Visy Board Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union

1. The proceeding be dismissed as against the First and Second Respondents.
2. There be no order as to costs as against the First and Second Respondents. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMBERG J: 1 By this proceeding the Applicant ("Visy") sought declarations that the Respondent ("AMWU"), the Second Respondent ("Mr Bull") and 69 employee respondents ("Employee Respondents") contravened particular provisions of the Fair Work Act 2009 (Cth) ("FW Act"), orders imposing pecuniary penalties for those contraventions, and orders that those pecuniary penalties be paid to Visy together with an award of compensation and interest. 2 On 26 October 2017 the proceeding was discontinued as against one of the Employee Respondents. 3 On 9 November 2018, Visy, the AMWU and Mr Bull filed proposed consent declarations and orders by consent supported by a Statement of Agreed Facts and Admissions ("SAFA"). 4 The SAFA, which is attached as "Annexure 1" to these reasons, identifies the facts relevant to the contraventions admitted by the AMWU and Mr Bull for the purpose of this proceeding. 5 Broadly stated, the contraventions admitted by the AMWU and Mr Bull relate to their organisation of employees of Visy employed at 118 Hammond Road, Dandenong (the "Site"): (1) not to perform rostered overtime on 24 July 2017 (the "overtime ban"); and (2) not to attend for work at the Site or otherwise perform work on 31 July 2017 (the "strike"), as a result of Visy's refusal to accede to a request made by officers or agents of the AMWU for Visy to "soften" its revised Drug and Alcohol Policy. 6 By the SAFA, the organisation of the strike is admitted by the AMWU and Mr Bull to constitute a contravention of s 417 of the FW Act. 7 The organisation of the overtime ban and the strike is further admitted by the AMWU and Mr Bull to constitute a contravention of the adverse action protections in s 346 of the FW Act. The contraventions alleged by Visy engage the definition of industrial activity in s 347(b)(iv) of the FW Act. That is, the refusal by Visy to "soften" a revised Drug and Alcohol Policy is said to constitute Visy engaging in industrial activity by not complying with a lawful request made by, or requirement of, an industrial association ("Visy's industrial activity"). 8 Left to my own devices I would not find that the conduct relied upon as Visy's industrial activity is capable of constituting a breach of s 346 of the FW Act by reason of s 347(b)(iv) of the FW Act. However, as I discuss in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union ("The Bay Street Case") [2018] FCA 83 at [21]-[72], there is contrary authority in support of the interpretation of s 347(b)(iv) of the FW Act upon which Visy's allegations depend, that I do not regard as plainly wrong. 9 As a consequence, and on the basis of the facts set out in the SAFA, I am satisfied that: (1) by the conduct of its officers or agents and by the operation of ss 363(1)(b) and 363(3) of the FW Act, the AMWU contravened s 346 of the FW Act, when it organised the overtime ban because of Visy's industrial activity; (2) Mr Bull, an officer of the AMWU acting in that capacity for the purposes of s 363(1)(b) of the FW Act, contravened s 346 of the FW Act when he organised the strike because of Visy's industrial activity; (3) Mr Bull, an officer of the AMWU acting in that capacity for the purposes of s 793 of the FW Act, contravened s 417 of the FW Act when he organised the strike; and (4) by the conduct of Mr Bull described at (3) above and by operation of s 793 of the FW Act, the AMWU also contravened s 417 of the FW Act. 10 I consider that the proposed declarations are appropriate to formally record the basis upon which the proceeding has been resolved as against the AMWU and Mr Bull and I will make the declarations sought by Visy, the AMWU and Mr Bull. 11 No application was made for the Court to make orders imposing pecuniary penalties on the AMWU or Mr Bull for the declared contraventions. Nor have the parties, in the SAFA or otherwise, put before the Court material that would permit the Court to make an assessment, in accordance with the established principles recently outlined in my judgment in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union ("Cardigan St Case") [2018] FCA 957, as to whether there is a proper basis to impose a penalty. In these circumstances, I do not consider the imposition of pecuniary penalties to be appropriate. 12 The consent orders sought by the parties otherwise dismiss the proceeding against the AMWU and Mr Bull with no order as to costs. I will make those orders. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.

Associate: Dated: 20 November 2018 ANNEXURE 1 STATEMENT OF AGREED FACTS AND ADMISSIONS

A. INTRODUCTION

1. This Statement of Agreed Facts and Admissions (SAFA) is made pursuant to s. 191 of the Evidence Act 1995 (Cth) jointly by: (a) the Applicant, Visy Board Pty Ltd (Visy); (b) the first Respondent, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturing Workers' Union) (AMWU); and (c) the second Respondent, Michael Bull (Mr Bull), in support of a grant of declaratory relief that the parties jointly propose in this matter.
2. The SAFA relates to Proceedings VID842 of 2017 commenced by Visy against the AMWU, Mr Bull and 71 respondents (Employee Respondents) on 3 August 2017 (Proceedings). By the Proceedings, Visy has sought declarations that the AMWU, Mr Bull and the Employee Respondents contravened particular provisions of the Fair Work Act 2009 (Cth) (FW Act), orders that it pay pecuniary penalties to Visy and compensation.
3. This SAFA identifies the facts relevant to the contraventions admitted by the AMWU and Mr Bull for the purpose of the Proceedings. The facts agreed to, and the admissions made, are agreed to and made solely for the purpose of the Proceedings and do not constitute any admission outside of the Proceedings.
4. For the purposes of the Proceedings only: (a) the AMWU admits that it contravened ss. 346 and 417 of the FW Act; and (b) Mr Bull admits that he contravened ss. 346 and 417 of the FW Act, as set out in Section D of this SAFA.
5. The parties have reached agreement as to the terms of relief to be sought from the Court to resolve the Proceedings. The parties acknowledge that it is ultimately for the Court to determine whether the AMWU and Mr Bull contravened a civil penalty provision.
6. The parties respectfully request that the Court make orders in the form set out in the accompanying draft orders on the basis of the specific admissions in this SAFA.

B.1 Parties 7. Visy was, at all material times: (a) a body corporate able to sue and be sued; and (b) in the business of manufacturing corrugated cardboard products for sale to third party customers at a number of sites in Australia, including 118 Hammond Road, Dandenong (Site). 8. The AMWU was, at all material times: (a) an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Cth) (RO Act); (b) by reason of s. 27 of the RO Act: (i) a body corporate able to sue and be sued; (ii) a body corporate for the purposes of s. 793 of the FW Act; and (iii) a person for the purposes of Part 3-1 of the FW Act; and (c) by reason of being so registered, an industrial association for the purposes of ss. 12 and 342 of the FW Act. 9. Mr Bull was, at all material times: (a) employed by the AMWU; (b) an official of the AMWU within the meaning of s. 12 of the FW Act; (c) an officer or agent of the AMWU within the meaning of each of ss. 12, 363 and 793 of the FW Act; and (d) the AMWU representative who is generally responsible for the AMWU members at the Site.

B.2 The Enterprise Agreement 10. The Site is covered by the Visy (Smithfield, Warwick Farm, Dandenong, O'Connor) Enterprise Agreement 2016 (Enterprise Agreement). 11. The Enterprise Agreement: (a) is an enterprise agreement made pursuant to Part 2-4 of the FW Act; (b) commenced to operate on 17 March 2017; (c) has a nominal expiry date of 30 September 2019; and (d) at all material times, applied to and covered both Visy and the AMWU pursuant to ss. 52 and 53 of the FW Act respectively.

B.3 The introduction of the revised Drug and Alcohol Policy 12. On or around 13 July 2017, Visy decided to implement a revised Drug and Alcohol policy at the Site. 13. In the period from 13 July 2017 to 24 July 2017, representations were made to Visy by employees of Visy employed at the Site requesting that it "soften" the revised Drug and Alcohol policy. Visy refused to accede to those requests.

C.1 Overtime Ban 14. On or about Monday, 24 July 2017, in response to Visy's refusal to soften the revised Drug and Alcohol policy, the AMWU, through its officers or agents, directed, authorised and/or organised for Visy employees who were allocated to work overtime on the evening shift at the Site on 24 July 2017 to not work that overtime, and to not work allocated overtime until further notice. 15. Subsequent to these actions by the AMWU: (a) 28 Visy employees failed to perform their allocated overtime commencing at 12:00am on 25 July 2017; (b) 13 Visy employees failed to perform their allocated overtime commencing at 1:30pm on 25 July 2017; (c) 29 Visy employees failed to perform their allocated overtime commencing at 12:00am on 26 July 2017; and (d) 20 Visy employees failed to perform their allocated overtime commencing at 1:30pm on 26 July 2017.

C.2 The strike 16. On or before 31 July 2017, Mr Bull organised for employees of Visy employed at the Site to not attend for work at the Site or to not otherwise perform their rostered work shifts on 31 July 2017. 17. On 31 July 2017, employees of Visy employed at the Site failed to attend for work at the Site or did not otherwise perform their rostered work shifts.

D. FORMAL ADMISSIONS 18. By reason of the matters set out above, the AMWU makes the following admissions for the purpose of the Proceedings: (a) by operation of ss. 363(1)(b) and 363(3) of the FW Act, the AMWU contravened s. 346 of the FW Act as identified in paragraph 20 hereof; and (b) the AMWU contravened s. 417 of the FW Act as identified in paragraph 23 hereof. 19. By reason of the matters set out above, Mr Bull makes the following admissions for the purpose of the Proceedings: (a) Mr Bull contravened s. 346 of the FW Act as identified in paragraph 21 hereof; and (b) Mr Bull contravened s. 417 of the FW Act as identified in paragraph 22 hereof. 20. The conduct of the officers or agents of the AMWU in organising Visy employees to not perform overtime at the site on 24 July 2017 as described in paragraph 14 constituted industrial action within the meaning of s. 19 of the FW Act and was adverse action within the meaning of s. 342 of the FW Act. The industrial action was taken because Visy, by refusing to accede to requests by the officers or agents of the AMWU to amend or revoke the proposed revised drug and alcohol policy, was engaging in or proposing to engage in - or, alternatively did not engage in or proposed not to engage in - industrial activity within the meaning of s. 347(b)(iv) of the FW Act. 21. Mr Bull, an officer of the AMWU acting in that capacity for the purposes of s. 363(1)(b) of the FW Act, admits that he contravened s. 346 of that Act when, on or before 31 July 2017 he took adverse action within the meaning of s. 342 of the FW Act against Visy by organising for employees of Visy employed at the Site to not attend for work at the Site, or to not otherwise perform work that day; and did so because Visy, by refusing to accede to requests by the officers or agents of the AMWU to amend or revoke the proposed revised drug and alcohol policy, was engaging, proposing to engage or refusing to engage, in industrial activity within the meaning of s. 347(b)(iv) of the FW Act. 22. Mr Bull, an officer of the AMWU acting in that capacity for the purposes of s. 793(1) of the FW Act, contravened s. 417 of that Act when, on or before 31 July 2017, he organised for employees of Visy employed at the Site to not attend for work at the Site or to otherwise not perform work on 31 July 2017. The conduct of Mr Bull in organising for employees of Visy employed at the site to not attend for work at the site or to otherwise not perform work on 31 July 2017 constituted the organisation of industrial action within the meaning of s. 19 of the FW Act. 23. By the conduct of Mr Bull described in paragraph 14 and by operation of section 793(1) of the FW Act, the AMWU contravened section 417 of that Act when, on or before 31 July 2017, it organised employees of Visy employed at the Site to not attend for work at the Site or to otherwise not perform work on 31 July 2017. The organising for employees of Visy employed at the site to not attend for work at the site or to otherwise not perform work on 31 July 2017 constituted the organisation of industrial action within the meaning of s.19 of the FW Act.

SCHEDULE OF PARTIES VID 842 of 2017 Respondents Fourth Respondent: SADI ALIU Fifth Respondent: DITURIM AMETI Sixth Respondent: DANUT ASTILEAN Seventh Respondent: DENGIS BAFTIROVSKI Eighth Respondent: RODERICK BALDASSARINI Ninth Respondent: ALEKSANDAR BECVARDI Tenth Respondent: SIV CHANG Eleventh Respondent: JIAN CHEN Twelfth Respondent: GLYNN COOK Thirteenth Respondent: ROHAN CHRISFIELD Fourteenth Respondent: FAJRIM DALIPOVSKI Fifteenth Respondent: NATHAN DALL Sixteenth Respondent: ROBERTO DI BLASIO Seventeenth Respondent: AYHAN DOGAN Eighteenth Respondent: GAVIN DOWNES Nineteenth Respondent: CRAIG DUNMORE Twentieth Respondent: SANATH EKANAYAKE Twenty-first Respondent SIMON ELKHOURI Twenty-second Respondent TAGA ETEUATI Twenty-third Respondent SAM FATO Twenty-fourth Respondent PAUL FFELAN Twenty-fifth Respondent VICTOR FONSECA Twenty-sixth Respondent JAMES HADDOW Twenty-seventh Respondent AHMAD HAIDER Twenty-eighth Respondent SAJAT HAJREDIN Twenty-ninth Respondent WADE HEXTER Thirtieth Respondent LIN HUANG Thirty-first Respondent CARL HUTCHINGS Thirty-second Respondent BLERIM JONUZOVSKI Thirty-third Respondent KERIM KERIMOVSKI Thirty-fourth Respondent DEAN KILLORAN Thirty-fifth Respondent DANIEL KISHINEVSKI Thirty-sixth Respondent MILIVOJ KRMPOTIC Thirty-seventh Respondent IGNAC LASANC Thirty-eighth Respondent DANIELA LAZAR Thirty-ninth Respondent PAUL LEE Fortieth Respondent MATTHEW LEVY Forty-first Respondent VIOREL LOGA Forty-second Respondent ASLLAN LUMANI Forty-third Respondent WAREN LUMANOVSKI Forty-fourth Respondent DAVID MANNU Forty-fifth Respondent DUSAN MARKOVIC Forty-sixth Respondent CALEB MCELHINNEY Forty-seventh Respondent JOHN MILIONIS Forty-eighth Respondent SOE WIN MYINT Forty-ninth Respondent ALAN NGO Fiftieth Respondent MUOI NGUYEN Fifty-first Respondent GREGORY OLSEN Fifty-second Respondent FERENC PALFI Fifty-third Respondent ATTILA PALFI Fifty-fourth Respondent JAYSIN SAMNEOUM PORCHEA Fifty-fifth Respondent MARIA PORUMB Fifty-sixth Respondent VASILE PORUMB Fifty-seventh Respondent MARCUS RAGUSA Fifty-eighth Respondent GLENN READ Fifty-ninth Respondent GEORGE RIWAKA Sixtieth Respondent VIKTOR RIZMANI Sixty-first Respondent SELMAN SELMANOV Sixty-second Respondent SAGANDEEP SINGH Sixty-third Respondent FRANK SPINELLI Sixty-fourth Respondent BENJAMIN SWEET Sixty-fifth Respondent KIM TAN Sixty-sixth Respondent THACH TRAN Sixty-seventh Respondent JUSTIN VARGA Sixty-eighth Respondent GINO VILLELLA Sixty-ninth Respondent MICHAEL VOLGYI Seventieth Respondent MILAN VUKELIC Seventy-first Respondent ALAN WHITE