Australasian Meat Industry Union of Employees (Queensland Branch) [1994] ICQ 10 (1994) 146 QGIG 758

758 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [8 April, 1994 ################################################# QUEENSLAND FULL IND USTRIAL COURT lndusuiai Relations Act 1990 s. 89(4) - notice to show cause SHOW CAUSE PROCEEDINGS INSTITUTED PU RSUAN T TO SEC TI ON 89(4) OF THE ACT TO AU STRALASIAN MEAT INDUSTRY UN ION OF EMPLOYEES (QUEENSLAND BRAN CH} IN RELATION TO DISPUTE NO. Dl 28 OF 1993 (No. C40 of 1993) MACKENZIE J., PR ESIDEN T R.W. BOUGOURE, COMMISS IO N ER C.K. FISHER, COM MISSIO NER 25 March 1994 Show Cause Proceedin gs - Industri al D ispute - Strikes - Order - Su bsta nti al Compli ance - Un ion has shown cause why. 1t should not be dealt with under section 90 of the Industrial Relat i ons Act 1990. DECISION OF THE FULL INDUSTRIAL COURT The bri ef h is tory of the matter i s that on 6 May 19.93 members of the AMIEU at Cannon H ill Abattoir went on stnke foll ow ing a di spute concerni ng negotiations for a $15 per week product ivity day ri se. W h en the dispu te arose between the employer an Union representatives as to whether th ere. had been agr ee m en t for the $15 per week payment, a mass meeting of the empl oyees resolved to strike and meet agai n at 6.45 a.m. on Monday. 10 May 1993. A con ference was held in the lndu.strial Commission on Friday, 7 May 1993 and on the afternoon ot tha t day orders were. made .aga i nst the Union, various officers n~med by virtue of their pos1t1ons and the memb ers at the Abattoir for th e purpose of br inging the strike to an end . The AM I EU and the Metropolitan Regional '.°"batto i.r were eac h ordered to file an affidavi t with the Industrial Regi st rar by 4.00 p.m. on M.onday, 10 May 1993 advising a~ to whether there had been co mJ)l_1ance with the o rd er and in det au lt of compliance wh at steps, 11 any, had been tak en 10 comply with the order. The affidavits were du ly received and t he Assistant Industri al Regi strar requi red the organi sat i ons . to appear before him on 12 May 1993 so that ~e mi gh t make turther inquiries whether th er e h ad. been substan t ial c omp li an ce. On 2 June 1993 he decided to issue a notice to show cau se di rected to the AMIEU, the re levant offi cers an d the members employed at MRA who were on strike. There was an appeal aga i ns t th is deci si on and for rea sons whic h are set o.ut in (1993) 144 QGIG 313, the ori gi na l determination by the. Ass istant Industrial Regis tra r was s~ t as ide and, after further cons1d era11on, he i ssu ed a fresh or de r directed to the Union alone on the bas is th at he was not satisfied that there had been substan11a l com pli ance wi th paras. 2, 3, 4 and 5 of the order of 7 May 1993. Paragraph 2 had been directed to the members as well .as th.e U nion and the qu est i on to be determined .in these proceedings 1.s wheth er the Union has shown cause that 11 did not refuse or fa il to carry out normal duties in connectioi: with MRA. Mr Gerrard QC for the Union submitted that, so tar as the Unwn was concerned, there was no evidence to support the propos1t10.n that t he Union had refused or fa il ed to carry out any duties in connection with MRA. There was am pl e eviden ce before the Ass istant Industri al Registrar that the members had re f used . or failed to do so but there is no ev idence before us that the Union has done so. We therefore pass on to pa ra s. 3, 4. and 5. Paragraph 3, for relevant purposes, prohibited the Union .from aiding in its . members continuing the st nke or authonsi_ng, encourag in g, 1nst1gatmg, advi sing or directing them to strike. 8 April, I 994) QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 759 Paragraph 4 prohibit ed the Un io n from directly or indirectly be ing a party to or concerned in the con ti nu at ion of the stri k e. Paragraph 5 required th e Uni on to forthwith take all reasona ble steps to ensure i ts members complied with the order and to procure members to forthwi th cease the strike. It will be noted that pa ra s. 3 and 4 are concerned with prohi bit i ons on the U nion. Paragraph 5 im poses a positive obliga tion upon the Union. We will deal with par as. 3 and 4 together. The matters tha t concerned the Ass i stant Industrial Reg i strar in making h is original dete rm i na tion m ay be summari sed as foll ows:- (a) the Committee of Man age ment of th e Union did not appear to pl ay an active role in endeavouring to sec ure compliance with the Commissi on's o rd ers. It did no t meet, although the widespread geog raphical location of the Committee's members was no ted. Fu rther there was no evidence of dialogue or communication be tween Commi ttee members concern ing the givi ng of d irections to members on st rike. (b) there was no evidence that the pr es ident or sec retary were invol ved in securing compliance wilh t he o rd er. (c) there was no altempt to re-schedule at an earlier time the meeting se t by the employee s for 6.45 a.m. on Monday. (d) there was no attempt to alert empl oyees about the order unt il th e meeti ng. (e) wh il e t he sh ed official s recommended a re turn to work - (i) they did not return to work themselves; and (ii) there was no sec ret ballot of empl oyees. (f) the Un io n's officers had not fully appri sed themsel ves of the consequen ces of fa i lu re to comply with t he Commi ss ion's orders and therefore were not in a positi on to explain them to the members (although it was noted th at it was conveyed to the employees that they cou ld be lined) The Assi stant Industrial Reg istrar summed up his vi ew of the ma tte r by say in g tha t despite the timing of the order (i.e. late on a Friday) and the res ultant short no tice, he wou ld have expected a more concerted effort to al ert the members in view of the serious na ture of the situation. These were all ma tters of legitimate concern. They are t he kinds of is su es 1hat requ ir e an adequate answer. We have h ad the benefit of detailed evidence on affidavi t from the current Assista nt Branch Sec retary and the persons who were, at t he relevant time, Acting President, Secre tary, Southern District Secre tarv, an Industri al O ffi ce r, an Organ is er within whose res pon si biliiy th e abattoir was, and the Works President and t he Works Secretary of the Shops Committee. All of these wi tne sses denied on affid av it that they h ad fa iled to comply with the Com mi ss ion's orders. The account gi ven by tho se who attended the meeling on 10 May 1993 1s to the effect th at although the South ern District Secre tary rea d the Commi ss ion's o rd er to t he assemb l ed employees and ad vi sed them th at they must comply with the order several pe rsons in the group became abusive towards h im and the U nion gene rall y. He repeated on several occasions th at the order must be complie9 with, as di d the Organi ser and the Acting Works Pres ident 01 the Sh ops Committee. The affidavi ts swear to the presence of an ext re mely vocal elemen t wit hin the memb ersh ip who di sagreed wi th th e recommendati ons and eventually the meeting was closed an d the employees left. Individual members advis ed th e Union re pr ese ntat i ves that there would be another mass . meeting at 6.45 a.m . the foll ow ing morning. At that meeting, despit e an element of dissension, t he employees were pe rsu ad ed that they should commence wo rk the fol low ing day T~e organiser, spec ifi ca lly addressing the qu est ion of th e holding ot a secret ball o1, expressed the view that a sec ret ballot would have been ineffec ti ve in cha nging t he outcome of either meeting on 10 or 11 May 1993. He sa id t hat he was unc erta in whether the members would have stayed for a secret ba ll ot if one was held and that t he Union di d not have a policy of holding secret b al l ots . The State Sec retary's affidavit is to like effec t and adds th at he considered calling a division in which all members who were in favo ur of a retu rn to work wou ld move to one side and all mem b ers opposed would move to the other sid e. He swe ars that he was advised strongly by the She d Official s who were present aga i nst hol ding a division as numerous individual memb ers were extremely aggress ive and unruly towards him se lf and the Union in genera l. He says t hat for the phys ical sa fety of th e membe rs he 147321-65 decided 1ha t a division should not be held. In ad dition he sai d that he did not want to put the matter of whether to comply with the Commi ss i on's order to a vote. He thought that once the members had displayed "the ir show of st ren gt h" they would return to work the following day. It is in that fac tu al con text that paras. 3 and 4 must be conside red. Th e evidence before us was pl ainly much more detail ed than t hat before the Assi st an1 Industri al Regi strar. We menti on. tha t neither the Crown nor the MRA appeared in th ese proceedings. Therefore th e Court mus t m ake its own unass isted assessment whether the Union aided the members in continuing the st rike or auth ori sed, encouraged, i ns tigated, advised or directed them to continue the strike. On th e evidence we are sat i sfied th at in all the circumst ances the Uni on has shown ca u se in respec t of pa ra. 3. Paragraph 4 ra i ses the i ssue whether the Union, directly or in di rectly, was a party to or concerned in the continuation of th e strike. There i s no evidence to contradict the affidavit evidence pl ace d befo re us by th e Un ion. Simil arly we are of opinion that cause has been shown in respect of th is groun d. Pa ragraph 5 raises different consideration s. The ques ti on is whether the Union forthwith took all reasona bl e steps to ensure that i ts members complied with the order and to procu re the memb ers to forthwith cease the strik e. The affidavit of th e Ass istant Bra nch Secretary deals in some detail wi th the management structure of t he Union. The Committee of Management consi sts of 26 people from a va riety of locations across the State . The Branch Executi ve consi sts of eight members, one of whom r esides in Rockhampton and another in Townsville. He expressed the opinion th at it wou ld ha ve been impossible for the Committee of Management to meet because oi the location of the mem be rs and that i t wou ld have been impossible lo call a Branch Exec utive meeting over the week-end. At b es t, the ea rliest poss ibl e time that it coul d have met wou ld have been on the morning of Monday, 10 May 1993 . He al so swea rs tha1 th e Sec retary has authority to act on behalf of the Branch Executive in betw een Branch Executive meetings. The Secreta ry at the time authorised the Southern D ist rict Secre tary to direct the members to comply wit h the te rms of the Commission's order. As we have sa id previously suc h a recommendation was made. He states that the rules of the Union are silent as to which level of committee is authorised to direct members to return to work. However from his ow n knowledge and experience t he custom and practice is that only Branch Sec retar i es and Ass i stant Branch Secreta ri es are author ise d to direct members to retu rn to work. He further deposes to t he r ari ty of a refusal of th e members to foll ow a direction or recommendati on to return to wo rk. He al so deposes that when he fi rst beca me awa re of the strike he was advi sed by the organi ser th at t he mem be rs had already decided not to return to work until Monday, 10 May 1993. He exp resse s the opin ion that beca use t hat decision had b een alrea dy made there was no point in i ssu ing TV adverti sem en ts, rad io bulleti ns or placing advertisements in th e newspapers over the week-end. The wo rd "forthwith" means " as soon as reasonably poss ible in the circumst ances" or "as soon as conveniently may be" or "as soon as practi cab l e" . We are sat isfi ed th at the Union did take steps to ensu re that its membe rs compl i ed with the o rd er an d to procure them to cease the str ike by address ing them in the circumstances deposed to, at the meeting on 10 May 1993. The re maining questions are whe th er they took th os e steps forth wi th and whether al l re asonable steps were taken . The Court would ta ke the opportunity to po int out that advances in te l ecommunicati ons pe rmi t inform at ion to be trans ferred in stan taneously and meetin gs to be he ld by telephone. Th e weight to be given to t he members of decision-m ak ing bodi es residing in di stant popu la tion centres carries m uch l ess we ight nowadays than it m ay have in t he pas t. It will not n ecessa ri ly be an an sw er to an all ega tion th at meetings should have been h el d to rely on the fact that the membe rs are spread in di sta nt locations. The steps actually taken to ensure compliance with the order and to procure the employees to fo rthwi th cease to str ike were to have o fficials of the Uni on who were authorised to do so to attend th e meeting which the empl oyees had schedul ed and recommend th at the men return to wo rk. Th at was done at the first opportunity when th e employees we re gathered in a grou p. The f ac t the order was made late on Friday and th at a week-end therefore intervened between .the m ak ing of the order and th e previously arranged m ee ting 1s another factor to be taken into account. We have ta ken i nto account the expl anati ons gi ven as to the difficul ti es an d re l ati ve fut ili ty of advising th e m em bers by advertisements in the media that they were requ.ired to return to work. In many cases, the gravity of the s11 uat 1on may be such that it would be in sufficient compl i ance if nothing was done to issue directions to re turn to work or attempt to schedu le mee tings ea rl ier. Whet he r -- 1 of 2 -- 760 QUEENSLAND GOVE RNMENT [NDUSTRIAL GAZETTE the fa il ure to ta ke such ste ps is u nreas on able wil l depend on the ci rcumstances of each case. W hat is invo lv ed in a matter oi thi s k ind is , in th e en d, an expressi on of a judgmenI as to wha1 was reasonable in al l the circumstances of the case . Wh ile we fee l that there may have been a se n se of complacency and therefo re a l ac k oi urgency ab o ut the ma ller on the part oi th e Union w h en w e ta ke a ll of Ihe ci rcumstances disclosed in the affidavits now before us i nto account, we have come to the co ncl usion that the Un io n has shown cause i n resp ect of para. 5. The re su lt is that we find that the Union h as shown cause why it sh ould not be d ea lt wit h under s. 90 of 1he Industr i al Rel.;icions Ac! 1990. Dated this twenty-fii th day oi March, 1994. K.G .W . MAC KENZIE, Pre sident. R. W . BO UG OU RE, Comm iss ioner. G.K. FISHER, Co mmi ss ioner. A pp earances :- Mr J.A. Jerrard QC, (instructed by Mr l. Me iklejohn) ior Australasian Me at Industry Union of Employees (Queensl an d Branch). O perative Dale: NIA O rder - Show Cause - AM IEU Relea sed : 25 M arch 1994 # # ############ # # # ## # ################### ## ####### # ### l8 April, 1994 8 April, 1994] QUEENS LAND GOVERNMENT INDUSTR IAL GAZETTE 761 -- 2 of 2 --