Finecraft Furniture Pty Ltd v Employees of Finecraft Furniture Pty Ltd [2004] QIRC 76 (2004) 175 QGIG 1387

30 April, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1387 ######################################################################################################################### ## QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 156 – application for certification Finecraft Furniture Pty Ltd AND Employees of Finecraft Furniture Pty Ltd (No. CA84 of 2004) FINECRAFT FURNITURE PTY LTD CERTIFIED AGREEMENT 2004 COMMISSIONER EDWARDS 16 April 2004 Certified Agreement – Employer and Employees – Union Opposition – Evidence – Coercion – Application Adjourned. DECISION On 2 March 2004 an application was filed for the certification of the Finecraft Furniture Pty Ltd Certified Agreement 2004. The matter was listed for hearing on 18 March 2004 and all interested persons were advised. By correspondence dated 18 March 2004 The Construction, Forestry, Mining & Energy, Industrial Union of Employees (CFMEU/Union) advised that the Union intended to oppose certification on the grounds that the employer had breached provisions of the Industrial Relations Act 1999. The Commission was advised that the Union became aware that negotiations had taken place as a result of the notification from the Industrial Registrar. As a result a number of employees requested assistance and advice in regard to the conduct of negotiations. At the hearing on 18 March 2004 Mr Price requested an adjournment so that the concerns of the employees could be addressed. The application for adjournment was opposed by Mr Franken. Section 155(1) of the Industrial Relations Act 1999 states: “All relevant employee organisations are entitled to be heard on an application for the certification of an agreement.”. Accordingly, the Commission granted the adjournment to enable those persons who had raised concerns to be given the opportunity to be heard. On 19 March Mr Price, Assistant State Secretary advised the Commission as follows: “Following on from yesterday’s hearing regarding the certification of the Finecraft Furniture industrial agreement, I wish to report that two officers of this union visited the workplace at approximately 12.00pm today to report to the workers the results of yesterday’s hearing. Under my instructions, the officers took with them a copy of the transcript from yesterday’s hearing to specifically address any concerns that may have arisen as a result of the names of certain workers being provided to the employer by the Commission. When the officers arrived, they were confronted by a number of workers who claimed that this morning Mr Simon Dean had told them that he had been provided with the names of those who had signed the documents that were presented to the commission yesterday and showed them a list of names. As a result of this action, one worker who claimed to be a union member stated that he would be resigning forthwith and refused to listen to any explanation from the officials. Whilst some other workers did allow the officials to address them about this issue, I am advised by the officials that it is clear that as a result of management’s actions the workers have now been sufficiently intimidated to the point where it will be impossible for the union to be able to proceed with the witness evidence the Commission requires. -- 1 of 3 -- 1388 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 30 April, 2004 I believe that this situation is now irreversible and that this is a direct result of Mr Dean’s actions which are in clear conflict with commitments I sought before you yesterday. It is my understanding from reading the transcript that your comments on the record indicate your support for my request that the anonymity of these workers be preserved and that no action be taken by Mr Dean. This clearly hasn’t happened. Whilst the CFMEU remains committed to negotiating on behalf of the workers at Finecraft Furniture, I am deeply concerned that the relationship between the union and both our members and the other workers at this workplace has been poisoned by these reckless and wilful actions. Therefore, I seek the assistance of the commission to redress this situation so that the relationship between the union and these workers does not continue to be prejudiced by this contemptable action.”. During discussions with Mr Price on other industrial matters the Commission was advised that the Union had concerns but would not be seeking a hearing prior to that scheduled for 5 April 2004. In accordance with custom and practice the Commission indicates that at the commencement of the hearing on 5 April 2004 the Commission would have recorded the fact that there was a communication from Mr Price to the Commission regarding this matter. By letter of 30 March 2004 Mr Franken advised as follows: “We refer to the abovementioned Application for Certification on 18 March 2004 which has been adjourned due to an objection raised by the CFMEU at the hearing. As you are aware the matter has become contentious. In a discussion with Mr Jason Stein from the CFMEU this morning (at approximately 10.30am), I was advised that Mr Chris Price from the CFMEU had entered into discussions with Commissioner Edwards on this matter. As we neither participated in this conversation nor are aware of the substance of the discussion, our client is concerned about any potential prejudice to our client in this matter given that it is before the Commission again on Monday 5 April 2004. We advise that a copy of this letter has been forwarded to the CFMEU.”. At the hearing on 5 April 2004 the Commission gave Mr Franken the opportunity to be heard. Mr Franken advised: “I don’t want to process that any further. It’s just a matter that that’s on record at the moment, that we’re aware of that, and that we sought to have – because the way that it came across in my discussion with Mr Stein and I wasn’t aware that it was him sitting here otherwise I would have maybe had a word with him about that, was that there was almost like a briefing that had taken place, and which I conveyed to my client and he was then very concerned about that. ...”. In view of the submissions of Mr Franken the Commission continued with the proceedings. Section 156 (1)(b) of the Industrial Relations Act 1999 states: “The commission must certify the agreement if, and must not certify the agreement unless, it is satisfied – (b) the employer did not coerce, or attempt to coerce, an employee – (i) not to make a request mentioned in section 144(2)(c) or (ii) to withdraw the request; and”. Section 144(2)(c) states: “When a certified agreement is proposed to be made with an employee organisation or employees, the employer must take reasonable steps to ensure – (c) for an agreement with employees – each relevant employee is informed that he or she may ask a relevant employee organisation to represent the employee in negotiating with the employer about the agreement.”. In his affidavit (Exhibit 7) Mr Urbanowicz stated: “During September 2003, we were advised by our employer that he proposed to make an Agreement with us to replace the 2000 Agreement. As a result of my involvement in the previous EBA, I again was voted in and was the chairperson of the Consultative Committee during the negotiations for a new Enterprise Bargaining Agreement. I recall that during the first meeting that I had with my co-workers, to discuss and finalise the employee proposals to be forwarded to management, I requested them to indicate to me whether they would like to have any Union involvement in this process or not. All the employees were unanimous that they did not want Union involved. I recall that the letter that was handed to me was passed around during the course of the meeting and I am confident that everybody would have been aware of that right. Certainly, the employees who have subsequently filed Affidavits with the Commission indicating that they had not been told were part of that meeting. I recall that specifically as all five of them are factory workers as such and I recall that all factory workers on that day attended the meeting. No[t] one employee had ever approached me with a request to involve a Union representative in the negotiations.”. In his affidavit of 31 March 2004 (Exhibit 6) Mr S.L. Deen states: -- 2 of 3 -- 30 April, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1389 “On 16 January 2004, I had a discussion with Mr Ben Urbanowicz and informed him that all employees should be made aware that they were entitled to Union representation should they so wish. On the same day I handed him a letter addressed to all employees which he took away with him for discussion with employees. I attach a copy of that letter marked Annexure “A”. At no stage did I coerce or attempt to coerce any employee not to make a request to be represented by an employee organisation and at no stage did I have either any request from any employee or employee organisation at this stage to be involved in the process. Ben Urbanowicz and I were present during the certification proceedings of the Commission on the 18th of March 2004. Ben had been absent from work due to an infected finger and was absent during the period that the union started visiting the plant. He only returned on the day of the certification and at the Commission confirmed to me that the employees had been advised of their right to involve the union on 2 previous occasions. On the 19 th of March 2004 I called a general meeting with all employees and informed them that the agreement had not been certified on 18 March 2004 and explained to them the reasons for it. I handed out a few copies of the letter from the Union to the Commission for greater clarity. I advised them that I was disappointed that they had not contacted their EBA representative and discussed with him any issues raised by the CFMEU. I informed them that to my knowledge the statements by some employees (attached to the union letter) contained incorrect information. I believe that I was entitled to explain to my employees why their agreement was not certified and the comments that I made to the workers are contained in paragraphs 20 to 22 of this statement.”. By their affidavits Mr Deen and Mr Urbanowicz have admitted that they have requested the employees to advise them of their decision in relation to Union representation. The Industrial Relations Act 1999 (the Act) does not authorise the employer to enquire of employees as to whether they wish to be represented or otherwise. In terms of s. 144(2)(c) each relevant employee is to be informed by the employer that they may ask a relevant employee organisation to represent them. The Act does not enable Mr Deen to request fellow employees to “indicate to me whether they would like to have union involvement in the process or not”. By letter of 19 March 2004 (Exhibit 2) 10 employees informed the Commission that they had been advised that the agreement had not been (approved) certified due to a Union letter. The hearing on 5 April 2004 was not adjourned because of the Union letter but because of the reasons conveyed to the Commission by the documents dated 16 March 2004. These documents were signed by employees in the presence of a Commissioner for Declarations. It was not necessary for the Commission to adjourn the hearing to enable the representative of the Union to be heard. The letter of 19 March 2004 does not outline who conveyed the “so-called” reason to the employees. The reason conveyed was incorrect. In Words and Phrases legally defined 3 rd ed (Supplement 2003) coercion is, “. . . carries with it the connotation of force or compulsion or threats of force or compulsion negating choice or freedom to act: see Hodges v. Webb [1920] 2 Ch 70 at 85-7 per Peterson J.”. The Commission refers to the decision Finance Sector Union of Australia v. Commonwealth Bank of Australia [2000] FCA 1468 where Gyles J. at [18] concluded that for the purposes of s. 170NC(1) of the Workplace Relations Act 1996 (Cth) “coercion requires conduct that is: • compulsive in the sense that the pressure brought to bear, in a practical sense, negates choice; and is • unlawful, illegitimate or unconscionable.”. In relation to the first dot point Mr Urbanowicz indicated by his Affidavit (Exhibit 7) that he was at the finalisation stage of the preparation of the employee proposals and he gave the employees the opportunity to have the involvement of an industrial organisation or not. It was not appropriate for such a question to be asked and furthermore by raising the matter in the finalisation stages pressure was being placed on the employees to make a decision without an adequate opportunity for them to consider or to seek advice. In relation to the second dot point the Act does not provide for the employer to be informed as to whether a person is a member of a registered industrial organisation or otherwise. The Commission is not satisfied that the employer complied with s. 156(1)(b) of the Industrial Relations Act 1999. As a result under s. 158(1)(b) the Commission gives the persons who made the agreement an opportunity to take action that may be necessary to enable the Commission to certify the Agreement. The application will be adjourned to 12 noon on Friday 30 April 2004. The Commission orders accordingly. K.L. EDWARDS, Commissioner. Hearing Details: 2004 18 March and 5 April Released: 16 April 2004 Appearances: Mr J. Franken of Livingstones Australia and with him Mr S. Deen on behalf of the applicant. Mr B. Urbanowicz on behalf of the employees. Mr C. Price and Mr J. Stein on behalf of The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland and with them Mr P. Close and Mr A. Ramsay. -- 3 of 3 --