TWU attempt to shut down McColl's backfires


TWU's attempt to hold McColl's to ransom over employee sacking backfires, with a court fining it for unlawful industrial action

TWU attempt to shut down McColl's backfires
TWU attempt to shut down McColl's backfires
By Brad Gardner | November 4, 2010

The Transport Workers Union (TWU) has been slapped with fines after it tried to hold transporter McColl’s to ransom over its decision to sack an employee.

The Federal Magistrates Court has fined the NSW branch of the TWU $9900 and one of its delegates, Neale Harper, $1320 for waging a stop work action on February 16 last year.

Harper organised employees of McColl’s Wetherill Park depot to stop work until the company reinstated forklift driver and union representative Michael Lindsell.

The industrial action contravened the Workplace Relations Act – since superseded by the Fair Work Act – because enterprise agreements had to expire before industrial action was permitted. The agreement that applied to McColl’s staff expired on April 30 this year.

"There is nothing in the evidence before the court to suggest there was any legal justification for the industrial action in the events leading to the termination of Mr Lindsell," Federal Magistrate Shenagh Barnes says.

"Neither of the TWU representatives opposed, counselled against or attempted to dissuade the employees from striking."

When Harper told McColl’s a strike was on, the company requested he hold the meeting between 12pm and 2pm because it would have less of an impact on operations.

Harper refused and held the meeting at 7:30am. Workers then voted to leave the depot at 12pm and return to work the next day.

McColl’s suffered because of the decision, with the company saying no inbound trucks could be unloaded and no outbound trucks could be loaded.

Owner-drivers that turned up for work were left with no goods to carry, while freight went unsorted and McColl’s lost business to customers seeking next day deliveries.

"It can be inferred that some loss of income was suffered by McColl’s and the owner drivers a result of the industrial action (although this has not been quantified) and that McColl’s and its customers suffered some inconvenience and disruption to their businesses," Barnes says.

During the strike Harper repeatedly visited the depot manager demanding to know if the company would give Lindsell back his job.

The TWU claimed the industrial action was also due to occupational health and safety concerns but eventually conceded Lindsell’s sacking was the primary reason.

"The industrial action was motivated by the termination of Mr Lindsell…It has not been established that the action after the stop work meeting was motivated by a desire to address OH&S issues," Barnes says.

She says the disruption was "relatively small in scale" because staff returned to work on February 17.

Despite this, Barnes urged the union to educate and "control the conduct of its officers" to avoid future breaches of workplace law.

"The need for general deterrence suggests that a penalty that may deter others from committing similar contraventions is appropriate," she says.

The TWU could have been fined up to $33,000, while Harper faced a maximum penalty of $6,600.

Harper was also fined $100 for failing to return an expired permit to enter and inspect premises.

The permit expired in October 2008 but was not returned within the 14-day timeframe. Harper returned it in June 2009 after realising it had expired.

He says he tried to obtain a renewal and did not use the permit once the use by date passed.


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