Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Toyota Motor Corporation Australia Ltd [2010] FCA 1389 (10 December 2010)

Last Updated: 14 December 2010

FEDERAL COURT OF AUSTRALIA

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Toyota Motor Corporation Australia Ltd [2010] FCA 1389

Citation:		Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Toyota Motor Corporation Australia Ltd [2010] FCA 1389
Parties:		AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION v TOYOTA MOTOR CORPORATION AUSTRALIA LTD
File number:		VID 1050 of 2010
Judge:		MARSHALL J
Date of Judgment:		10 December 2010
Legislation:		Fair Work Act 2009 (Cth) s50 Fair Work (Registered Organisations) Act 2009 (Cth)
Date of Hearing:	3 December 2010
Date of Order:	3 December 2010
Date of Publication of Reasons:	10 December 2010
Place:	Hobart (Heard in Melbourne)
Division:	FAIR WORK DIVISION
Category:	No catchwords
Number of paragraphs:	23
Counsel for the Applicant:	Mr M Harding
Solicitor for the Applicant:	Slater & Gordon
Counsel for the Respondent:	Mr J Forbes
Solicitor for the Respondent:	Freehills

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION	VID 1050 of 2010

BETWEEN:	AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION Applicant
AND:	TOYOTA MOTOR CORPORATION AUSTRALIA LTD Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	3 DECEMBER 2010
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application for interlocutory relief is dismissed.
2. The directions hearing is adjourned to 9.30 am on 20 December 2010.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION	VID 1050 of 2010

BETWEEN:	AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION Applicant
AND:	TOYOTA MOTOR CORPORATION AUSTRALIA LTD Respondent

JUDGE:	MARSHALL J
DATE:	10 DECEMBER 2010
PLACE:	HOBART (HEARD IN MELBOURNE)

REASONS FOR JUDGMENT

1. On 3 December 2010, the Court declined to grant the applicant the interlocutory relief it sought in an urgent hearing on less than two hours notice to the respondent. What follows are the Court’s reasons for refusing to grant interlocutory relief to the applicant.

Factual Background

2. The applicant, Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“the Union”) is an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Cth). The respondent Toyota Motor Corporation Australia Ltd (“Toyota”) is an employer of labour which is engaged in the automotive industry. Toyota has, amongst its employees, persons who are members of the Union; including persons employed at its plant in Altona in the western suburbs of Melbourne.
3. The Union and Toyota are parties to the Toyota Motor Corporation Australia (TMCA) Workplace Agreement (Altona) 2010 (“the Workplace Agreement”). Fair Work Australia (“FWA”) approved the Workplace Agreement which came into effect from 2 August 2010.
4. Until about 1992, cleaners employed at Toyota’s Altona plant were directly employed by Toyota. At about that time, Toyota outsourced its cleaning labour via cleaning contractors. Until recently, Toyota engaged Veolia Environmental Services (“Veolia”) to provide labour to perform cleaning work. Until 3 and 4 December 2010, there were nine such Veolia employees engaged to clean at the Altona site. Five employees were employed on the day shift which concluded at 3.30 pm and four employees on the afternoon site which concluded at 2.00 am.
5. Employees of Veolia working at the Altona site were entitled to the benefit of the Veolia Environmental Services Toyota On-Site Agreement 2006 (“the Veolia Agreement”). The Veolia Agreement provided wage rates for cleaning employees which were comparable with wages provided for non-trades employees in the Workplace Agreement.
6. In about mid-October 2010, the Union became aware that Toyota had put out a tender for its cleaning work at the Altona site. Information was provided to a Union organiser by members of the Union employed by Veolia that another company had tendered for the work on the basis that lower rates of pay were being offered than those provided by the Veolia Agreement.
7. The organiser, Mr Thomas, from mid October 2010, raised concerns with Toyota management about the prospect that a tender would be accepted which included lower rates of pay than the rates currently offered under the Veolia Agreement.
8. At some time in November 2010, the precise date being unknown but most likely after 11 November and before 26 November 2010, Toyota accepted the tender of Transpacific Cleanway (“Transpacific”). On 26 November 2010, members of the Union employed by Veolia told Mr Thomas that they had been made redundant.
9. On 1 December 2010, Mr Thomas requested a delegate of the Union to submit a written grievance to Toyota. The grievance complained that Toyota’s engagement of “new contractors” (meaning Transpacific) breached the “Temporary or Contract Labour” clause of the Workplace Agreement.
10. Although the title of the clause and its number is mis-described in the grievance, the parties agree that the grievance intended to complain of an alleged breach by Toyota of the provisions of cl 23.4 of the Workplace Agreement.
11. Clause 23.4 provides as follows:

Contract Labour

The terms and conditions under which Contractors are engaged by [Toyota] will be no less favourable than that which exists within this Agreement.

[Toyota] can utilise Contract Labour, in an effort to increase labour flexibility and productivity, provided that the use of Contractors does not disadvantage Permanent Employees’ terms and conditions of employment.

12. It is immediately apparent that the grievance was entirely misdirected. Clause 23.4 was not intended to operate in a situation where the activity (in this case, cleaning) had been provided for by contractors for a considerable time. The sub-clause is designed to protect the position of existing Toyota employees, such that Toyota is forbidden from contracting out aspects of its work which are currently performed by its employees, unless those employees are employed by a contractor on no less favourable terms than exist under their employment with Toyota.
13. On 30 November 2010, the Human Resources Manager of Veolia, Ms Walters, informed Mr Thomas that Veolia’s cleaning employees would cease work at 2.00 am on 4 December 2010 at the Altona site. Mr Thomas then telephoned Ms Saunders from Toyota’s Human Resources department and told her that as the Union and Toyota were in dispute the “pre-dispute status quo would apply”. Mr Thomas took the same approach in a discussion with other Toyota representatives in a meeting on 2 December 2010.
14. The reference to the “pre-dispute status quo” was taken from cl 19.3 of the Workplace Agreement. Clause 19.3 provides:

19.3 Dispute Avoidance Procedure

In addition to the above Problem Resolution Procedure, there may be instances where The Parties initiate actions or proposals which The Parties believe will cause adverse effects on the performance of normal work of Employees, or potentially cause breach of This Agreement. In these cases the following procedures will be followed:

• [Toyota] management or the Union will notify the relevant Union Divisional Secretary or nominated representative of [Toyota] of the concern about the proposed activity.
• In the event an agreement is not reached about the matter in dispute, the Dispute may be referred to FWA in accordance with provisions of The Act. The Parties recognise that referral to FWA provides the Tribunal with both the power to conciliate and arbitrate outcomes. Acceptance of this process will not act to prejudice the rights of either party to appeal either to FWA or jurisdiction.
  

Whilst the Dispute is being dealt with through this Disputes Avoidance Procedure, continuity of production and pre dispute status quo will be maintained (unless basic safety would be compromised), by all Parties.

15. Mr Thomas considered that the engagement of Transpacific by Toyota was an action which potentially caused a breach of cl 23.4 of the Workplace Agreement.
16. As there was no agreement about the dispute, Mr Thomas considered that the existing contractual arrangements should be maintained as the pre-dispute status quo. Toyota considered that as a new contractor had been engaged the status quo was the engagement of Transpacific. Neither the Union nor Toyota referred the “dispute” to FWA.

Relief sought

17. The Union sought an order restraining Toyota, until the hearing and determination of the proceeding, from:

...acting upon or giving effect or further effect to the purported termination of the contract to provide cleaning services between it and [Veolia]; and continu(ing) to treat the ....contract as on foot and binding upon the parties and giving effect to its terms.

18. The only claim made by the Union in the substantive application alleges a proposal by Toyota to contravene cl 19.2 or cl 19.3 of the Workplace Agreement. In argument on the application for interlocutory relief counsel for the Union disavowed any reliance on cl.19.2. Read fairly, the application alleges a breach of cl 19.3 of the Workplace Agreement in contravention of s 50 of the Fair Work Act 2009 (Cth).

Consideration

19. For the reasons identified at [12] above, cl 24.3, the clause sought to be invoked by the grievance procedure in cl 19.3, was not relevant to the circumstances of Veolia’s loss of its contract and Transpacific’s gain of its contract.
20. It follows that cl 19.3 was not a proper vehicle to ventilate a supposed dispute under the Workplace Agreement when the provision sought to be enforced was not engaged. Had FWA considered the grievance it would have formed the view that cl 24.3 does not apply to the further outsourcing of work which has already been outsourced. Further, it is a moot point as to what “the status quo” is for the purposes of cl 19.3 when the Union, having raised the grievance, did not refer it to FWA.
21. The substantive application, in my view, is wholly misconceived. There is no serious issue to be tried in the application. As there is no serious issue to be tried it is inappropriate to grant the interlocutory relief claimed.
22. Even if I had been of the view that there was a serious issue to be tried, I would have nonetheless declined to grant interlocutory relief as the balance of convenience did not favour its grant. By the time argument on the interlocutory application had concluded five of the nine employees of Veolia had been terminated. Four employees were to be terminated at 2.00 am the next morning. The Union complained about a pre-dispute status quo not applying pending referral of the dispute to FWA, yet at no time referred the dispute to FWA. The later point is a discretionary consideration, which would have caused me to contemplate the refusal of interlocutory relief had I considered the balance of convenience favoured the Union.
23. At the conclusion of the hearing of the application for interlocutory relief the Court, in addition to ordering that such relief be refused, adjourned the directions hearing in the matter to 20 December 2010 at 9.30 am. Given that I have formed the view that the substantive application is wholly misconceived I decided that the matter should not be in my docket. The directions hearing date can be varied if it does not suit the docket judge.
    

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated: 10 December 2010