Carlton and United Breweries (CUB) terminate 55 workers without notice

31 October 2016
On 10 June 2016, Carlton and United Breweries (CUB), terminated about 55 workers without notice and then “invited” them to reapply for their jobs through a labour-hire company, Programmed Maintenance Services Limited (Programmed). The terms and conditions of the jobs offered with Programmed were less beneficial to the workers than their previous contracts with CUB, for reasons including that they were less secure, required a 65% wage cut, and would be covered by a non-union EBA.

The workers declined the “invitation” to reapply for their jobs and instead set up camp outside the Abbotsford brewery, where they have been protesting from 6am until 6pm for the past 10 weeks.  Meanwhile, CUB has been bringing in replacement labour hire workers to perform the jobs of the 55 sacked employees in order to maintain its operations.

Bullying claims by labour hire workers

An application was lodged in the Fair Work Commission by Programmed on behalf of five of its replacement labour hire employees seeking anti-bullying orders against ETU and AMWU members who are participating in the protesting. The five labour hire replacements are considered to be “workers” for the purposes of their application, despite not being employees of CUB.

Order

On 15 August 2016, Deputy President Val Gostencnik made orders to suppress the names of the applicants after hearing concerns about the escalation of the alleged bullying conduct against them. In doing so, the Deputy President accepted that the fears of the applicants were "genuinely held”, and that the risk of the bullying behaviour being escalated was not “merely theoretical”.

"I am persuaded that an order which protects the applicants’ anonymity in the sense that there should not be a disclosure of their respective name or address should be made”, the Deputy President said.

The order allowing the complainants to be anonymous seems to fly in the face of procedural fairness in litigation, particularly that a respondent has the right to know the identity of the person who is suing them and the particulars of the case against them.

Interim orders

On 18 August 2016, the Deputy President made interim orders banning union officials and members from approaching or harassing the labour hire workers. The interim orders provide that certain named officials and a former CUB employee, AMWU and ETU “employees, officers, members or otherwise” must not accost any of the labour hire workers or:

  • photograph, film, or digitally record them;
  • abuse, obstruct or harass them;
  • call out to any of them using offensive or insulting names including "scab“.
  • hold up any poster, signage, notices or other like document or material at the picket which contains offensive or insulting language towards them; and
  • approach them or any vehicle driven by Programmed workers or in which they are a passenger.

The Deputy President said he was "satisfied" from the evidence provided, that there was a "serious question to be determined" as to whether some or all the alleged conduct of the picketers could be described as bullying "at work", and favoured making an interim order to "de-escalate any further improper conduct". He considered the effects of confining such an order to conduct directed only against the five applicants and concluded that doing so, and thereby naming them, would "undermine the utility of the confidentiality order".

In making the orders Deputy President Gostencnik noted:

"I therefore consider that it is appropriate to make a wider order which prohibits the conduct as identified in the order, being directed towards a group of individuals, described and defined in the order as, Programmed Workers"

Significance

The bullying application filed by Programmed is a novel use of the anti-bullying jurisdiction introduced by amendments to the Fair Work Act in 2014. Employers have traditionally sought court injunctions against protesting in industrial disputes, whereas anti-bullying laws have so far been used by employees to seek protection from the bullying conduct of their colleagues or managers.

 

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