Construction, Forestry, Mining and Energy Union v Coffs Harbour Hardwoods (Sales) Pty Ltd [2005] FCA 465

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v

Coffs Harbour Hardwoods (Sales) Pty Ltd [2005] FCA 465

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v

COFFS HARBOUR HARDWOODS (SALES) PTY LTD N900 of 2004 WHITLAM J 22 APRIL 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N900 OF 2004

BETWEEN: CONSTRUCTION, FORESTRY, MINING AND

ENERGY UNION

APPLICANT

AND: COFFS HARBOUR HARDWOODS (SALES) PTY LTD

RESPONDENT

JUDGE: WHITLAM J

DATE OF ORDER: 22 APRIL 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The proceeding be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N900 OF 2004

BETWEEN: CONSTRUCTION, FORESTRY, MINING AND

ENERGY UNION

APPLICANT

AND: COFFS HARBOUR HARDWOODS (SALES) PTY LTD

RESPONDENT

JUDGE: WHITLAM J

DATE: 22 APRIL 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This case concerns the dismissal from their employment of Robert Brand, Adam Philp and Ronald Seckold. Each of these men was employed in a business at Glenreagh known as Coffs Harbour Hardwoods carried on by the respondent, Coffs Harbour Hardwoods (Sales) Pty Ltd, and another company, Coffs Harbour Hardwoods (Trading) Pty Ltd. The evidence does not disclose how these two companies organized this business between themselves. Both companies are bound by the Timber and Allied Industries Award 1999 ('the Award') made under the Workplace Relations Act 1996 ('the Act'). However, by their pleadings on the statement of claim, the parties may be taken to accept for the purpose of this proceeding that the business at Glenreagh was that of the respondent and that the respondent was the employer of Mr Brand, Mr Philp and Mr Seckold. The applicant Construction, Forestry, Mining and Energy Union ('the union') alleges that, in dismissing these employees, the respondent contravened s 298K(1) of the Act. 2 Glenreagh is a town located approximately half-way along the railway line between Coffs Harbour and Grafton. The respondent operates a sawmill there. For the past 15 years it has also treated hardwood poles and girders. In 1998 the respondent developed its operations into drying and dressing. This lastmentioned process is undertaken in a discrete section of the Glenreagh site referred to as the board plant where floorboards are produced. This case is concerned with employment in the board plant. 3 The respondent is a family firm founded by the late father of its present directors. The business is run by one of the founder's sons, Garry McCarthy, who is the general manager. He has been supported since May 2002 by Rob Young, an employee with a professional engineering background, who deals with 'administrative and management challenges'. 4 Arturo Noel Menon is the North Coast organiser of the NSW Branch of the union's Forestry and Furnishing Products Division. He visited the Glenreagh site for the first time on 4 November 2002 in order to discuss with Garry McCarthy payment by the respondent of superannuation contributions to a fund other than the Timber Industry Superannuation Scheme ('TISS'). Mr Menon also asked Garry McCarthy a number of questions about other industrial matters. On 25 and 26 November 2002 Mr Menon returned to the site with another union organiser, Karin Edwards, and they spoke to employees of the respondent about the provisions of the Award governing superannuation contributions by employers. Following that visit, Mr Menon arranged for the union to initiate a bargaining period for a certified agreement under the Act in respect of the respondent's employees. That was done on 28 November 2002. The next day, 29 November 2002, Mr Menon met several employees of the respondent at a hotel in Glenreagh and discussed how the union could advance their interests. Five employees joined the union. 5 On 2, 12 and 16 December 2002 Mr Menon visited the respondent's Glenreagh site and discussed with Garry McCarthy the deduction of union contributions from wages. On 16 December 2002 he also distributed additional information on TISS. 6 Craig Smith, the union's divisional branch secretary, wrote to Garry McCarthy on 16 December 2002 informing him that on 18 December 2002 Mr Menon intended to exercise his statutory right to inspect the respondent's time and pay sheets in order to investigate suspected breaches of the Award. Mr Smith also notified the Australian Industrial Relations Commission ('the Commission') on 16 December 2002 of an industrial dispute between the union and the respondent in respect of superannuation contributions, payment of overtime, public holidays and lack of consultation about occupational health and safety. Mr Menon did inspect the respondent's records on 18 December 2002. He formed the view that the respondent was not observing the Award provisions governing penalty rates for overtime, loadings for casual employment and annual leave, and payment of wage rates at appropriate skill levels. 7 The industrial dispute was the subject of a conciliation proceeding before a member of the Commission on 20 December 2002. On 15 January 2003 the union distributed a bulletin to its members employed by the respondent. Its tone was very positive and quite triumphant. The bulletin lauded the efforts of 'your new Delegate, Peter Smithers' and said that the respondent confessed to various underpayments and breaches of the Award. The union reported that it walked away from the hearing with commitments from the respondent to pay superannuation contributions to TISS. The bulletin concluded by informing members that Mr Menon and Ms Edwards would be visiting their workplace on 21 and 22 January 2003 to hold further discussions with the respondent's management and to conduct preliminary negotiations for an enterprise agreement. Subsequently the union received complaints from members alleging discrimination and harassment by the respondent. Mr Menon did visit Glenreagh on 21 and 22 January 2003 and provided the respondent with draft enterprise agreements. More significantly, on 23 January 2003 Garry McCarthy signed an agreement on behalf of the respondent reflecting 'its commitments arising out of the dispute hearing… on 20 December 2002'. These undertakings were broadly in line with those described in the union's bulletin of 15 January 2003. However, one 'point of concern' was new. The agreement stated on this topic: '4. The company acknowledges each employee's Freedom of Choice to be or not to be a member of an industrial organisation of employees. The company will not provoke or tolerate any type of discriminatory or harassing behaviour from any employee of the company, on or off the premises, towards another with respect to this choice.'