s.229 - Bargaining order

Terminals Pty Ltd T/A Quantem Bulk Liquid Storage & Handling

Application for a bargaining Order - application for interim orders - granted in part.

• [1] On 12 August 2024, the United Workers' Union (UWU) made an application for bargaining orders directed at Terminals Pty Ltd (Quantem) in the context of negotiations for two enterprise agreements. One is a replacement agreement covering the Respondent's employees at the Geelong terminal. The other is the first enterprise agreement that is proposed to cover employees at regional terminals, including Fremantle, as employees are presently covered by a modern award and individual arrangements.

• [2] The UWU contends that Quantem has not and is not meeting good faith bargaining requirements, by its actions in taking disciplinary action against two UWU delegates: Mr Stolk and Mr Hutchison. The disciplinary action is the standing down of the two delegates and issuing a show cause notice to each of them. The two men were stood down over their actions in each forwarding a single document to the UWU, which is said to be confidential and in breach of Quantem's policies and their contracts of employment. The UWU contends that in the context of the bargaining for the two agreements, the conduct is capricious and unfair conduct which undermines collective bargaining and freedom of association.

• [3] This decision deals with the UWU's application for interim orders pending final determination of the application, or further order. The UWU seeks interim orders restraining the Respondent from:

(a) dismissing Stolk and Hutchison from their employment for any reason related to the conduct of Stolk and Hutchison that was the subject of the investigation conducted by the Respondent from 31 July 2024;

(b) requiring, or continuing to require, Stolk and Hutchison to participate in a "show cause" process as to why they should not be dismissed for the same reason(s);

(c) suspending, or continuing to suspend, Stolk and Hutchison from their employment for the same reason(s).

• [4] The application for interim orders was heard on 16 August 2024 at which Mr Stolk and Mr Hutchison for the UWU, and Mr Bath, General Manager Operations for Quantem, gave evidence. Each witness was cross-examined. I found each witness to have given truthful and credible evidence, that was not disturbed in any significant respect through cross-examination. In particular, I found Mr Stolk and Mr Hutchison to be honest and genuine in their explanations for their conduct and their belief about whether the documents were confidential at the time they sent them to the UWU. I accept their evidence.

• [5] Quantem provides bulk liquid storage terminals across Australia and New Zealand for products including chemicals, petroleum products, vegetable and edible oils. It operates 9 terminals in Australia located at: Geelong, Port Botany, Pelican Point, Largs Bay, North Fremantle, Port of Melbourne, Pinkenba, and Devenport. It has approximately 181 employees and is a privately owned company.

• [6] Relevantly, non-management operational employees of Quantem at Geelong are covered by the Terminals Pty Ltd (Geelong) - National Union of Workers Enterprise Agreement 2018 (Geelong Agreement) which has a nominal expiry date of 31 May 2023. Operators at Devenport, Fremantle, Largs Bay and Pelican Point Terminals (Regional Terminals) are covered by the Oil Refining & Manufacturing Award 2020.

• [7] Bargaining for a replacement at the Geelong site commenced on or around 23 May 2023 and a proposed agreement for the Regional Terminals on 24 January 2024.

Bargaining for the proposed Regional Terminals agreement

• [8] There are 3-4 terminal operators at the Fremantle Terminal, and small numbers at the other Regional Terminals. Scott Hutchison is a terminal operator at the Fremantle Terminal and a UWU delegate. He has been employed at the site since 2017 when it was operated by GrainCorp, and offered employment by Quantem when it acquired the terminal in 2019.

• [9] Mr Hutchison was instrumental in initiating bargaining for the Regional Terminals, after identifying that the terminal operators at Fremantle were being paid significantly less (around $40,000) than other Quantem sites with union collective agreements. From his prior experience including as a member and site delegate for the Maritime Union of Australia, he explained to his co-workers what enterprise bargaining was and suggested that they contact a union to assist. Mr Hutchison approached the UWU in around mid-2023, and had discussions with Mr Shane Reside, a UWU official, who suggested they would have more leverage and bargaining power if operators at other regional terminals covered by individual agreements were involved. Mr Hutchison contacted operators at other regional terminals, passed on his contacts to the UWU, and joined and signed up all the other operators at Fremantle to be members of the UWU. In October 2023, Mr Hutchison was nominated to be the union delegate, given his efforts and that he was the only person at the Fremantle Terminal with previous experience with bargaining and being a union delegate. Most of the operators at the other regional terminals also joined the UWU and meetings were held leading to Mr Hutchison holding a meeting and obtaining endorsement of the Fremantle members to bargain for a single agreement across the Regional Terminals.

• [10] On 24 January 2024, Quantem agreed to bargain for an agreement covering the Regional Terminals and issued a Notice of Employee Representational Rights. The first bargaining meeting was held on 9 February 2024.

• [11] Mr Hutchison was again instrumental in developing and obtaining endorsement for the log of claims presented to Quantem on 16 February 2024. The UWU was seeking a draft agreement modelled on the Coode Island enterprise agreement.

• [12] Five bargaining meetings have been held, with Mr Hutchison attending them all and then reporting back to members. Quantem did not respond to the UWU's log of claims nor present their own log of claims during the first three meetings, with the last held on 20 March 2024. UWU members were getting frustrated at what it considered to be stalling tactics by Quantem. After the third meeting, a meeting of members across the Regional Terminals was held, at which the members unanimously endorsed the UWU applying for a protected action ballot. The ballot was declared, following a vote, on 24 April 2024.

• [13] At the fourth meeting on 3 June 2024, Quantem's representative indicated that Quantem was still not ready to present an offer in response to the union's claims but would 'hopefully' be in a position to do so by 14 June 2024. When this did not occur, another union meeting was held where members decided to take protected industrial action between 20-26 June in the form of work bans.

• [14] Quantem presented a draft agreement on 17 June 2024, which provided for conditions which were in some cases worse than their current conditions under the individual contracts and bore no resemblance to the Coode Island agreement.

• [15] Since then, UWU members have engaged in a series of escalating protected action including stoppages of work and other bans.

Bargaining for the replacement Geelong Terminal agreement

• [16] At the Geelong Terminal there are 8 permanent terminal operators and a small pool of around 3 labour hire casual employees. Jason Stolk is a terminal operator at the Geelong Terminal and a UWU delegate. He has been employed by Quantem since 30 August 2022 after working as a labour hire casual since 2019.

• [17] He became a UWU delegate in early 2023, as the members discussed preparing to commence negotiations for an agreement to replace the Geelong enterprise agreement which reached its nominal expiry date on 31 May 2023. There is one other delegate at Geelong.

• [18] Bargaining commenced on 28 July 2023, at which the UWU presented its log of claims that Mr Stolk and the other delegate had helped to develop. Fourteen bargaining meetings have been held to date. No substantive agreement has been reached.

• [19] Quantem tabled its proposed draft agreement on 14 December 2023, which included a significant reduction in entitlements which had not been raised at any of the previous 7 bargaining meetings.

• [20] Mr Stolk started discussing with Members the need to escalate matters through an application for a protected action ballot order, and when he felt confident that all members were 'on board', he organised a mass meeting of all members at which the position was endorsed. A protected action ballot order was declared on 26 April 2024.

• [21] UWU members started taking protected action on 4 June 2024, which has included rolling 24-hour stoppages and bans. In each instance, Mr Stolk has been responsible for discussing and securing endorsement for the proposed action with members and coordinating the timing of the 24-hour stoppages.

• [22] During the stoppages, Quantem has had staff members undertake the work of the terminal operators in discharging the vessels and managing terminal operations. Given the hazardous, flammable and combustible nature of the products involved, connecting and disconnecting ships, overseeing the discharge of product and assisting with loading general chemicals road tankers are each specialised skills with associated training modules that need to be completed prior to an employee being able to safely perform the duties.

• [23] No bargaining meetings have been held between 5 June and 8 August 2024 for the Regional Terminals agreement or between 17 June and 30 July 2024 for the Geelong agreement. When asked whether he agreed that the frequency of bargaining meetings had decreased, Mr Bath's evidence was that this was only because of time and availability. He agreed that there has been escalating industrial action, and that Quantem was disappointed by this, but said that it was the employees' right to take industrial action. Mr Stolk and Mr Hutchison's evidence is that there has been no agreement reached on any of the substantial bargaining claims. However, Mr Bath did not agree that the parties are not close to agreement, saying that bargaining and dialogue are continuing. He denied that the industrial action was in his mind or formed part of his reasoning in the decision to stand down the two men.

• [24] In June 2024, Quantem email accounts were searched for emails sent to the email addresses of UWU officials as part of an internal investigation. The search was initiated because Quantem had concerns that confidential financial information may have been shared with the UWU. The internal investigation disclosed that:

(a) On 18 March 2024, Mr Hutchison had forwarded an email sent to him by Jim Speirs, the WA Terminal Manager, to UWU official, Shane Reside. The email contained a document titled "Month End Report" containing Quantem's preliminary financial results for December 2023 and the full 2023 year.

(b) On 27 June 2024, Mr Stolk had forwarded an email to a UWU official, Ms Sukanya Ananth, attaching a spreadsheet titled "Geelong Training Matrix 2023". This spreadsheet is produced by Quantem for internal purposes showing the status of various training courses for Quantem employees at the Geelong Terminal. It contains the personal names of all operators employed at the Geelong Terminal (whether union members or not), their training status and operational information about Quantem's approach to safety and training for employees based at that Terminal.

• [25] On 9 July 2024, Quantem engaged an external investigator to conduct a factual investigation of the two disclosures.

• [26] On 11 July 2024, Mr Hutchison was suspended on full pay pending the outcome of the investigation and any disciplinary action. On 12 July 2024, Mr Stolk was also suspended on full pay pending the outcome of the external investigation. Both were advised that the investigation was into "potential instances of non-compliance by you with Quantem's Code of Conduct, your employment contract and its polices which are binding on you as a consequence of your employment with Quantem" and that "while this letter outlines the concerns that have been raised which have led to your suspension, the investigation into this matter is currently pending and no formal allegations have been particularised at this point."[1] Quantem's Performance Counselling and Disciplinary Policy does not necessarily involve an employee being suspended during an investigation. It states that it is possible in some circumstances that an employee may be suspended with pay.

• [27] Mr Stolk was advised that he had been stood down because Quantem "has identified correspondence sent from your email address to Ms Sukanya Ananth containing confidential information. This includes at least one occasion where on 27 June 2024 a confidential training record matrix was sent from your email account to Ms Ananth. This document contained the personal information of all employees at the Geelong Terminal."[2]

• [28] Mr Hutchison was advised that "the reason you have been stood down is that it has identified correspondence sent from your email address to Mr Shane Reside containing confidential information. This includes at least one occasion where on 18 March 2024 an email was sent from your email address to Mr Shane Reside which attached Quantem's Month End Report for December 2023. This document included highly sensitive and commercial financial information."[3]

• [29] Mr Bath's evidence was that the delegates were stood down because of concerns 'they may send further confidential material to the UWU or an external party if they were not suspended and their email accounts restricted. Given the seriousness of the allegations, Quantem wanted to ensure that there was integrity over the investigation process and that neither Scott nor Jason would speak with other employees about the subject matter of the investigation to preserve confidentiality of this process."[4]

• [30] Particulars of the allegations were sent to both men on 16 July 2024. In relation to Mr Hutchison:

"It is alleged that at, or around, 2.42pm on Monday 18 March 2024, you sent an email to Shane Reside of the United Workers Union forwarding an email from Jim Speirs (Quantem Terminal Manager WA) that had been sent to you, which in turn forwarded an email from Stephen Rasdell (Quantem Chief Operating Officer). Mr Rasdell's email outlined Quantem's preliminary financial results for December 2023 and the full 2023 year. The email you sent to Mr Reside attached a document titled "Month End Report WDS Dec23", which contained further financial information.

A screenshot containing the heading information from the email described above is included as Appendix 1 to this letter (attachment omitted)."[5]

• [31] In relation to Mr Stolk, the particulars were:

"It is alleged that at, or around, 6.39am on Thursday 27 June 2024, you forwarded an email to Sukanya Ananth of the United Workers Union that was sent to you on Wednesday 26 June 2024. This email attached a spreadsheet titled "Geelong Training Matrix 2023". This spreadsheet is a document produced by Quantem for internal purposes showing the status of various training courses for Quantem employees at the Geelong Terminal.

A screenshot containing the heading information from the email described above is included as Appendix 1 to this letter (attachment omitted)."[6]

"In the event that the above allegation about your conduct is substantiated, your conduct may constitute a breach of:

• Quantem's Code of Conduct, dated 30 September 2021;
• Quantem's Electronic Access Policy, dated January 2020; and
• your contract of employment with Quantem dated 26 November 2019.

In circumstances where Quantem identifies a breach of one of the above policies, and/or your contract of employment, it may take disciplinary action against you, including action up to the termination of your employment."[7]

• [33] The letters of allegations did not particularise which terms of the Code of Conduct, Electronic Access Policy (EAP) or their contracts of employment were invoked.

• [34] After being directed to, both men attended meetings with the external investigator on 31 July 2024. Mr Hutchison and Mr Stolk both admitted to sending the emails.

Mr Hutchison's disclosure of the Month End Report

• [35] Mr Hutchison's evidence is that he was given the Month End Report by the WA Terminal Manager, Jim Speirs, following a discussion they had about the financial performance and health of the Fremantle site, where Mr Speirs took him through the document on his screen. Mr Hutchison asked for a copy of the document as he was not used to reading and interpreting financial information and wanted to go through the information more thoroughly at his own pace so he could understand what it meant.[8] Mr Speirs forwarded him the email he had received from Stephen Rasdell, Quantem's Chief Operating Officer.

• [36] When doing so, it seemed to him that the regional terminals had the best EBITDA and performed above budget but was unfamiliar with the term EBITDA and was not confident he was interpreting the information correctly.

• [37] At the second bargaining meeting on 7 March 2024, Quantem said that the UWU's claim for parity in pay and conditions with other terminals was unaffordable due to high operating costs of the regional terminals, which seemed inconsistent with Mr Hutchison's read of the Month End Report.

• [38] Preparing for the next bargaining meeting, he went back over the Month End Report and still found it confusing and was not sure how to interpret it. He had been regularly contacting Mr Reside from the UWU for advice on bargaining and "thought it was perfectly normal for me to forward the Month End Report to him in his capacity as our bargaining representative" to obtain his guidance on how to read and interpret the information.[9]

• [39] At the time Mr Hutchison did so, he did not think that the Month End Report was confidential or that he was potentially breaching Quantem's policies by doing so. He thought this because when Mr Spiers initially showed him and then sent him the document, he did not, at any point, indicate the information was confidential, or that he was not allowed to share it with anyone else.[10] Neither Mr Rasdell's nor Mr Speirs' email indicated that the document was confidential. The initial email from Mr Rasdell to Mr Speirs included words to the effect "please share this with your site/teams."[11] The Month End Report itself did not contain the words "confidential". When Mr Hutchison was presented with the allegations he went back and noticed for the first time that the words "commercial in confidence" were written in the footer from page 2 onwards. He had not seen this when he sent it to Mr Reside, and even if he had he would not have understood that it meant the information was confidential, with the meaning of the phrase only subsequently explained to him.[12] Mr Hutchison was also familiar with confidential information being marked in red or as a watermark across the first page, which was not present on the Month End Report.

• [40] Mr Hutchison was unaware when he sent the email to Mr Reside that the information was confidential and believed that company reports were in the public domain. In cross-examination, his evidence was that at the time, he did not know that Quantem was a privately owned business and not publicly listed.

• [41] In his response to the show cause notice, Mr Hutchison says that he regrets sending the email, and that if he had known that doing so contravened his obligations and could result in his dismissal, "there is no way that I would have sent this information to the Union. I meant no harm to the business."[13] He also states that he relies on the job to support his family, that he loves working for Quantem and cares about the future of the company, and that his 'dedication to making this workplace industry-leading is what motivated me to become a delegate.'[14] He also suggests that Quantem speak to Jacques O'Brien who was with him when he discovered that the document was confidential, as he would attest to his genuine surprise on learning this.

• [42] He also explained in cross-examination that part of his interest in understanding the financial position accurately was because he did not want the Union to overreach in its claims as he did not want to 'send the company broke'.

• [43] The UWU has confirmed to Quantem that it has destroyed the document.

Mr Stolk's disclosure of the Geelong Training Matrix 2023

• [44] A copy of the site Training Matrix displayed in the control room indicated that a number of the staff who were performing the operator's work during protected action, were not signed off as trained and competent to do so.

• [45] In the context of planned protected action being a ban on discharging product from vessels between 15-23 June 2024, the Health & Safety Representative, Danny Rayson, and another UWU member voiced concerns about the arrangements management had put in place including concerns that it would be unsafe for Jessica Norris, the Terminal Manager, to oversee the discharge. On 16 June 2024, Mr Stolk advised Mr Rayson to query Quantem's use of potentially untrained staff to perform Operator duties. Mr Rayson agreed to do so and requested Mr Stolk's assistance as delegate to raise and resolve the issue.

• [46] When Mr Rayson raised his concerns, Jessica Norris responded that all relevant staff had been trained and that the Training Matrix displayed was out of date.

• [47] Further protected action was notified with bans on 23-28 June 2024. Mr Stolk organised a meeting with members to discuss the issue, during which several members raised concerns about staff members performing work during the protected action that they may not be trained and signed off as competent to do so.

• [48] Mr Rayson agreed to formally write to Quantem requesting a copy of the current Training Matrix, and on 26 June 2024, Mr Rayson forwarded Mr Stolk a copy of the 2023 Training Matrix. Mr Stolk's evidence included:

[58] When I arrived at work just before 6:30 am on 27 June 2023 for my rostered shift, I had a brief conversation with Danny Rayson as part of his handover to me, during which he informed me that while he was on shift the previous night, he had located the more up-to- date version of the Training Matrix referred to by Jessica Norris and that he had forwarded a copy of the document to my work email address.

[59] Danny also mentioned that he had yet to go through the document in any detail and requested my assistance in reviewing it if I had time to do so during my shift. I informed Danny that I would forward the document to UWU Industrial Officer, Sukanya Ananth, and request her assistance in reviewing the document so she could best advise on next steps in the issue resolution process.

[60] Danny responded to this with words to the effect of, they definitely didn't like me asking questions and I've clearly hit a nerve with the request for the Training Matrix because Jess called me immediately and told me that she didn't want me to share it with the union. Danny was smiling as he recounted his conversation with Jessica Norris to me and it seemed to me that he was implying that Quantem management were panicking about his formal escalation of the issue.

[61] In this context, I understood Danny's comment about Jessica Norris calling him on the evening of 26 June 2024 to ask him not to share the 2023 Training Matrix with the UWU, to be a panicked expression of preference on her part, for us not to involve our union organiser in the matter, rather than as a direction not to share the document with the UWU.

[62] At no point during our brief exchange on the morning of 27 June 2024, did Danny indicate that Jessica Norris had advised him that Quantem regarded the 2023 Training Matrix to be 'confidential' or that we were under direction not to share it with the UWU.

[63] At this point in our bargaining campaign, I was talking to UWU Industrial Officer, Sukanya Ananth, every two days, to pass on any feedback from members on site and to discuss any upcoming, planned industrial action, as well as to get advice and representation on how best to address and resolve the safety issues raised by members in relation to staff performing Operator duties during periods of industrial action. I considered it to be part of my duties as a union delegate on site to share information relevant to our bargaining campaign, or to industrial or health and safety issues raised by union members on site, with our organiser, so I could then get advice and representation on those issues.

[64] Given the relative urgency of the health and safety concerns raised by members in relation to potentially untrained and unassessed staff performing Operator duties during periods of strike action, I forwarded the 2023 Training Matrix that I received from Danny Rayson to UWU official, Sukanya Ananth, from my work email at 06:39 am on 27 June 2024. I forwarded the document to Sukanya so that she could assist me with reviewing the document, which I otherwise would have very limited time to do whilst on shift, and to help identify the specific risks to the health and safety of the Operators at the Geelong Terminal, arising from staff performing tasks or duties in which they have not been trained or signed off.

[65] Our union organiser, Sukanya Ananth, did not ask me to forward the 2023 Training Matrix to her and in fact, at the time of my forwarding the document to her email address, she was not even aware of its existence, as all of us union members on site at the time believed it to be a concoction by Jessica Norris to avoid having to respond to, or address our safety concerns raised in relation to inadequate staff training in Operator duties.

[66] When I forwarded the 2023 Training Matrix document to UWU official, Sukanya Ananth, on 27 June 2024, I therefore did not think I was improperly passing on 'confidential' information in breach of any of my employment policies, particularly as the document itself was not in any way marked or identified as confidential.

[67] I later received a text message from Danny Rayson at 1:11 pm on 27 June 2024, in which Danny indicated that he felt that he had "hit a nerve asking for the training matrix" and that the 2023 Training Matrix "[could] not be shared externally." Annexed to this statement and marked "JS-1" is a screenshot of the text message.

[68] I was surprised to note Danny's comment in the text message he sent me on the afternoon of 27 June 2024, about the 2023 Training Matrix not being able to be shared externally, but by that point, as outlined above in my statement, I had already forwarded the document to UWU official, Sukanya Ananth, several hours prior.

[69] Even upon receiving Danny's text message, I did not consider that Jessica Norris would have characterised the 2023 Training Matrix document as "confidential" or the sharing of the document with our union organiser as constituting breaches of Quantem's Code of Conduct and other employment policies. I thought at the time that Danny might have been sent a threatening email from Quantem management, attempting to dissuade him from sharing the document with our union organiser, and I accordingly responded to his text message at 1:21 pm on 27 June 2024 by saying, "can't wait to see the reply."

[70] As the site union delegate, the last thing I would want to do is to inadvertently get another union member on site in trouble. Had I understood from my brief exchange with Danny Rayson at 6:30 am on 27 June 2024, that Jessica Norris had suggested that the 2023 Training Matrix was "confidential" or that she was going to confirm in writing whether the document could be shared with our union organiser, I would have waited to have a further discussion with Danny Rayson about pushing back in writing, or at the very least, I would have first sought advice from our union organiser, Sukanya Ananth, on how best to proceed on the issue without getting either Danny Rayson or myself in trouble."[15]

• [49] Mr Stolk was cross-examined about his actions. In oral evidence he expanded on the safety concerns he and other UWU members had about the staff members undertaking the work. He said that their concerns were in relation to the safety of the staff members themselves, the potential for damage to Quantem's assets, and also a concern for the terminal operators, who faced potential safety risks when they returned to perform their duties and did not know what they "we're gonna walk back into", such as if a valve had been left open. When it was put to him that the training and competencies of staff employees had nothing to do with the union, his response was:

Mr Stolk: With all due respect, ma'am, yes it does, because we're not dealing with fairy floss here. We're dealing with flammable liquids and things that can actually kill people, so this isn't a minor matter that we will try to get to the bottom of this. This is serious consequences when people get it wrong, so please respect what, the environment that we work in and how dangerous an environment it is that we work in.

Counsel for Quantem: OK, but it doesn't... their training and competencies has nothing to do with any claims that the UWU was making in the bargaining, does it?

Mr Stolk: This this is not the point. The the point is that we've got people undertaking duties that were highly dangerous and that could actually harm, kill human beings or or seriously damage an asset.

• [50] When cross-examined about whether he thought Jessica Norris was lying when she said that the Training Matrix was out of date, he said 'yes'. The following exchange then took place:

Counsel for Quantem: Did you ask any of the relevant staff people who were going to be doing these duties and about whose health and safety you were concerned, did you ask them if they had the right training and competencies to do the work?

Mr Stolk: They were muzzled. They were told they were not to talk to us categorically.

Counsel for Quantem: That wasn't my question, Jason. Did you ask any of them?

Mr Stolk: They weren't allowed to talk to us. It was a directive from management that they were not to talk to us at all about any of these topics.

• [51] Also in cross-examination, Mr Stolk's evidence was that he did not feel he had done anything wrong, because there was nothing on the Geelong Training Matrix 2023 that indicated it was confidential, it was not on Quantem letterhead, and was a plain pdf copy of an excel spreadsheet.

• [52] The UWU has confirmed to Quantem that it has destroyed the document.

• [53] Based on admissions made regarding the emails, the investigator informed Quantem on 5 August 2024 that the factual allegations were substantiated.

• [54] Quantem then commenced a show cause process on 7 August 2024. Mr Bath's evidence is that he commenced the show cause process solely on the basis that he considered their admitted actions constituted a breach of their employment contracts, Quantem's Code of Conduct, and its Electronic Access Policy and not because of their roles as UWU delegates or their involvement in bargaining. He states that "given the nature of Quantem's business involving the transportation of dangerous and highly combustible liquid materials I take non-compliance with company policy and procedure extremely seriously. I had concerns (and continue to have those concerns) about both Scott and Jason's ability to perform their roles in compliance with Quantem's polices."[16]

• [55] Mr Bath's evidence is that his view is that the email disclosures constitute a breach of:

(a) Clauses 5.5-5.10 of Quantem's Code of Conduct. The Code of Conduct, among other things, requires employees of Quantem to keep information that meets the definition of "Confidential Information" secure and to not send this material externally without the prior consent of Quantem's Chief Executive Officer.

(b) Clause 4.8 of Quantem's Electronic Access Policy. The Electronic Access Policy probits employees of Quantem from sending or disseminating Quantem proprietary data, or any other information deemed confidential by Quantem, to unauthorised persons.

• (c) Clauses 24.1 and 24.3 of [Mr Hutchison's] employment contract and clauses 25.1, 25.2 and 25.3 of [Mr Stolk's] employment contract. These clauses impose contractual obligations on [Mr Hutchison] and [Mr Stolk] to maintain confidentiality over Quantem's information and documents that they have access to through their employment and to not disclose this information externally.[17]

• [56] On 7 August 2024, both men were issued a Notice to Show Cause.

• [57] Mr Hutchison was informed that the allegation in the 16 July letter had been substantiated. The letter stated that Quantem considers that finding to be serious, and continued that:

"The Month End Financial Report document that you sent to the UWU constitutes confidential information. This document contained a significant amount of confidential financial information including Quantem's EBITDA performance against its budget, information on Quantem's cash flows, and site performance metrics. As Quantem is a private company this information would not be made public and the document is clearly marked "Commercial in confidence".[18]

• [58] The letter then set out that by engaging in that misconduct, he had breached:

(a) Clauses 25.1, 25.2 and 25.3 of his employment contract by not maintaining confidentiality over the Month End Report, by disclosing it to the UWU and by not using his best endeavours to prevent its use and disclosure;

(b) Clauses 5.8 and 5.9 of the Code of Conduct by sending the Month End Report which was confidential information within the meaning of clause 5.5 of the Code; and

(c) Clauses 4.8.d and 4.8.i of the EAP by sending the Month End Report which was confidential information within the meaning of clauses 4.7.c of the EAP to unauthorised persons, and by sending personal information of other operational employees without authorisation.

• [59] Mr Stolk's notice to show cause similarly informed him that the allegation had been substantiated and that Quantem considers that finding to be serious. The letter then continued:

"The Geelong Training Matrix 2023 document that you sent to the UWU constitutes confidential information. This document contained the names of each operational employee employed by Quantem at the Geelong Terminal, which is personal information under the Privacy Act 1988 (Cth). This document further contains sensitive operational information for Quantem, including its procedures and processes relating to the company's training and safety of operational employees at the Geelong Terminal.

As you know, the UWU requested the training matrix document from Quantem on 26 June 2024. Quantem refused this request at the time. You however sent this document to the UWU the following day on 27 June 2024, which the company considers was a deliberate act by you to circumvent Quantem's management decision."[19]

• [60] Mr Stolk was informed that by engaging in that misconduct, he had breached:

(a) Clauses 24.1 and 24.3 of his employment contract by disclosing confidential information about Quantem to the UWU which was not required by law, not made as part of his employment duties and was expressly not agreed by Quantem, and by not using his best endeavours to prevent the disclosure;

(b) Clauses 5.8 and 5.9 of the Code of Conduct by sending the Geelong Training Matrix which was confidential information within the meaning of clause 5.5 of the Code and contained personal information within the meaning of the Privacy Act 1988 (Cth); and

(c) Clauses 4.8.d and 4.8.i of the EAP by sending the Geelong Training Matrix which was confidential information within the meaning of clause 4.7.c of the EAP to unauthorised persons, and by sending personal information of other operational employees without authorisation.

• [61] Both letters stated that it is reasonable for Quantem to expect them to have been aware of, and comply with, their obligations under the above policies and codes of conduct given they have previously acknowledged that they had read and signed each of these documents.

• [62] Mr Bath gave evidence that he holds particular concerns about Mr Stolk's disclosure because he sent the Geelong Training Matrix 2023 to the UWU only a month after receiving an email from the Terminal Manager directly informing terminal operators not to send confidential information to external parties. The email was sent to an email group for Geelong operators, which includes Mr Stolk. Mr Stolk was cross-examined about receiving this email, and his evidence was that there are hundreds of emails sent through that platform, and because of the way shifts are rostered, he is not on site often and when he is there, there is not enough time to go through them all. He does not recall seeing the email in question. Mr Bath's evidence is that the email was also posted in the control room and raised during pre-start meetings with operators, however Mr Stolk was not cross-examined about this, and there is no evidence that he saw the email.

The Code of Conduct, Electronic Access Policy, Contracts of Employment

• [63] The Code of Conduct sets out the standards that Quantem's directors, officers, employees, contractors and agents are expected to conduct themselves against. Under the heading "Protecting Quantem's Assets", the Code dictates expectations including to "maintain confidentiality of all information, records or other materials acquired during your employment or engagement with Quantem."

• [64] The notices to show cause issued to the delegates, advised them that the email disclosures contravened clauses 5.8 and 5.9 of the Code of Conduct. However, as noted above, Mr Bath's evidence is that in his view, the two emails contravened clauses 5.5-5.10 of the Code of Conduct which "among other things, requires employees of Quantem to keep information that meets the definition of "Confidential Information" secure and to not send this material externally without the prior consent of Quantem's Chief Executive Officer."[20]

• [65] Clause 5.5 is a definitional clause, defining "Confidential Information" to include "confidential information .... such as information about the business and affairs of Quantem such as its products, services offered, financial accounts and reports, customers, marketing and/or strategy plans, client proposals, sale plans, client prospects, information about fees, pricing information, supplier lists, research, financing, inventions, designs, procedures or processes, security information, sales and training materials, and operational information and methods."[21] Clause 5.6 similarly imposes no obligation, but states that persons covered by the Code may also be required to deal with personal information, including that relating to Quantem employees, contractors, suppliers, customers and other stakeholders. Clause 5.7 notes that 'we are all accountable for safeguarding Confidential Information and Intellectual Property and maintain privacy of personal information.' Clause 5.8 imposes an expectation to:

• Secure custody of Confidential Information in your possession or control;
• Use your best endeavours to prevent the unauthorized use or disclosure of Confidential Information;
• Comply with all applicable privacy laws when handling personal information; and
• Respect Quantem and third-party intellectual property rights.

• [66] Clause 5.9 provides that "[y]ou must not, at any time during or after the termination of your employment for any reason, directly or indirectly disclose or use (or attempt to disclose or use) any Confidential Information for your own benefit or the benefit of any other person or entity."

• [67] Clause 5.10 provides that "[y]ou must not, without the prior consent of the Chief Executive Officer of Quantem, communicate with or disclose to any representative of the media any information of any nature whatsoever relating to Quantem or its customers, or otherwise purport to make any public comment on behalf of any of them. In most cases the Chief Executive Officer or authorised delegate will be the only individual making any public comment on behalf of Quantem."

• [68] It is apparent from the above terms that the email disclosures could potentially only constitute a breach of clause 5.8 or 5.9 of the Code of Conduct, and only if the disclosure was Confidential Information and was disclosed for the benefit of Mr Hutchison or Mr Stolk respectively or the benefit of another person or entity. Contrary to Mr Bath's belief, it is not a breach of the Code of Conduct to send any confidential information externally without the prior consent of Quantem's CEO.

• [69] I consider it likely that both the Geelong Training Matrix 2023 and the Month End Report are confidential information within the meaning of the Code of Conduct given the broad definition. I consider it likely therefore that both men contravened clause 5.8 of the Code. In respect of clause 5.9, Quantem has not explained either to the two men during the investigation process, nor during the hearing, how the disclosure is alleged to have been for their personal benefit and/or the benefit of the UWU. Their sworn evidence, undisturbed by cross-examination, was that the disclosures were for the purpose of understanding and analysing the documents and/or obtaining advice from the UWU in relation them. This may possibly be construed to be a benefit of the requisite kind, but it is not unambiguously so.

• [70] The EAP has a different definition of Confidential Information at clause 4.7.[22] Clause 4.7 includes: Employees may have access to confidential information about Quantem, other employees and clients. With the approval of management, employees may use email to communicate confidential information internally to those with a need to know. Such email must be marked 'confidential.' The clause goes on to state that for the purposes of the policy, confidential information includes, but is not limited to the specified types of information set out therein. The specified types of information does not include either financial information or personal information relating to Quantem's employees.

• [71] Clause 4.8 of the EAP sets out a list of 18 activities employees are prohibited from using Quantem's systems for. They include downloading software without approval, making offensive or harassing statements, and searching for outside employment. They also include: "4.8.d - Sending, printing or otherwise disseminating Quantem proprietary data, or any other information deemed confidential by Quantem, to unauthorised persons" and "4.8.i - Sending or forwarding a message that discloses personal information without Company authorisation. This shall also include accessing, transmitting, receiving or seeking confidential information about clients or fellow employees without authorisation."

• [72] The clause does not include a specific definition of what confidential information constitutes but enlivens a prohibition on disclosure to unauthorised person of any information deemed confidential by Quantem (emphasis added). This means that employees face jeopardy in disclosing any information of any kind because Quantem can deem any information to be confidential. There is no evidence that Quantem so deemed either the Month End Report or the Training Matrix 2023 before the emails were sent, or if they did, did not communicate this to Mr Stolk or Mr Hutchison. In relation to Mr Hutchison, the Month End Report was not included in the definition in clause 4.7, and it has not been explained whether it is claimed to be proprietary data and if so, on what basis. I am presently not persuaded that Mr Hutchison has clearly breached either 4.8.d or 4.8.i of the EAP. In relation to Mr Stolk, the Training Matrix 2023 does contain personal information and is likely caught by the prohibition in 4.8.i. In short, it is not without doubt that Mr Hutchison has contravened the EAP at all, although Mr Stolk likely breached clause 4.8.i.

• [73] In relation to the allegations concerning breach of their employment contracts, Mr Stolk was found to have breached clause 24.1 and 24.3 of his contract. Mr Hutchison was found to have breached clauses 25.1, 25.2 and 25.3 of his employment contract. Clause 24.1 and 24.3 of Mr Stolk's contract, requires him to not use or disclose any secret or confidential information about Quantem unless the use or disclosure is required by law, made as part of the proper performance of his duties, or agreed by Quantem, and to take all reasonable and necessary precautions to maintain secrecy and prevent disclosure of any confidential information.[23] 'Confidential information' is not defined in the contract. The clauses Mr Hutchison was found to have breached require him to maintain the confidentiality of information and documents he has access to, not use or disclose any Confidential Information for any purpose, including to obtain any benefit for himself or any other Person, and to ensure secure custody of Confidential Information in his control or possession and use his best endeavours to prevent the use or disclosure to any Person.[24] 'Confidential Information' has an extensive definition in clause 27.2.

• [74] After the application for interim orders was made, the two men attended the show cause meeting on 13 August 2024.

Training in the Code of Conduct and Electronic Access Policy

• [75] Mr Bath included in his evidence the training records for both men. The records appear to be an extract from a HR system and show that Mr Stolk has read and signed 20 policies, and Mr Hutchison 14 policies on varying topics, including the Code of Conduct, EAP and Privacy Policy. Mr Stolk gave evidence as to what the training involved. He said that Quantem sends out policies on various topics, and then the employee is expected to read them through and acknowledge they have done so. He described it as a 'tick and flick' exercise, and that that was the extent of the training provided. Mr Hutchison gave similar evidence with regard to policies, namely that it is all online and "it's here, read this digitally, sign that."

Impact on collective bargaining and freedom of association by the standing down and disciplinary process

• [76] Mr Stolk's evidence is that he is concerned if he was not involved in bargaining that Quantem's actions could exert enough pressure on UWU members at Geelong to change their position to their detriment in bargaining. He says that being stood down "has had a negative effect on the rest of the union members on site and has made communication about the progress of negotiations and next steps in our bargaining campaign between union members very difficult."[25] When cross-examined about this, it was put to him that their suspension and show cause process does not put any pressure on other employees to change their bargaining position. His evidence was:

Well, it does, because at .. they've actually seen someone that's been stood down now because because I am the Union delegate well co delegate umm and so that what that does is it sends a shockwave right for everyone else that potentially that they could be they could be victimised and harassed and bullied during this time.

• [77] His evidence is that if he is dismissed, he is concerned that no other union members at the Geelong Terminal would be willing to put their hand up to be a UWU delegate on site and not having adequate representation in negotiations would significantly hurt their bargaining position. Whilst there is another delegate at Geelong, because of the different shifts they work, it is more difficult for them to communicate with the majority of members who work a different shift pattern.

• [78] Mr Hutchison's evidence is that he is concerned that if he is not involved in bargaining, it will negatively affect the progress of negotiations and could put enough pressure on UWU members across the Regional Terminals, especially Fremantle, to change their position to their detriment in bargaining. He says that he fears that if he is dismissed during the bargaining campaign, the UWU will really struggle to hold members across each of the Regional Terminals together, and that this could lead to disorganisation or the splintering of members, which will compromise their bargaining power and position.

• [79] He is also concerned that if he is dismissed, no other union members at the Fremantle Terminal, or the other Regional Terminals would be willing to put their hand up to be a UWU delegate on site, and that if they do not have adequate representation in negotiations, their bargaining position would be significantly compromised. This is particularly the case since the only other delegate works at the Pelican Point Terminal, which is the only terminal covered by the proposed agreement that operates on a 24/7 basis. Operators at the other Regional Terminals all work non-continuous shift rosters, with a built-in overtime component to cover shipping. Mr Hutchison believes that it has been invaluable to have both Rick and him representing union members in bargaining, because together, they have been able to speak to the different operating environments across the Regional Terminals.

• [80] Bargaining has continued since Mr Stolk and Mr Hutchison were suspended in mid-July. Whilst there is a dispute about whether Quantem initially agreed to them both attending, both have attended the single bargaining meeting held during that time, via Teams.

Approach to determining application for interim orders

• [81] The Commission's power to make an interim bargaining order as sought by the UWU was not in dispute. However, the Respondent strongly opposes the making of any such order.

• [82] The parties disagree on the approach required in considering whether to make interim orders. The UWU contends that the Commission must be satisfied that there is a serious issue to be tried and that the balance of convenience favours the making of the interim orders. It relies on the Full Bench decision in Health Services Union v Victorian Hospitals' Industrial Association.[26] Quantem, relying on the Full Bench decision in Wills v Marley & Others,[27] contends that the Commission is only empowered to make an interim bargaining order if it reaches a state of satisfaction regarding the requirements of s.230 of the Fair Work Act 2009 (Cth) (the Act), particularly s.230(1)(c), s.230(2) and s.230(3).

• [83] In my view, the Full Bench decision in HSU v VHIA does not stand for the authority that the test for determining applications for interim bargaining orders is whether there is a serious issue to be tried and the balance of convenience. The decision did not examine in any detail the nature of the test involved; it was dealing with the contested issue of whether the Commissioner at first instance, had erred in being satisfied that there was a serious issue to be tried. I do not consider it to be binding on my decision in the present matter, whilst noting that other decisions of the Commission have applied that standard in considering whether to grant interim bargaining orders. The Full Bench in Wills v Marley, whilst dealing with the powers to make interim anti-bullying orders and not bargaining orders, considered the powers to make interim orders in some detail. It seems to me that the reasoning in the decision is analogous and applicable to the present matter. The Full Bench found that s.589(2) is not an independent source of power to make interim orders, but rejected a submission that such a construction of s.589(2) would result in the Commission having no effective capacity to grant interim relief (in the context of an anti-bullying matter). The Full Bench said at [48]-[49]:

[48] The Appellant submitted that if its construction of s.589(2) is not accepted, the result is that the Commission has no effective capacity to grant interim relief in respect of anti- bullying matters in order to preserve the subject matter of the application before it, with the result that the purpose of Part 6-4B may readily be defeated (for example, by dismissing an employee) before the final hearing. We do not agree. The Appellant's submission proceeds on the apparent assumption that, at an interlocutory hearing in which an applicant for an anti- bullying order seeks an interim decision pursuant to s.589(2), it would not be possible for the Commission to reach the requisite state of satisfaction concerning the matters specified in s.789FF(1)(b)(i) and (ii). That assumption is not valid. What provisions of this nature require is 'an opinion or satisfaction formed reasonably upon the material before the decision-maker'. We can see no reason why, for the purpose of an interlocutory hearing, it would be impossible for an applicant to put before the Commission sufficient material for the Commission to reach the requisite state of satisfaction under s.789FF(1)(b)(i) and (ii) at that time. ..... Once the requisite state of satisfaction has been reached, the Commission has a wide discretion under s.789FF(1) as to the making of appropriate interim orders to remain in place pending the final hearing and determination of the application.

[49] The fact that the requisite state of satisfaction may be reached, or not reached, at an interlocutory hearing on the basis of the material then before the Commission does not foreclose the result of the final hearing. Further evidence adduced at the final hearing may cause the Commission to cease to be, or come to be, satisfied (as the case may be) as to the 789FF(1)(b)(i) and (ii) matters. This will in turn open or close the door to the making of final orders.

• [84] However, ultimately, I do not need to distinguish which is the required approach, as I have reached the higher standard of being positively satisfied, as required by Wills v Marley.

Can the Commission make a bargaining order based on the evidence before it?

• [85] Section 230 of the Act sets out when the Commission may make a bargaining order. There is no dispute that the requirements of s.230(1)(a) and (b), and s.230(2) are met. However, Quantem submits that the Commission cannot make the interim orders as it cannot be satisfied:

(a) that it is reasonable in all the circumstances to make the order: s.230(1)(c); or

(b) that one or more of the relevant bargaining representatives have not met, or are not meeting, the good faith bargaining requirements: s.230(3)(a)(i).

• [86] As described by the Full Bench in Wills v Marley, the requisite standard is 'an opinion or satisfaction formed reasonably upon the material before the decision-maker'.

• [87] In relation to both Mr Hutchison and Mr Stolk, my findings set out earlier in this decision include:

(a) Both men admitted to Quantem that they had sent the document to the UWU (the Month End Report by Mr Hutchison and the Geelong Training Matrix 2023 by Mr Stolk) and never denied doing so.

(b) Neither understood nor believed at the time they sent it, that the document was confidential, or that it was a breach of any of Quantem's policies or their employment contracts. Their understandings and beliefs were reasonable in all the circumstances.

(c) Both men had a sound reason to send the documents to the UWU, to aid them in understanding and analysing the documents and obtaining advice from their union. I am not satisfied that they sent the documents for any nefarious or improper purpose or to gain any particular personal benefit to themselves or to the UWU.

(d) In both cases, it was a single, one-off incident. Both men have given evidence that if they had known that the information was confidential, they would not have forwarded the document, at least not before obtaining advice.

(f) Quantem does not appear to take a 'zero tolerance' approach to all breaches of the EAP, as in sending the Month End Report without marking the email 'confidential', Mr Speirs and Mr Rasdall, did not comply with clause 4.7.

• [88] My present assessment is that Mr Hutchison's action in sending the Month End Report was a one-off simultaneous breach of clause 9 of the Code of Conduct and the equivalent obligations under his employment contract. Mr Stolk's action in sending the Training Matrix 2023 was a one-off simultaneous breach of clause 9 of the Code of Conduct, clause 4.8.i of the EAP, and possibly the equivalent obligations under his employment contract. The breaches are different characterisations of the same, single, one-off incident.

• [89] Given the large number of policies of considerable complexity and varying definitions of confidential information and employee's obligations, the very limited 'training' provided does not provide a sound basis for Quantem's claim that it was reasonable to expect the two operators to have been aware of, and comply with, the policies.

• [90] In all the circumstances, Mr Hutchison's and Mr Stolk's action in sending the emails to the UWU does not justify termination of their employment.

• [91] Based on the evidence before the Commission, including the sworn evidence of Mr Stolk, Mr Hutchison and Mr Bath, I am satisfied that Quantem is not currently meeting the good faith bargaining requirements. I am satisfied that it is, at least now, unfair conduct by Quantem to continue their suspension from their employment.

• [92] If it was, in view of the nature of the allegations and broader circumstances, appropriate to suspend the two pending the investigation process, it is no longer so. The two bases upon which they were suspended are no longer valid. If they are back at the workplace, I consider there to be zero prospect of either delegate sending further information to the UWU or another external party in contravention of Quantem's policies or their employment contracts. As to any need to protect the integrity and confidentiality of the investigation process, that has now concluded.

• [93] I am also satisfied that the ongoing suspension of the two delegates has the effect of undermining collective bargaining and freedom of association. Whilst their suspension has not resulted in them being entirely unable to communicate with members or participate in bargaining, their capacity to do so has been significantly compromised. The evidence demonstrates that both delegates have from the outset, played very active roles in the bargaining process, including being key conduits for information between the employees and the UWU, and advocating, persuading, organising and coordinating protected industrial action. Their ongoing absence from the workplace has a direct impact on the effectiveness with which they can undertake these activities. I am also satisfied that the ongoing suspension has a 'chilling' effect on the employees both in relation to their position regarding taking protected action and maintaining their bargaining position, and also in relation to their union membership, and future preparedness to become a union delegate. Mr Hutchison in particular, has played an instrumental role in organising his own workplace, and that of the other Regional Terminals, bringing in the UWU and pressing for negotiations for a first collective agreement.

• [94] I am also satisfied that it is reasonable in all the circumstances to make the order. It will avoid any ongoing undermining of freedom of association and collective bargaining by the unfair conduct which cannot otherwise be remedied by the final orders sought. That outweighs the impact of being required to have the two delegates back at work, against Quantem's opposition.

• [95] For the above reasons, I grant the application in part and make the following orders:

1. Terminals Pty Ltd T/A Quantem Bulk Liquid Storage & Handling and its officers, servants or agents, are restrained from continuing to suspend Mr Stolk and Mr Hutchison from their employment for any reason related to the conduct that was the subject of the investigation conducted from 31 July 2024.

1. Terminals Pty Ltd T/A Quantem Bulk Liquid Storage & Handling and its officers, servants or agents, are restrained from dismissing Mr Stolk and Mr Hutchison from their employment for any reason related to the conduct that was the subject of the investigation conducted from 31 July 2024.

• [96] Further evidence may be adduced at the final hearing that causes me to cease to be satisfied as to these matters, which will determine whether final orders are made.

• [97] A case management conference will be convened to deal with the application for final relief.

N. Pefanis, Lead Industrial Officer on behalf of the United Workers' Union.

[1] Witness Statement of Gavin Bath, Exhibit GB-6 and GB-8.

[2] Witness Statement of Gavin Bath, Exhibit GB-8.

[3] Witness Statement of Gavin Bath, Exhibit GB-6.

[4] Witness Statement of Gavin Bath at [35].

[5] Witness Statement of Gavin Bath, Exhibit GB-10.

[6] Witness Statement of Gavin Bath, Exhibit GB-11.

[7] Witness Statement of Gavin Bath, Exhibit GB-10 and GB-11.

[8] Witness Statement of Scott Hutchison at [46-47].

[9] Witness Statement of Scott Hutchison at [53].

[10] Witness Statement of Scott Hutchison at [56].

[11] Witness Statement of Scott Hutchison at [57].

[12] Witness Statement of Scott Hutchison at [58].

[13] Witness Statement of Gavin Bath, Exhibit GB-21.

[15] Witness Statement of Mr Jason Stolk.

[16] Witness Statement of Mr Gavin Bath at [45].

[17] Witness Statement of Mr Gavin Bath at [44].

[18] Witness Statement of Mr Gavin Bath, Exhibit GB-18.

[19] Witness Statement of Mr Gavin Bath, Exhibit GB-19.

[20] Witness Statement of Mr Gavin Bath at [44].

[21] Witness Statement of Mr Gavin Bath, Exhibit GB-3.

[22] Witness Statement of Mr Gavin Bath, Exhibit GB-4.

[23] Witness Statement of Mr Gavin Bath, Exhibit GB-1.

[24] Witness Statement of Mr Gavin Bath, Exhibit GB-2

[25] Witness Statement of Mr Jason Stolk at [83].

[26] [2012] FWAFB 2901 ("HSU v VHIA").

[27] [2020] FWCFB 4514 ("Wills v Marley").

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