gates. The rally involved many people carrying or wearing union paraphernalia, much of it relating to or signifying United Voice. It was submitted that it ought not be in dispute that the rally was organised, encouraged and ultimately coordinated/conducted by United Voice and various of its officers.
[150] CPPL submitted that the rally/picket was obstructive. For about an hour, United Voice and its supporters prevented various trucks from entering and exiting the Brewery for the purposes of, and in the ordinary course of, CPPL's business. CPPL contends that there is little doubt that the obstruction was tortious[11] and a contravention of sections 343, 346 and/or 348 of the Act.[12]
[151] CPPL criticises United Voice's position that it did not cause or organise the rally to be obstructive.[13] CPPL argues that the Commission can be comfortably satisfied that it did. United Voice officers had the clear capacity to ensure that the rally was not obstructive, were asked to take steps to see that this occurred and refused to do so. Indeed, on the second and third occasions that "protected" stop work action was organised and occurred at the Brewery (11 and 18 April 2018), United Voice undertook, in advance, not to organise an obstructive rally or picket. Whilst a smaller rally occurred at or around the time of these stoppages, the rallies were not obstructive.
[152] It was submitted that the obstructive rally was unlawful and hence (and in any event) unfair. It was directed towards and intended to impact upon, the bargaining process. It undermined the scheme of collective bargaining established in detail in the Act, by not complying with it.[14] The work stoppages were a permissible and lawful[15] means of placing pressure on CPPL to bargain in a particular way. The rally or protest itself was in the same position. The obstruction as part of that protest was unlawful, illegitimate and/or unfair.
[153] CPPL submitted that it is reasonable to restrain United Voice from further organising, etc. obstructive rallies/pickets at the Brewery (section 230(1)(c) of the Act). Such an order would go no further than reflecting the parties' existing legal rights and has no impact at all on United Voice's further organisation of protected industrial action or non-obstructive rallies and protests, whether at or around the Brewery or otherwise.
[154] Subsequent to the events of 26 March 2018, United Voice organised further work stoppages on 11 April 2018 and 18 April 2018. On each occasion CPPL has sought (and received) an undertaking from United Voice substantially in the form sought in this component of the application (for those respective stoppages only). United Voice has not, however, been prepared to provide a more enduring undertaking. Further resistance from United Voice to orders of this type (and its refusal to give a more enduring undertaking) can only be based on a desire to decide in future, perhaps when CPPL needs some "encouragement", that further obstruction of the operations of the Brewery is required.
[155] CPPL contends that various of United Voice's statements and comments in the media and to the Employees and the public (including via social media) are false, misleading and/or unfair. CPPL submits that such conduct, if accepted, amounts to "unfair conduct that undermines...collective bargaining", within the meaning of section 228(1)(e) of the Act.
[156] It is not sufficient that a bargaining representative merely engage in unfair conduct in the context of bargaining. The unfair conduct must (relevantly) "undermine collective bargaining". This will at the least require that the conduct is part of, connected to, or has an impact upon the bargaining process.[16]
[157] CPPL submits for the purposes of section 228(1)(e), "unfair" and "undermine" have been given their ordinary meanings:
(a) "unfair" means conduct which is not fair, biased or partial; not equitable or just; not impartial or according to the rules;[17]
(b) to "undermine" means to weaken, injure or damage, including by secret or insidious means.[18]
[160] CPPL submits that the false, misleading and/or unfair nature of them is also explained in Ms Wick's statement. Those that imply or suggest that CPPL has threatened to shut down the Brewery, or has threatened (or plans to) move production interstate or source third party labour from interstate to work at the Brewery, are all demonstrably false and knowingly so. So too are related representations that CPPL has threatened to or is seeking to increase its use of interstate third party labour at the expense of its ongoing workforce.
[161] CPPL submits United Voice's reasons for making the statements and repeatedly referring to beer production and jobs being kept "local" and in Queensland, are self-evident: as was reported in the Australian Financial Review on 24 March 2018, "United Voice believes the parochial argument will work on garnering the support of Queenslanders". They are directed solely at the bargaining process and are designed to cause CPPL to agree to United Voice's demands in bargaining or at least, modify its own bargaining position, through public pressure and media scrutiny, including at a time when XXXX's sponsorship of the Commonwealth Games was in the public consciousness.
[163] CPPL submits that United Voice is entitled to deploy fair comment and argument in support of its bargaining position, and is entitled to utilise the media, public opinion and social media to support those endeavours. It is not entitled, however, to achieve those same ends through false, misleading and/or unfair representations. It is reasonable that it be restrained from doing so. That proposed restraint goes no further than is necessary to protect and preserve the integrity of the bargaining process.
[164] During closing submissions, in answering questions put by me, CPPL agreed that so long as United Voice did not purport to speak on behalf of CPPL, it could make appropriate prefacing representations to the media such as, "We hold a genuinely held belief that.....", [23] Instead of saying, "CPPL is going to close the Brewery", CPPL agrees that United Voice could continue to say words to the effect, "I don't believe the company when they deny that they're going to close this brewery" so long as it is not misleading based on any reasonable grounds.[24]
[165] CPPL contends that United Voice can make statements and representations about job security and its concerns about job security as much as it likes; what United Voice cannot do is use that generic term as a 'stalking horse cover' or front for what are different and more specific statements which are plainly false and misleading. United Voice and its representatives and members may hold concerns about these matters. The statements repeatedly made are not limited to a reflection of the views or concerns of the members; rather they are attributed to CPPL as its actions, motivations, desires or intentions.[25]
PowerPoint presentation and email to employees
[166] During closing submissions, Counsel for CPPL and I engaged in dialogue regarding the PowerPoint presentation of July 2017 and the reproduction of one pertinent slide in the presentation that was emailed to Employees as recently as March 2018. Mr Davie had relied on the statements within the presentation to suggest that the Brewery was, indeed, under threat of closure. The dialogue is as follows:
"Mr Follett: Mr Davie in the context of bargaining, and his representation of his concerns and belief as fact, he can't attribute that to company. I believe doesn't equal they intend to. The suggestion as developed in the question from the Commission yesterday to Ms Wicks about the statement in DD02 and the change of colour of the font and the suggestion that the union make is that constitutes a threat, is a significant leap in our respectful submission to say that that statement's a threat of anything
Can I hand to the Commission a copy of a relatively recent judgment of Bromberg J of the Federal Court dealing with a summary of principles relating to threats for the purposes of the adverse action provisions and coercion under the Fair Work Act. A long list of authorities was referred to in paragraph 53. Sorry, this was a judgment of Fair Work Ombudsman Australian Workers' Union medium neutral citation 2017 SEA528, paragraph 53. His Honour sets out a number of cases dealing with the concept of threat and threatened.
Then at paragraph 54, summarises a range of principles. We just refer the Commission to those. First, threatening to take action must involve the communication of a threat directed at an ascertainable person which is received or likely to be received by that person. That proposition doesn't have the sort of weight it has here, because we're not dealing with the same sort of provision, a threat to a person. There's a range of other principles there.
Mr Follett: The essence of a threat is that it is made for the purpose of intimidating a person. Well, we don't have any evidence of that here. Threatening to take action must involve an expression of an intimidatory purpose. Not necessary that a subjective intent to carry out the threat be established. That's not controversial. That's not confined to a threat to inflict harm that's unlawful or unjustified. The presence of malice is not a prerequisite and a threat may be conditional.
On that basis, Commissioner, it's not a threat on any view and even if it was, it doesn't assist the union because the next question is, it's a threat of what? It says nothing at all about any of the things that Mr Davie seeks to characterise it as. It doesn't mention the future of the brewery or closing the brewery at all. If anything, it's a threat of a need to be more flexible. What's that mean?
To start speculating from there, indeed, in circumstances where Ms Wicks has explained exactly what that means, including to the union...
Hunt C: Well, she's not the author of the PowerPoint presentation.
Mr Follett: No, but she works with Ms Bell. I don't know who the author of the PowerPoint presentation is, but she works with Ms Bell. She's workding for the company that's supposedly make this statement. She's in a position to say to the extent the statement finds its way into a PowerPoint document that's used in bargaining, which I'm running, this is what it means.
Mr Davie is not entitled, and the union is not entitled to convert his beliefs or fears or his particular slant on the interpretation of that, and convert it into a statement of fact and then attributed it to the company and then say this is what they're doing. It's been explained to the union. MW20 page 156, the 13 April letter. That's they've been told what it means. Again, the only way any statements after that cannot be regarded as misleading is if there was a rejection of the company's position. That's a lie.
Relatedly, Mr Davie accepted the logical end point, after three goes at this.
Hunt C: It only dealt with the first sentence, not the second sentence within the PowerPoint.
Mr Follett: There's a letter - that may be right, Commissioner. What's the - the second sentence is - I'm just trying to find this. "Staying the way we are is not an option for the long term".
Mr Follett: I don't know how anyone could get a threat out of that is not clear to me and if you could get a threat to that, what is it, that in the long term there must be change?
Hunt C: That's why I asked Ms Wicks the question and she didn't author the document.
Hunt C: So, what does it mean? Will I be left to decide that, will I.
Mr Follett: It certainly doesn't mean what Mr Davie says it means. At its highest, if you took that as a threat. At its highest, it is an implied term that there needs to be change in the organisation. At its highest.
That change could take on an innumerable type or levels of complexion. It could be making new brands of beer. It could be increasing the production at the expense of New South Wales. It could be decreasing production at the expense of New South Wales. It could be anything. How Mr Davie, as a matter of representing as a statement of fact what the company threatens or intends to do from that, is close the brewery, ship in cheaper interstate labour, reduce production, ship it over the border. It's not even arguable that that's a reasonable construction of that document.
Hunt C: Do we need evidence before the Commission as to the author's meaning behind putting that together?
Mr Follett: No, because what you need is to assess the truth of what Mr Davie says, or otherwise.
Hunt C: Do you want to get some instructions there?
Mr Follett: I don't intend to lead any evidence from anyone about what that statement means.
Hunt C: Well, that's a matter for you, but I have a mystery author and I'm being asked to do something with that.
Mr Follett: It's been denied about 50 times. What more can we do? Incidentally on that point, we've had Ms Bell deny it. Paragraph 43 of Ms Wick's statement refers to the head of beer for the entirety of Australia saying exactly the same thing to employees. How much higher can you go? Mr Brinley, Managing Director of Beer, in the entirety of Australia. We are not closing this brewery.
What does it matter what was said in June and whoever the author was and what their intention was, when repeatedly the company, on company letterhead and through Mr Brinley who's not a member of the company but is the member of the owner, the Lion dairy and drinks business, comes in and says this is not what we are doing? The company goes out in the media and says this is not what we are doing.
If that was false, we couldn't resist relief against us by saying well, they didn't have instructions. We would have found Mr So and So or Miss So and So from Japan...
Hunt C: They didn't seek to retract the PowerPoint statement if it had caused any concerns to employees and their representatives. They reproduced it in March 2018.
Mr Follett: A statement that that is not a threat and there is no threat and we are not closing the brewery is not enough, but if we had of added to that and we retract any suggestion earlier.
Hunt C: It would have gone a long way, wouldn't it?
Mr Follett: No, because Mr Davie would have said, I don't care what you say to me. I don't believe you.
Hunt C: Well, it's evidence before the Commission at the moment.
Mr Follett: What's evidence before the Commission, sorry?
Hunt C: The PowerPoint statement of July 2017 and then a reproduction of it in an email to employees in March 2018. I'm going to be asked to deal with it by United Voice.
Mr Follett: Statements are interpreted objectively. The subjective intention of the author is completely irrelevant. Absolutely irrelevant.
Hunt C: Well, have a think whether a retraction of that would assist.
Mr Follett: I'm sure I can get instructions to stand right here and say any suggestion that that carried with it a threat to do any of the things in paragraphs 2(a) to 2(e), is unreservedly retracted.
Hunt C: Well, we'll have a lunch break and you can deal with it then, I imagine." [26]
[167] On resumption of the hearing after an adjournment, Mr Follett stated the following:
"Mr Follett: Just before my learned friend commences his submissions, Commissioner, consistent with what I said I thought the position would prior to the break, I can now say, definitively, on instructions, that to the extent anything we have said in the PowerPoint presentation or the subsequent email referring to it that could be characterised in any way, shape or form as an imputation, implication or implied threat about plans to close the brewery, that was not meant, it was not intended and it is wholly retracted.
Further, and consistent with the position that the company has repeatedly stated, I can say, on instructions, to this Commission that the company does not intend to, does not want to and has no plans to close the brewery."[27]
[168] United Voice accepts that the following jurisdictional prerequisites to the making of an order under s.230 have been satisfied:
(a) an application has been made under s.229[28];
(b) CPPL has agreed to bargain for a proposed new agreement[29];
(c) CPPL has concerns that United Voice has not met, or is not meeting, the good faith bargaining requirements[30];
(d) CPPL has given written notices setting out concerns to United Voice (on 26 March 2018 and 18 April 2018)[31];
(e) CPPL has given United Voice a reasonable time within which to respond to those concerns[32];
(f) CPPL considers that United Voice has not responded appropriately to those concerns[33].
[169] However, United Voice submits that it has not failed to meet the good faith bargaining requirements as alleged by CPPL or, alternatively, to the extent that there has been any failure to meet a good faith bargaining requirement, such failure is not of such an order that the Commission could be satisfied that it was reasonable in all the circumstances to make the bargaining order sought.[34]
No failure to meet good faith bargaining requirements
[170] To the extent that the media statements are attributed to Mr Davie, [35] it is conceded by United Voice that the media statements were made generally in the terms alleged. [36]
[171] United Voice submitted that the Media Statements were not misleading, illegitimate or unfair. When analysed, the comments pursued the following themes:
there had been threats by CPPL to shut down the Brewery;
CPPL management had refused to guarantee the jobs at the brewery would not filled by interstate or overseas contractors;
some XXXX beer was being made in New South Wales and South Australia;
40 brewery workers had been made redundant over the last few years;
United Voice members would take industrial action over job security in the Proposed Agreement;
there would be public actions in support of Queensland jobs including community rallies;
United Voice stands up for Queensland jobs.
[172] United Voice and its members at the Brewery have held genuine concerns over the erosion of jobs and ongoing job security at the Brewery for a number of years. Those concerns predate any bargaining for the Proposed Agreement.
[173] CPPL does not contest the assertions over job redundancies in recent years and it concedes that some beer is made interstate for distribution in Queensland.[37]
[174] United Voice contends that nothing done in the course of its media comments constituted "capricious or unfair conduct that undermines freedom of association or collective bargaining" as that term appears in s.228(1)(e) of the Act.
[175] United Voice contends that the media comments were neither capricious nor unfair. They were either truthful statements or genuinely held beliefs made on the basis of firm existing evidence. They were part of a campaign to garner public support, a process separate from enterprise bargaining. Mr Reed conceded in oral closing submissions that Mr Davie had been "gilding the lily" about "one or two of the aspects...in the public campaign, such as moving jobs interstate."[38]
[176] In order to make good its contentions, United Voice submits that CPPL must also show that, even if the comments were unfair or capricious, those comments undermined collective bargaining. Firstly, the conduct must have actually, rather than potentially, undermined collective bargaining. Secondly, the "collective bargaining" which must be undermined is the bargaining of the employees. They are the "collective". As Flick J said in Endeavour Coal Limited v APESMA[39] "'Enterprise agreements enable employees to collectively bargain for conditions better than the 'minimum standards' guaranteed by the 'National Employment Standards' (s.59) and the 'minimum safety net' otherwise provided by 'modern awards' (s.134)."
[177] Even if there was some question as to the truth of any media or public representations made by United Voice, it is submitted that such a representation would only relevantly contravene s.228(1)(e) if it was deliberate or reckless and it misrepresented to employees, or otherwise misled them about, the progress or status of bargaining, the position of another party in bargaining negotiations, or their rights under enterprise bargaining, including the right to take industrial action.[40]
[178] There is no evidence that United Voice members, or the relevant Employees generally, were misled about any of those matters. The available evidence[41] is to the effect that the Employees were concerned about job security and that their delegates were involved in the negotiation of the disputed job security clause[42] in the Proposed Agreement.
[179] United Voice submitted there is no evidence that collective bargaining was undermined. CPPL's case centres on the contentious job security clause which underwent several changes of title in the various iterations of the draft Proposed Agreement. Bargaining as to the content of the clause has continued throughout the period of the bargaining meetings, with United Voice making significant concessions by agreeing to a raft of amendments proposed by CPPL.[43]
[180] In its letter of 13 March 2018,[44] CPPL said that "The recent progress in negotiations has been positive ...". In its letter of concerns of 26 March 2018,[45] CPPL said that "the parties are very close to reaching agreement". In its letter of 11 April 2018, CPPL referred to some of United Voice's commentary to the media and their relationship to United Voice's intentions in bargaining and said that "We are heartened by your recent correspondence which sheds some further light on these issues."[46]
[181] United Voice submitted that the contentions put by CPPL that United Voice failed to meet the good faith bargaining requirements with respect to media statements fails at several levels.
[182] With respect to the rally and alleged picket that took place on 26 March 2018, United Voice contends that the conduct complained of coincided with protected industrial action taken by Employees in support of their bargaining claims. United Voice argue that the rally and so called "picket" were separate activities to the protected industrial action and were engaged in by other United Voice members and members of the public in support of the public campaign to have XXXX continued to be brewed in Queensland, thereby assisting in maintaining as many jobs as possible at the Brewery.
[183] United Voice does not accept that any of its organisers or employees engaged in, or encouraged others to engage in, obstructive behaviour on that occasion and there is no cogent evidence to support such contentions. United Voice submits that if there was any obstructive or unlawful behaviour engaged in by persons present on that day, CPPL has available remedies at common law to deal with any unlawful conduct which may have occurred or any damage which may have been suffered.
[184] United Voice submits that the rally and "picket" were not undertaken by United Voice as a bargaining representative in the course of bargaining. There was no failure to meet the relevant good faith bargaining requirement. There was simply no interference with, or undermining of, collective bargaining by the Employees.
[185] Section 230(1)(c) of the Act requires that, even if there has been a failure by a bargaining representative to meet a good faith bargaining requirement, the Commission must be satisfied that it is reasonable in all the circumstances to make the bargaining order which is sought.
[186] United Voice submits that for the foregoing reasons, there has been no failure by it to meet any good faith bargaining requirement. However, if the Commission was satisfied that there had been some failure, then it is submitted that it would not be reasonable in the circumstances to make the bargaining orders sought.
[187] In that regard, United Voice submits that the discretionary considerations are important:
(a) any failure to meet a good faith bargaining requirement was minor or has subsequently been rectified;
(b) bargaining has continued throughout the period during which the impugned conduct is said to have occurred, with the only interruption to bargaining meetings being caused by cancellation of meetings by Castlemaine Perkins;
(c) as demonstrated by CPPL correspondence of 11 April 2018,[47] the parties have all but agreed on the critical job security clause in the proposed agreement;
(d) United Voice undertook not to cause, organise or encourage, and to take all reasonable steps to ensure that its officers, employees and members did not cause, organise or encourage, any obstruction to and from the brewery for any persons or vehicles on 11, 18 and 26 April 2018 and 3 May 2018, when protected industrial action was again being taken;
(e) there has been no suggestion of "obstructive pickets" occurring on 12 April 2018 when further protected industrial action was taken by United Voice members; and
(f) events have very much overtaken the complaints made by CPPL in the amended application.
[188] A particular example is provided by the following chronology:
(a) in its correspondence of 7 March 2018,[48] CPPL proposed a particular form of wording by way of amendment to then clause 10.5.1(c) of the proposed agreement;
(b) by its correspondence of 12 March 2018[49], and its proposed further draft of the relevant clause dated 9 March 2018, United Voice accepted that proposed wording;
(c) in its correspondence of 13 March 2018[50], CPPL reneged on its previous proposed wording of clause 10.5.1(c) and proposed further wording which diluted the job security aspects of the subclause.
[189] United Voice submitted that while CPPL continued to tread the fine line between hard bargaining and questionable conduct, United Voice's acceptance[51] of the further proposed amendment to clause 10.5.1(c) in its draft clause of 10 April 2018[52] was a further demonstration of United Voice's continued willingness to negotiate in good faith.
[190] United Voice submits that in all the circumstances, the weighing up of the discretionary considerations do not favour the making of any bargaining order even if the Commission was satisfied that there had been some failure by United Voice to meet a good faith bargaining requirement.
[191] In relation to the statements to the media and the good faith bargaining requirements under s. 228 of the Act, United Voice cited the following passages of the decision of Asbury DP in CFMEU v Anglo Coal (Capcoal Management) Pty Ltd T/A Capcoal [2016] FWC 8847 ('Anglo Coal') :
"[101] The good faith bargaining requirement in s. 228(1)(e) has two limbs as is apparent from the use of the term "that" as a conjunction between the terms "capricious or unfair conduct" and "undermines freedom of association or collective bargaining". An allegation that an employer as a bargaining representative has breached such a requirement by deciding to dismiss 83 employees is serious and requires cogent proof, although the standard of proof is the balance of probabilities. A bargaining order, particularly of the kind sought by the CFMEU in the present case requires a proper evidentiary basis and the Commission must be satisfied on the balance of probabilities that the conduct of the relevant bargaining representative was capricious or unfair conduct that undermines freedom of association or collective bargaining.
[102] In order to find that there has been a breach of the good faith bargaining requirement in s. 228(1)(e), the Commission must be positively satisfied of two distinct but related objective facts.
[103] It is not sufficient for the purposes of s. 228(1)(e) that conduct is simply unfair or capricious. The conduct must also have the effect or likely effect of undermining collective bargaining. The concept of capricious conduct is well understood. It is conduct that is unaccountable, whimsical, irregular or unpredictable. To borrow from the analysis that is usually applied in the context of considering whether a dismissal is unfair on the basis that it is for an invalid reason, the antithesis of capricious conduct is conduct that is not valid, defensible or well founded.[53] Conduct that is unfair is conduct that is not equitable or honest or not impartial or according to the rules." (United Voice's Emphasis)
[192] United Voice submitted that the passages in Anglo Coal above seem to be the accepted understanding of the words "capricious and unfair" as regards s.228 of the Act. United Voice submitted that it is difficult to see that conduct, even on CCPL's case, could not characterized as capricious because that implies, as it says, an irregularity and unpredictability, something that arises in a hurry. On CPPL's case, the conduct was systematic over a long period of time.[54]
[193] United Voice submitted that the conduct was not unfair because of the fact that it was part of a public campaign.
[194] With respect to the conduct of parties engaged in bargaining, United Voice also made reference to the decision CFMEU v Oaky Creek Coal Pty Ltd [2017] FWC 5380 where Deputy President Asbury stated:
"[166] To those principles I would add that a bargaining order should not be directed to handicapping either of the parties for the purpose of adjusting a perceived or actual power imbalance between them on the basis of some general notion of fair play. As a Full Bench of the Commission observed in CFMEU v Coal and Allied Operations:[55]
"The adage 'all is fair in love and war' is we think, as much applicable to industrial warfare as to any other type."
[167] In the context of good faith bargaining requirements, all is fair in love and war unless it constitutes a breach of the good faith bargaining requirements, which include that bargaining representatives do not engage in conduct that is capricious or unfair and which undermines freedom of association or collective bargaining. Only then can the Commission make a bargaining order which must be directed to remedying the effect of the particular breach."
[195] United Voice submitted that industrial warfare need not only be waged in the bargaining meetings, it can be waged, legitimately, by seeking to sway public opinion, in a way that won't necessarily result in bargaining outcomes, but may well result in policy decisions taken by the company.[56]
[196] Furthermore, United Voice submitted that fundamentally even if one were to characterise the media statements as unfair, those media statements must, in the terms of section 228(1)(e), undermine freedom of association or collective bargaining. The plain words say that it must, in fact, undermine freedom of association or collective bargaining. [57]
[197] United Voice contended that, as a matter of construction of s.228(1)(e), the notion of 'collective bargaining' refers to the collective bargaining, as it's engaged in by the employees.[58]
[198] After hearing from the parties I advised that the decision was reserved and would be made accordingly.
Further demonstration 30 May 2018 - interim order sought
[199] On 31 May 2018 CPPL filed an application for an interim order based on what it says was a further obstructive demonstration outside of the Brewery on 30 May 2018.
[200] A hearing was convened before me on 8 June 2018 and evidence was given by the following witnesses, although none were required for cross-examination:
Tim Symons, Packaging Manager, CPPL.
Brendan Himes, Compliance Officer, HATAMOTO; and
Mr Simon Ong, Industrial Officer, United Voice.
[201] The evidence given at the hearing was to the effect that:
(a) United Voice had planned industrial action from 10:30am on 30 May 2018. United Voice also organised a community rally to be held at the Brewery to coincide with the Brewery workers' industrial action.
At about 10:20am, a group of people near the Paten street entry gate. A minibus arrived and a number of people wearing ETU clothing get out of it. Mr Symons also saw Mr Davie of United Voice and Mr Garry Rogers of the ETU amongst the group of people.
Mr Symons observed a ute in the 'no standing' zone on Finchley Street, 5 metres from the Paten street exit gate. Mr Symons also saw Mr Davie and Mr Rogers setting up a PA system and some placards on or near the ute.
Shortly before 10:30am, an estimated 100 people gathered in front of the Paten street entry and exit gates, including some wearing clothing and holdings flags with United Voice, ETU, NTEU and MUA logos and names.
At approximately 10:34am a BevChain truck drove towards the Paten Street exit gate and stopped near it. The gates were opened and the rally attendees in front of the gate were asked to move to allow the truck to exit, but they did not move. The BevChain truck made a second unsuccessful attempt to exit the Brewery at approximately 10:40am.
At approximately 10:50am a Veolia truck attempted to exit the gate from within the Brewery but was unable to because he was blocked by the people standing in the exit path.
At approximately 10:55am, a BevChain truck was unable to enter the Brewery because the rally attendees were standing in front of the entry gate. At 11:05am the people standing in front of the gate were still there and the BevChain truck was still unable to enter. The driver of the truck was instructed to drive around the block and try to enter the Brewery again.
A approximately 11:14am a second BevChain truck arrived and was also waiting to enter the Brewery but was prevented from doing so because there was a group of people standing on the road in front of the entry gate.
Mr Symons was advised by representatives of BevChain representatives that the two BevChain trucks had left to return to the warehouse without any products they had come to the Brewery to collect.
228 Bargaining representatives must meet the good faith bargaining requirements
(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:
(a) attending, and participating in, meetings at reasonable times;
(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;
(c) responding to proposals made by other bargaining representatives for the agreement in a timely manner;
(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative's responses to those proposals;
(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;
(f) recognising and bargaining with the other bargaining representatives for the agreement.
Note: See also section 255A (limitations relating to greenfields agreements).
(2) The good faith bargaining requirements do not require:
(a) a bargaining representative to make concessions during bargaining for the agreement; or
(b) a bargaining representative to reach agreement on the terms that are to be included in the agreement.
(1) A bargaining representative for a proposed enterprise agreement may apply to the FWC for an order (a bargaining order) under section 230 in relation to the agreement.
Note: See also section 255A (limitations relating to greenfields agreements).
(2) An application for a bargaining order must not be made in relation to a proposed multi-enterprise agreement unless a low-paid authorisation is in operation in relation to the agreement.
(3) The application may only be made at whichever of the following times applies:
(a) if one or more enterprise agreements apply to an employee, or employees, who will be covered by the proposed enterprise agreement:
- (i) not more than 90 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be); or
(b) after an employer that will be covered by the proposed enterprise agreement has requested under subsection 181(1) that employees approve the agreement, but before the agreement is so approved;
Note: An employer cannot request employees to approve the agreement under subsection 181(1) until 21 days after the last notice of employee representational rights is given.
(4) The bargaining representative may only apply for the bargaining order if the bargaining representative:
(a) has concerns that:
(i) one or more of the bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or
(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and
(b) has given a written notice setting out those concerns to the relevant bargaining representatives; and
(c) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and
(d) considers that the relevant bargaining representatives have not responded appropriately to those concerns.
Non-compliance with notice requirements may be permitted
(5) The FWC may consider the application even if it does not comply with paragraph (4)(b) or (c) if the FWC is satisfied that it is appropriate in all the circumstances to do so.
(1) The FWC may make a bargaining order under this section in relation to a proposed enterprise agreement if:
(a) an application for the order has been made; and
(b) the requirements of this section are met in relation to the agreement; andthe FWC is satisfied that it is reasonable in all the circumstances to make the order.
Note: See also section 255A (limitations relating to greenfields agreements).
Agreement to bargain or certain instruments in operation
(2) The FWC must be satisfied in all cases that one of the following applies:
(a) the employer or employers have agreed to bargain, or have initiated bargaining, for the agreement;
(b) a majority support determination in relation to the agreement is in operation;
(c) a scope order in relation to the agreement is in operation;
(d) all of the employers are specified in a low-paid authorisation that is in operation in relation to the agreement.
(3) The FWC must in all cases be satisfied:
(a) that:
(i) one or more of the relevant bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or
(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and
(b) that the applicant has complied with the requirements of subsection 229(4) (which deals with notifying relevant bargaining representatives of concerns), unless subsection 229(5) permitted the applicant to make the application without complying with those requirements.
Bargaining order must be in accordance with section 231
(4) The bargaining order must be in accordance with section 231 (which deals with what a bargaining order must specify).
(1) A bargaining order in relation to a proposed enterprise agreement must specify all or any of the following:
(a) the actions to be taken by, and requirements imposed upon, the bargaining representatives for the agreement, for the purpose of ensuring that they meet the good faith bargaining requirements;
(b) requirements imposed upon those bargaining representatives not to take action that would constitute capricious or unfair conduct that undermines freedom of association or collective bargaining;
(c) the actions to be taken by those bargaining representatives to deal with the effects of such capricious or unfair conduct;
(d) such matters, actions or requirements as the FWC considers appropriate, taking into account subparagraph 230(3)(a)(ii) (which deals with multiple bargaining representatives), for the purpose of promoting the efficient or fair conduct of bargaining for the agreement.
(2) The kinds of bargaining orders that the FWC may make in relation to a proposed enterprise agreement include the following:
(a) an order excluding a bargaining representative for the agreement from bargaining;
(b) an order requiring some or all of the bargaining representatives of the employees who will be covered by the agreement to meet and appoint one of the bargaining representatives to represent the bargaining representatives in bargaining;
(c) an order that an employer not terminate the employment of an employee, if the termination would constitute, or relate to, a failure by a bargaining representative to meet the good faith bargaining requirement referred to in paragraph 228(1)(e) (which deals with capricious or unfair conduct that undermines freedom of association or collective bargaining);
(d) an order to reinstate an employee whose employment has been terminated if the termination constitutes, or relates to, a failure by a bargaining representative to meet the good faith bargaining requirement referred to in paragraph 228(1)(e) (which deals with capricious or unfair conduct that undermines freedom of association or collective bargaining).
(3) The regulations may:
(a) specify the factors the FWC may or must take into account in deciding whether or not to make a bargaining order for reinstatement of an employee; and
(b) provide for the FWC to take action and make orders in connection with, and to deal with matters relating to, a bargaining order of that kind."
[203] I am satisfied that CPPL is a bargaining representative and has capacity to bring the application. Further, the timing at s.229(3) and prerequisites at s.229(4) of the Act for the making of an application have been met.
[204] It is not in issue that the parties have agreed to bargain as provided in s. 230(2) of the Act. What is necessary to consider is whether the Commission finds that United Voice has engaged in capricious or unfair conduct that undermines collective bargaining pursuant to s.228(1)(e), and then only if so, the Commission is satisfied that it is reasonable in all the circumstances to make the order.
[205] The parties referred the Commission to a Full Bench decision in CFMEU v Tahmoor Coal Pty Ltd,[59] where the Full Bench stated:
"[24] Whether a party observes or fails to observe the good faith bargaining requirements set out in s.288(1) [sic] is to be determined in light of all of the relevant circumstances. While at one level this is stating the obvious, it is appropriate in view of the submissions in the appeal to indicate that the question will rarely be decided by reference to one action or series of actions. Equally it would be undesirable to read into the legislation concepts which do not already appear in it for the purpose of explaining its operation. That approach is likely to lead to error in the construction and application of the provisions."
[206] Deputy President Asbury, in Construction, Forestry, Mining and Energy Union v Oaky Creek Coal Pty Ltd [2017] FWC 5380 set out the approach to deciding whether to issue a bargaining order as follows:
"[165] The central issue in this case is whether the conduct complained of by the CFMEU constitutes a failure by OCCPL to meet the good faith bargaining requirement in s. 228(1)(e) of the Act to refrain from capricious or unfair conduct that undermines freedom of association or collective bargaining. In CFMEU v Anglo Coal (Capcoal Management) Pty Ltd T/A Capcoal I endeavoured to set out some principles with respect to the application of the legislative provisions in relation to whether bargaining representatives have met good faith bargaining requirements in s. 228(1)(e) of the Act, which can be summarised as follows:
[166] To those principles I would add that a bargaining order should not be directed to handicapping either of the parties for the purpose of adjusting a perceived or actual power imbalance between them on the basis of some general notion of fair play. As a Full Bench of the Commission observed in CFMEU v Coal and Allied Operations:
"The adage 'all is fair in love and war' is we think, as much applicable to industrial warfare as to any other type."
[167] In the context of good faith bargaining requirements, all is fair in love and war unless it constitutes a breach of the good faith bargaining requirements, which include that bargaining representatives do not engage in conduct that is capricious or unfair and which undermines freedom of association or collective bargaining. Only then can the Commission make a bargaining order which must be directed to remedying the effect of the particular breach." [Endnotes omitted]
[207] In Junipers Limited v United Voice [2011] FWA 8317 Commissioner Asbury, as she then was, made the following observations:
"[38] As a general proposition, I accept that a union as bargaining representative for its members has an obligation to accurately and fairly report to them on the progress of bargaining, including various offers that may be conveyed by the employer and that this is encompassed by the good faith bargaining obligations. I also accept that this is a significant obligation, given that members of Unions generally have trust and confidence in the integrity of officials and employees of Unions who are representing them in bargaining for an enterprise agreement."
[40] Accordingly a deliberate misrepresentation made by an employee or official of a union that is a bargaining representative, in relation to the negotiations, or the position of another party in those negotiations, could trigger FWA's discretion to make a bargaining order to correct the misrepresentation, on the basis that it has unfairly undermined collective bargaining."
[208] The decision of Commissioner Cloghan in Australian Mines and Metals Association v Maritime Union of Australia (No.3)[60] concerned an application for bargaining orders in respect of a lengthy bargaining dispute between the Maritime Union of Australia (MUA) and group of companies in the oil and gas industry, for whom the Australian Mines and Metals Association (AMMA) was a bargaining representative. The decision involved a number of instances in which it was alleged the good faith bargaining requirements were not met by the MUA, including involving misrepresentations made by the MUA to its members and the media.
[209] The decision was preceded by a lengthy period of bargaining and a "significant number of proceedings in the Commission and Courts",[61] and included an interim decision Australian Mines and Metals Association v Maritime Union of Australia (No.1)[62], in which the Commissioner made a number of factual findings. With respect to misrepresentation to, the Commissioner held:
[20] At paragraphs [40] to [51] of [2015] FWC 773, I set out the facts and evidence relating to wage offers put by the Vessel Operators to the MUA before concluding that I was satisfied that the "MUA strayed from reality and gave a false impression to both its members and the media as to the status of the Vessel Operators' wage offer..." Further, what is notable about the MUA misrepresentation is that it was the Union's rationale for its members being "forced" to take proposed industrial action.
[21] At paragraphs [53] to [63] of [2015] FWC 773, I set out the facts and evidence relating to the MUA's claim regarding foreign labour. In conclusion, I was satisfied that the MUA misrepresented the Vessel Operators' position in bargaining. In particular, I was satisfied that the MUA projected to its members an image that did not truly reflect the factual position regarding the extent to which agreement had been reached by the parties in relation to the foreign labour claim.
[22] With respect to the movement and progress in relation to bargaining, I was satisfied that the MUA, on some, but not all occasions, misrepresented the progress and status of bargaining; see paragraphs [65] to [71] of [2015] FWC 773.
[23] Finally, at paragraphs [73] to [76] in [2015] FWC 773, I was satisfied that the MUA made judgements concerning the conduct of AMMA and the Vessel Operators which were not representative of the facts - they were a misrepresentation of the facts.
[24] In summary, having considered the evidence, I was satisfied that the MUA as bargaining representative had misrepresented the facts in a number of areas relating to bargaining between the parties."
[25] I now turn to the threshold issue of whether the MUA's actions were consistent with its obligation to meet the GFB requirements in s.228 of the FW Act.
[26] At this point, it is useful to set out the provisions of s.228 of the FW Act.
[27] At paragraph 228(e) of the FW Act, bargaining representatives are required to:
"refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining".
[28] The verb "refrain" means to "abstain from doing" or to "curb"; essentially, to not do something. Consequently, a bargaining representative is to not do something which is "capricious" or "unfair".
[29] Capricious is essentially an action which is "unpredictable" or "irregular".
[30] I now turn to whether "misrepresentation" is unfair conduct. Before doing so, it is relevant to refer to the Explanatory Memorandum (EM) to the Fair Work Bill 2008 which, at paragraph 951, states:
"951. The good faith bargaining requirements are generally self-explanatory. The last requirement, 'refraining from capricious or unfair conduct...' is intended to cover a broad range of conduct."
[31] "Misrepresentation" is essentially to give a false account or impression. The falsehood occurs in speech or narrative and is usually dictated by the portrayer's self-interest. The unmasking of this falsehood is evidence to the contrary, as in this case.
[32] The MUA submit that its communication with its members and the media is a matter for it and not the AMMA or the Vessel Operators. I disagree.
[33] The MUA's comments are within the context of being a bargaining representative and related to bargaining with the Vessel Operators for replacement enterprise agreements.
[34] I am satisfied that misrepresentation is unfair conduct.
[35] I now turn to whether the misrepresentation engaged in by the MUA relevantly undermines collective bargaining.
"Good faith bargaining requirements aim to ensure that all bargaining representatives act in an appropriate and productive manner when working towards a collective agreement. The requirements also facilitate improved communication between bargaining representatives, which is expected to reduce the likelihood of industrial action."
[37] I am satisfied from the facts and evidence relating to the instances of MUA misrepresentation set out in detail in [2015] FWC 773 was neither appropriate nor productive, and undermined collective bargaining to achieve replacement enterprise agreements.
[38] Misrepresentation to the extent set out above was not proper. The misrepresentation was false or materially incorrect. The misrepresentation, in my view, destabilised and impaired the trust and confidence necessary in negotiations to achieve replacement agreements.
[39] Having been satisfied that the instances of misrepresentation by the MUA were a breach of the good faith bargaining requirements in s.228 of the FW Act, it is necessary to consider the provisions of s.230 of the FW Act.
[40] I am satisfied that the application has been properly made (s.230(1)(a)). I am satisfied that the requirements in s.230 have been met (s.230(1)(b)). Consequently, it is necessary to consider whether it is reasonable in all the circumstances to make a bargaining order as sought by AMMA (s.230(1)(c))."[63] [Endnotes omitted]
[210] On the issue of collective bargaining, I am not aligned to the submission of United Voice where it is put that s.228(1)(e), where it references collective bargaining, only refers to employees collective bargaining because they are the collective.
[211] All of the requirements to be met at s.228(1) are obligations on all bargaining representatives; there are not some that apply only to employer bargaining representatives, and some only to employee bargaining representatives.
[212] Collective bargaining is a broader term than just for the benefit of employees. CPPL is correct in that collective bargaining is reached when the parties bargain; employees don't bargain between themselves. The collective bargain is between a group of employees and their employer.
[213] Bargaining representatives of employees are bound by the good faith bargaining requirements in s.228(1), as are bargaining representatives of an employer. A bargaining representative of employees is refrained from capricious or unfair conduct that undermines collective bargaining.
[214] I accept the submissions at [157] as to the meanings of "unfair" and "undermine" relevant to s.228(1)(e) of the Act.
[215] Having viewed photographs and videos of the conduct of United Voice and Employees on 26 March 2018 outside of the Brewery gates, together with the evidence of witnesses at the hearing, I am satisfied that United Voice as a bargaining representative engaged in capricious or unfair conduct that undermines collective bargaining. The obstructive picket prevented entry by trucks to the Brewery by the positioning of people in front of the Brewery gates. Trucks were also prevented from safely exiting the Brewery due to the obstacle of a large number of people in front of the gates who refused, for the duration of the obstructive picket, to move off of the road.
[216] Despite United Voice's correspondence to CPPL at [142] where it contended that it was a "community protest", the obstructive picket was organised and deliberate. A Labor Member of Parliament was invited to address the protestors and did so, and Mr Davie's ute was used as a platform. During the obstructive picket no attempt was made by United Voice representatives to encourage protestors to move off the road.
[217] Mr Davie's evidence to the Commission on 18 May 2018 was that to his knowledge, no further obstructive rallies in front of the Brewery were planned. United Voice was not, however, prepared to provide to CPPL an enduring undertaking that obstructive rallies would not occur during the bargaining. Mr Davie gave the following evidence in cross-examination:
"Mr Follett: If that's the position, why won't United Voice provide the undertakings that the company sought?
Mr Davie: Like on the previous rallies, we can't give 100 per cent guarantee every time that we would have enough marshals, et cetera, there to ensure that community participants didn't engage in that. Generally, we will have enough people there. There may be some emerging circumstances that prohibit us from giving that undertaking on a permanent basis.
Mr Follett: Those emerging circumstances being when the company needs a bit of persuasion in the bargaining to alter its position, correct? -No.
Mr Follett: I asked you yesterday about the four questions in the 13 April letter as to why the union hadn't provided the clarifications that were sought. You said you didn't know and then I asked you yesterday the answers to those clarifications and you gave them? -Mm-mm.
Mr Follett: Equally, if there was no intention to organise an obstructive picket or rally at the site in future, it would have been very easy for the union to give that, that's correct, isn't it? -No.
Mr Davie: It's hard to say. If we have an influx of community people that we're not expecting and the marshal situation on the day doesn't match up, you know, there may be other groups that partake that we're not in control of and haven't had the time to ensure that that's not going to happen. When we're given it on a case by case basis, we get time to go through a process of briefing everyone, making sure it doesn't happen."[64]
[218] Mr Davie's evidence on this issue suggests that United Voice, in providing marshals to a "community rally", would seek to ensure, to the best of its ability, that the Brewery would not be blocked. It is Mr Davie's contention that other participants might not be able to be controlled in such a fashion. Having reviewed the video evidence, there is not one occasion where Mr Davie or other United Voice representative can be seen on the footpath encouraging other participants in the protest to move themselves from the road to allow trucks to enter and exit the Brewery. In viewing the footage, Mr Davie and other United Voice representatives placed themselves on the road, circulating among participants. Loud hailers were used to encourage repeated chanting. I infer that Mr Davie knew it was his ute that speakers to the rally were standing on. Mr Davie's evidence before this Commission was risible on the issues of the obstructive rally.
[219] At the conclusion of the hearing on 18 May 2018, CPPL did not seek an interim order.
[220] Just 10 days later, and after the decision was reserved in this application, on 28 May 2018 United Voice advertised on its Facebook page a "XXXX Rally with Sally McManus" to take place on 30 May 2018 from 10.30am - 11.30am. It is not surprising that United Voice did not provide to CPPL an enduring undertaking.
[221] On 30 May 2018 approximately 100 protestors again gathered out the front of the Brewery gates. A number of truck drivers attempting to enter the Brewery in their delivery trucks were encouraged to move on by rally participants, including officials of the ETU, acting as "marshals" on the roadway, directing traffic. Trucks seeking to exit the Brewery were prevented from doing so by the fact that there were many people on the road in front of the Brewery. It would have been unsafe for the truck drivers to seek to enter or exit the Brewery.
[222] As detailed above, the interim order application was heard before me on 8 June 2018. Filed witness statements were admitted into evidence, however the witnesses were not required for cross-examination. Video footage was admitted into evidence.
[223] Relevant to the conduct of United Voice representatives on 30 May 2018, including Mr Davie, the video footage demonstrates that from approximately 10.30am until 11.30am, representatives of United Voice and other rally participants stood in the vicinity of the Brewery gates to prevent trucks from entering and exiting the Brewery. At approximately 11.20am Mr Davie was approached by a security officer and asked if he would encourage participants to move off the road. He turned his back on the security officer and ignored him. No attempts were made by United Voice officials to move participants from the immediate vicinity of the Brewery to allow for entry and egress. Mr Davie encouraged participants to stand in front of the entry gate to convene a media conference.
[224] Towards the conclusion of the hearing on 8 June 2018 I informed the parties that I did intend to issue an interim order. The order was issued that afternoon, requiring certain compliance by United Voice to inform members, Employees and others of the interim orders.
[225] I issued the interim order as I was satisfied that it was reasonable in all the circumstances to do so. It appeared to me that United Voice was not prepared to await a determination of the substantive application before it took further and repeated obstructive action.
[226] Despite the further action taken on 30 May 2018, following the hearing on 17 and 18 May 2018 I had determined that I would make a final order in the terms sought by CPPL relevant to the obstructive conduct. That is, I was prepared to make an order identical to item 1 of the draft order. I was satisfied at the first hearing that the conduct of United Voice representatives constituted capricious or unfair conduct that undermines collective bargaining, and I considered it reasonable in all the circumstances to make the order. I had not, however, prepared the written decision to do so, and in the absence of a request for an interim order, I did not consider it appropriate to issue an order at the time without an accompanying decision. This is particularly so when the order sought by CPPL included item 2, that being the media statements issue.
[227] I consider that the bargaining representative, United Voice did not meet its good faith bargaining requirements to refrain from capricious or unfair conduct that undermines collective bargaining when it organised the obstructive rally on 26 March 2018, and then again on 30 May 2018. I agree with the submission put by CPPL that the conduct of engaging in and encouraging others to engage in the obstructive rallies is unfair conduct, intended to put inordinate pressure on CPPL to meet some demands of United Voice in the bargaining for the Proposed Agreement.
[228] I do not accept for an instant the submissions put by United Voice at [183] that the rally and picket, which United Voice refuses to accept as an obstructive rally, was not undertaken by United Voice as a bargaining representative in the course of bargaining. There could not be a greater link. It's not, as United Voice puts it, a public demonstration simply to sway the public's opinion. The obstructive rally was planned with an invitation to a politician to attend. It is reasonable to conclude that United Voice would have been aware that vehicles would seek to enter or exit the Brewery during the time of day the event occurred.
[229] I find that the obstructive rally of 26 March 2018 was organised to put immense pressure on CPPL to relax its bargaining position on various issues. It was then repeated following the decision in this application being reserved. This conduct was unfair.
[230] I am satisfied that the unfair conduct undermines collective bargaining. The conduct was co-ordinated, and having observed the footage of the two demonstrations, deliberate in its efforts to effect harm to CPPL by having approximately 100 people stand before the Brewery gates affecting the ability of trucks to enter and exit.
[231] While on some occasions United Voice was prepared to provide an undertaking that it would not engage or organise an obstructive rally, it refused to do so on an enduring basis until bargaining is completed. For that reason, and to ensure that during bargaining such conduct is not repeated, I am satisfied that it is reasonable in all the circumstances to make a final order the kind sought.
[232] Whatever was put by United Voice at [187] was completely disregarded some days later. I suspect the availability of Ms McManus of the ACTU to attend a demonstration outside of the Brewery proved too tempting a proposition to pass up.
Order sought regarding the making, publishing, disseminating or distributing any statement or representation
[233] I find that the statements made by United Voice to the media were made in the course of bargaining. I do not accept the submission of United Voice that its media comments, in an effort to garner public support were a process separate from enterprise bargaining. This is particularly so when, as determined below, many of the statements are false and misleading representations. The statements were made to bring as much pressure as could be reasonably made on CPPL to change its position on some bargaining issues because of the intense media scrutiny on the beer brand.
[234] The first restraint CPPL seeks against United Voice is for the Commission to order that United Voice be restrained from making, publishing, disseminating or distributing any statement or representation (whether in or to the media, in or on social media or howsoever otherwise) to the effect that CPPL has threatened to, is threatening to, wants to or intends to close or shut down the [Brewery] or "Site".
[235] The Commission would only be persuaded to do so such a thing if firstly, the media statements made by United Voice constituted capricious or unfair conduct that undermines collective bargaining, and secondly, it was satisfied that it is reasonable in all the circumstances to do so.
[236] The relevant PowerPoint presentation slide is reproduced below:
The long term viability of our brewery at XXXX is dependent on our ability to be flexible and responsive to changes, at a level that we have not seen in the past
Staying the way we are is not an option for the long term
3. Commercially viable with realistic wages and conditions"[65] (Original emphasis)
[237] The above slide was presented to Employees in July 2017 and later reproduced in an email to Employees in March 2018. Despite Ms Wicks' evidence and CPPL's submissions that the slide did not constitute a "threat" to close the Brewery, I consider that the language used is forceful and suggestive of an ultimatum, constituting a threat.
[238] The title, "Company Critical Position" is alarming. The Macquarie Dictionary provides the following definitions, among others, for the word 'critical':
relating to, or of the nature of, a crisis; of decisive importance with respect to the outcome; crucial: the critical moment;
involving suspense, risk, peril, etc.; dangerous: a critical shortage.
[239] The moment the phrase, "The long term viability of our brewery is..." was pronounced, it lends one to think what might affect the long-term viability of the Brewery? Is the long-term viability of the Brewery an issue? Who makes decisions regarding the long-term viability of the Brewery?
[240] When it is coupled with a highlighted statement, "Staying the way we are is not an option for the long term", it is, of course, a highly alarming and threatening statement. The statement means what it says; not an option means it cannot continue in its present form.
[241] When a husband and wife hold a discussion that the long-term viability of their marriage is dependent on their ability to be flexible and responsive to change, and staying the way "we" are is not an option, it suggests that if things do not change, the marriage will be over. In the same way, if a parent states to teenage children that the long-term viability of the family's budget is dependent on the family's ability to be flexible and responsive to changes, and staying the way "we" are is not an option, it suggests that the family's budget must be reined in, or the family will be broke.
[242] By including the highlighted "staying the way we are is not an option", this results in a cry for action; an end result to the satisfaction of CPPL is needed. If such a result does not occur, a resulting, adverse event will occur.
[243] The evidence of United Voice is that CPPL has made this statement and repeated it recently, so when CPPL denies it has plans to close the Brewery if flexibilities are not achieved, United Voice does not "believe" CPPL.
[244] On 12 April 2018 United Voice wrote to CPPL, and relevant to the Brewery, requested CPPL answer if CPPL regards the continuing operation of the Brewery as commercially viable. CPPL responded as follows:
As communicated to you on a number of occasions, including in our letters of 7 March, 13 March and 26 March 2018, the Company has no plans to close the Milton Brewery and has never said that it intends to close the Milton Brewery. Despite this, United Voice continues to make statements to the media to the effect that the Company is threatening to close the Brewery. We trust that in light of this most recent reassurance, no such statements will continue to be made.
United Voice has made recent comments to the media (including in the 10 April 2018 Courier Mail article) that refer to an email the Company sent to employees which included words to the effect that "long term viability of our brewery at XXXX is dependent on our ability to be flexible and responsive to changes at a level that we have not seen in the past''. This statement was not a threat or reference to jobs/production moving interstate, to the ongoing commercial viability of the Milton Brewery or to the Brewery closing. Rather, this statement means that the Company is operating in a very competitive market and must continuously look for ways to improve the quality of our products and to produce them more efficiently and at lower cost to the customer (whilst maintaining a safe operation). Our competitors are all working to these objectives, so we must too, or risk being left behind."
[245] It is noted that in the response sent by CPPL it refers only to the sentence, "The long term viability of our brewery at XXXX is dependent on our ability to be flexible and responsive to changes, at a level that we have not seen in the past." It does not reference the following sentence which I have stated above constitutes language that is forceful and suggestive of an ultimatum, constituting a threat.
[246] When pressed at hearing by me in closing submissions, CPPL stated:
"...I can now say, definitively, on instructions, that to the extent anything we have said in the PowerPoint presentation or the subsequent email referring to it that could be characterised in any way, shape or form as an imputation, implication or implied threat about plans to close the brewery, that was not meant, it was not intended and it is wholly retracted.
Further, and consistent with the position that the company has repeatedly stated, I can say, on instructions, to this Commission that the company does not intend to, does not want to and has no plans to close the brewery."
[247] Having received earlier correspondence from United Voice at [142] that United Voice is not reassured by any statements made by CPPL to United Voice or publicly because United Voice does not believe CPPL, it is not surprising that United Voice did not accept the commitment given by CPPL at [244]. If United Voice was not going to accept any statement made by CPPL because it didn't "believe" it, one has to wonder why United Voice bothered asking at all?
[248] I am, accordingly, critical of United Voice for taking a position that despite what CPPL might put in writing in answering questions put to it by United Voice, the union formed its own view of what CPPL intended to do with the Brewery. It had no regard to the answer given to it by CPPL. I am not satisfied, however, that the conduct of United Voice on this point constitutes capricious or unfair conduct that undermines collective bargaining when it was entitled to, and having regard to the PowerPoint presentation and email, reasonably believe that the statement made by CPPL constituted a threat to the Brewery.
[249] If the explanation provided at [246], the effect being a retraction of any imputation that the words used by CPPL constituted a threat or ultimatum to close the Brewery had earlier been provided, it would have gone a very long way to addressing the concerns of United Voice. It is disappointing that only when pressed by the Commission did CPPL take what I consider to be an appropriate, prudent and healing step towards addressing the legitimate fears of Employees based on all of the words used by CPPL in the PowerPoint slide.
[250] For the sake of clarity, I am not satisfied that where United Voice has earlier expressed concerns that CPPL has threatened to or is threatening to close or shut down the Brewery, it had engaged in capricious or unfair conduct that undermines collective bargaining. I trust, however, that given the statement made during the hearing at [246], such further utterances by United Voice will not be made.
[251] Where United Voice has expressed to the media or stated on social media that CPPL "wants to or intends to close or shut down the [Brewery]", I accept that United Voice has engaged in capricious or unfair conduct that undermines collective bargaining. The most profound example of this is reported below from a newspaper article dated 10 July 2017:
"United Voice coordinator Damien Davie said management from Japanese controlled parent company Lion notified staff in June the Castlemaine Perkins brewery in Milton would be shut down."
[252] The statement from Mr Davie is false and misleading. During the hearing Mr Davie suggested that he had been misquoted. He also told the media that a "secret source" inside the Brewery had confirmed management had plans to close the Brewery. When pressed in cross-examination Mr Davie could not recall who the secret source might be. Mr Davie's evidence on these two issues was extremely disappointing and simply not believable. It would have been wise for Mr Davie to make appropriate concessions on these two issues.
[253] Relevant to the order sought at item 2(a), I am satisfied above, and consider it reasonable in all the circumstances to make an order to the following effect:
"......United Voice........be restrained from making, publishing, disseminating or distributing any statement or representation (whether in or to the media, in or on social media or howsoever otherwise) to the effect that:
CPPL wants to or intends to close or shut down the Site."
[254] The advisory caution at [250] should result in United Voice, from this date forward, refrain from making claims that CPPL has threatened to or is threatening to close or shut down the Site.
Threats to outsource, shift or move jobs interstate or offshore
[255] The second restraint CPPL seeks against United Voice is for the Commission to order that United Voice be restrained from making, publishing, disseminating or distributing any statement or representation (whether to the media, in or on social media or howsoever otherwise) to the effect that CPPL has threatened to, is threatening to, wants to or intends to outsource, shift or move jobs from the Site to interstate or offshore.
[256] United Voice has stated in the media that CPPL is "racing over the border to send more work down south...". At [44(e)] it was the media report and not United Voice or Mr Davie stating, "Lion wants to shift production interstate." United Voice is only responsible quoted statements of its officials, organisers and members. It is not responsible for what is ultimately written by a journalist if not quoted or referenced. I am satisfied, however, that the statement made at [44(k)] is a statement that CPPL has threatened to, is threatening to, wants to or intends to outsource, shift or move from jobs from the Site to interstate, and that in doing so, United Voice has engaged in capricious or unfair conduct that undermines collective bargaining. The statement is false and misleading.
[257] It is not clear where it has been suggested that United Voice has incorrectly claimed that CPPL wishes the product to be brewed offshore.
[258] At [44(p)], United Voice has been on notice that the assertion that CPPL wishes to move the production of XXXX interstate is rejected by CPPL. CPPL's evidence is that at appropriate times throughout the year and at is discretion, XXXX will be brewed at locations other than the Brewery, and this has been in place for some years. United Voice's criticism of an increase in this activity is not matched with evidence.
[259] Relevant to the order sought at item 2(b), but without reference to "offshore", I am satisfied above, and consider it reasonable in all the circumstances to make an order to the following effect:
"......United Voice........be restrained from making, publishing, disseminating or distributing any statement or representation (whether in or to the media, in or on social media or howsoever otherwise) to the effect that:
CPPL has threatened to, is threatening to, wants to or intends to outsource, shift or move jobs from the Site to interstate."
Threats to increase the use of interstate labour
[260] The third restraint CPPL seeks against United Voice is for the Commission to order that United Voice be restrained from making, publishing, disseminating or distributing any statement or representation (whether in or to the media, in or on social media or howsoever otherwise) to the effect that CPPL has threatened to, is threatening to, wants to or intends to increase its use of interstate labour at the Site.
[261] Mr Davie has repeatedly stated that CPPL wishes to or threatens to obtain labour from "over the border." His evidence on this issue is explored at [134]. I found Mr Davie's evidence to be unreliable when he suggested that what he means is that the labour hire company employing labour hire employees is from other than Queensland. In closing submissions Mr Reed quite properly conceded that Mr Davie was "gilding the lily" on this issue.
[262] I find that Mr Davie has repeatedly referred to CPPL wanting to or threatening to bring labour from "over the border" to mean that the employees would be other than residents of Queensland. It is quite a ridiculously parochial statement to make to the media, and one which Mr Davie would, on the balance of probabilities, know to be false and malicious. The statement is false and misleading.
[263] Relevant to the order sought at item 2(c), I have no trouble in accepting that United Voice has, on this issue, engaged in capricious or unfair conduct that undermines collective bargaining, and it is appropriate in all the circumstances to make an order to refrain United Voice from repeating such statements.
Threats to increase the use of supplementary labour at the expense of Employees
[264] The fourth restraint CPPL seeks against United Voice is for the Commission to order that United Voice be restrained from making, publishing, disseminating or distributing any statement or representation (whether in or to the media, in or on social media or howsoever otherwise) to the effect that CPPL has threatened to, is threatening to, wants to or intends to increase its usage of contractors, casuals, supplementary labour or other third party labour (howsoever described at the Site at the expense of, instead of or in exchange for, existing employees or workers at the Site.
[265] I am not satisfied that any of the media statements made by United Voice at [44] deal directly with purported statements that CPPL has threatened to or wants to or intends to increase its usage of contractors, casuals, supplementary labour or other third party labour at the expense of, instead of or in exchange for existing employees or workers at the Site.
[266] United Voice has demonstrated genuine concern that CPPL proposes in the Proposed Agreement to allow supplementary labour to work at the Brewery and be paid the CPPL permanent rate of pay for casually employed workers. That is, while the CPPL rate of pay is significantly greater than the modern award, supplementary labour engaged would receive the site rate of pay inclusive of the casual loading. If the award rate of pay was, for example, $20 as a permanent employee and $25 as a casual employee, if the site rate of pay was $40 per hour, CPPL wishes for the $40 per hour to be paid to casuals instead of $40 plus 25% = $50 per hour.
[267] There is, of course, nothing unlawful or indeed wrong in CPPL's desire to absorb significant over-award payments into the casual rate of supplementary labour. It is a bargaining position that CPPL is entitled to pursue.
[268] It should come as no surprise, however, that this is resisted by United Voice (and the CEPU) as genuine concerns are held that in the future, where a decision need be made as to whether to engage a directly employed worker or supplementary labour, the supplementary labour option is cheaper when the costs of annual leave, personal leave, paid public holidays and other entitlements are taken into account.
[269] CPPL submitted that because it does not currently employ direct casual employees there is currently no argument that supplementary labour would be "cheaper". CPPL is wrong on this issue. A supplementary casual employee paid $40 per hour (without regard for the margin to be paid to the supplier) is a significantly cheaper option for CPPL than employing a directly employed permanent employee on $40 per hour. The permanent employee is entitled to the following approximate paid leave entitlements:
(a) Annual leave - 4 weeks per annum: 4/48 = 1/12th = 8.33%
(b) Paid public holidays - approximately 11 days per annum = approximately 4.5%
(c) Paid personal leave - 10 days if all taken = approximately 4%
[270] The above is an approximate 17% of additional costs, based on the assumption, of course, that an employee takes all 10 days' personal leave per annum, but no paid compassionate leave. Other on-costs that employers experience with permanent employees includes the contingency of the payment of notice in lieu and accountancy standards for the incidence of redundancies.
[271] I am not satisfied that in any of the statements made by United Voice it has been said that CPPL has threatened to, is threatening to, wants to or intends to increase its usage of contractors, casuals, supplementary labour or other third party labour at the Site at the expense of, instead of or in exchange for existing employees or workers at the Site.
[272] I accept that United Voice holds a fear that CPPL's desire to introduce supplementary labour to the Site at the rates of permanent employees, with the casual loading absorbed into the over-award payment will result in a "cheaper workforce". It is demonstrably clear. I am not satisfied that the link has been stated by United Voice that if that occurs, it will be at the expense of existing employees or workers.
[273] It is appropriate for United Voice to be cautioned against making any future statements that might draw that link. I consider it appropriate that if United Voice holds concerns that future supplementary casual labour paid permanent rates of pay with the casual loading absorbed into the over-award payment will be a "cheaper workforce", they are entitled to hold and express those views. It is unclear on the evidence before the Commission where supplementary labour might be used. If CPPL is correct, it is in addition to the current workforce, and accordingly, such statements by United Voice relevant to its fears should not cause any alarm for CPPL.
[274] Accordingly I decline to make an order as sought relevant to item 2(d) of the order sought.
[275] At [44(p)] Mr Davie is quoted as stating, "[t]hey have already admitted to brewing XXXX in southern states, despite marketing our beer as 'the pride of Queensland'." For the same reasons at [261 - 263], I consider it reasonable in all the circumstances to make an order to the following effect:
"......United Voice........be restrained from making, publishing, disseminating or distributing any statement or representation (whether in or to the media, in or on social media or howsoever otherwise) to the effect that:
CPPL has threatened to, is threatening to, wants to or intends to outsource, shift or move production from the Site to interstate."
Statements as to why industrial action is being taken
[276] The sixth restraint CPPL seeks against United Voice is for the Commission to order that United Voice be restrained from making, publishing, disseminating or distributing any statement or representation (whether in or to the media, in or on social media or howsoever otherwise) to the effect that industrial action is organised by United Voice and taken by Employees for various reasons.
[277] United Voice is opposed to supplementary labour, howsoever named, being engaged on rates that result in the labour being a cheaper alternative to permanent employees. It is not inappropriate for United Voice and its members to campaign, including in the media for what they consider to be a better deal. So long as the caution suggested at [273] is heeded, United Voice is free to suggest that industrial action is being organised and undertaken at the Site in support of a campaign to maintain a 25% loading to casual, supplementary labour.
[278] Having been satisfied that it is appropriate to make orders at [259] and [263], it is appropriate in all the circumstances to make an order to the following effect:
"......United Voice........be restrained from making, publishing, disseminating or distributing any statement or representation (whether in or to the media, in or on social media or howsoever otherwise) to the effect that:
(a) Any industrial action in relation to the Site is being organised by United Voice and or taken by Employees:
For the purpose of supporting or advancing claims to keep jobs and production at the Site local, in Queensland or on home turf; or
Because of concerns about jobs and production at the Site being moved interstate."
[279] The Order will come into effect from today's date.
[280] Having had regard to the recent decision[66] of Deputy President Asbury in a related matter involving the parties, relevant to the interim order earlier issued by me, there will be a reasonable period of time afforded to United Voice, relevant to the Order's existence, to meet its obligations. A reasonable period of time is afforded to United Voice to publish the Order on its Facebook page and prominently on the homepage of its Queensland Branch internet page, and to text its members who are Employees, strictly in accordance with the Order.
[281] Further s.240 conferences with all bargaining representatives will now be convened in an attempt to finalise bargaining for the Proposed Agreement, with the Commission's assistance. I am prepared to meet with the bargaining representatives as regularly as is practicable to ensure an agreement is reached.
[3] Statement of Damien Davie Annexure DD-02.
[10] Statement of Ellie Bassingthwaighte dated 4 May 2018 at [3].
[11] Constituting a nuisance, interference with contractual relations or interference with trade or business by unlawful means.
[12] As to the statutory contraventions, see Esso Australia Pty Ltd v AWU [2015] FCA 758; (2015) 253 IR 304.
[13] Paragraph 14 of UV's letter dated 29 March 2018.
[14] See also sections 3(f) and 171 of the FW Act.
[15] Assuming for present purposes, their protected status.
[16] TWUA v Transit (NSW) Services Pty Ltd [2016] FWCFB 997 at [15]; CFMEU v Anglo Coal (Capcoal Management) Pty Ltd [2016] FWC 8847 at [97] (Asbury DP); CFMEU v Oaky Creek Coal Pty Ltd [2017] FWC 5380 at [165] (Asbury DP).
[17] APESMA v BHP Coal Pty Ltd [2012] FWA 4435 at [99] (Spencer C); CFMEU v Anglo Coal (Capcoal Management) Pty Ltd [2016] FWC 8847 at [103] (Asbury DP); CFMEU v Oaky Creek Coal Pty Ltd [2017] FWC 5380 at [165] (Asbury DP).
[18] CFMEU v Anglo Coal (Capcoal Management) Pty Ltd [2016] FWC 8847 at [104] (Asbury DP); CFMEU v Oaky Creek Coal Pty Ltd [2017] FWC 5380 at [165] (Asbury DP).
[25] Applicant's Submissions in Reply at [24].
[30] The requirement in s.229(4)(a)(i).
[34] ie. the discretionary requirement in s.230(1)(c) has not been satisfied.
[35] Statements in items 1, 3, 4, 6, 9 and 10 in the letter of concerns of 26 March 2018; Statement of Michelle Wicks Annexure MW-16, pp.87-89.
[36] Statement of Damien Davie dated 4 May 2018 (Davie statement) at paragraphs 85, 89.
[37] Attachment 2 to the application at p.4 item 2; Statement of Michelle Wicks Annexure Annexure MW-16, p.90.
[40] See Jupiters Limited v United Voice [2011] FWA 8317 at [38]- [40]; TWU v Veolia Transport Queensland Pty Ltd [2011] FWA 5691 at [65]- [68]; AMMA v MUA [2016] FWC 738 at [22]- [24], [34]-[38], [53]-[55], [121].
[41] Davie statement at paragraphs 5, 32-37, 44, 64, 67 and Annexure DD-02.
[43] See the correspondence of 7 March 2018 (Castlemaine Perkins), 12 March 2018 (United Voice); United Voice draft "Staffing and supplementary labour" clause 9 March 2018); correspondence of 13 March 2018 (Castlemaine Perkins), 10 April 2018 (United Voice); United Voice draft "Job security and third party labour" clause 10 April 2018; correspondence of 11 April 2018 (Castlemaine Perkins); Statement of Michelle Wicks Annexures MW-14 (pp.77-81), MW-15 (pp.82-86), MW17 (pp.93-96), MW-23 (pp.161-163), MW-31 (pp.204-206).
[44] Statement of Michelle Wicks Annexure MW-15 p.86.
[45] Statement of Michelle Wicks Annexure MW-16, p.91.
[46] Statement of Michelle Wicks Annexure MW-31, p.204.
[47] Statement of Michelle Wicks Annexure MW-31, p.204.
[48] Statement of Michelle Wicks Annexure MW-14 p.77-78.
[49] Statement of Michelle Wicks Annexure MW-23 pp.161 and 163.
[50] Statement of Michelle Wicks Annexure MW-15 p.84.
[51] Albeit contingent on acceptance of the pay parity clause (cl.10.5.3) proposed by United Voice on 10 April 2018; cf Endeavour Coal Ltd v APESMA [2012] FCA 764; (2012) 206 FCR 576 at [43].
[52] When the subclause became clause 10.5.1(b); Statement of Michelle Wicks Annexure MW-17 pp.95-96.
[53] Selvachandran v Peteron Plastics (1995) 62 IR 371 at 373.
[55] (1992) IR 82 at 89.
[63] Australian Mines and Metals Association v Maritime Union of Australia (No.3) [2016] FWC 738.
[65] Statement of Damien Davie Annexure DD-02.
[66] Castlemaine Perkins Pty Limited T/A Castlemaine Perkins v United Voice [2018] FWC 4470
Printed by authority of the Commonwealth Government Printer
Castlemaine Perkins Pty Limited T/A Castlemaine Perkins
United Voice [2018] FWC 2979
(2015) 253 IR 304
(2012) 206 FCR 576
(1995) 62 IR 371