Report from Workplace Express (an IR Club web publication)
08 October 2008 4:20pm
The AIRC has rebuffed an attempt by Australia Post to establish a connection between the CEPU and left-wing community protest group Union Solidarity.
Australian Post applied to the AIRC for orders to stop unlawful industrial action on September 18 after it discovered Union Solidarity was organising a picket for later that day to prevent mail trucks entering or leaving its Dandenong Letters Centre.
Commissioner Dianne Foggo made the order prohibiting all Australia Post workers employed at, entering or leaving the DLC, and four named employees who were CEPU delegates at the DLC, from participating in the picket (see Related Article).
Significantly, however, she rejected Australia Post’s argument that the CEPU should also be bound by the order.
Australia Post barrister Chris O’Grady told the Commission that a principal/agent style relationship existed between the CEPU and Union Solidarity which meant the union could be held responsible for the picket even if it wasn’t directly involved in its organisation.
Australia Post presented what it argued was evidence of a historical connection between the two organisations, including:
* the listing of CEPU postal and telecommunications branch Victorian secretary Joan Doyle as a contact on Union Solidarity’s website;
* references to each other on their websites;
* personnel from both organisations attending union rallies; and
* the CEPU’s failure to publicly advise Union Solidarity not to participate in industrial action.
This meant that the CEPU had acquiesced in Union Solidarity’s actions and it would be open for Australia Post employees to conclude that the union had collaborated in them, Australia Post said.
The CEPU, represented by legal officer Dan Dwyer, responded by highlighting evidence from Australia Post managers that the union had not been involved in the picket and had complied with disciplinary processes involving two employees alleged to have been involved in previous industrial action.
Australia Post had failed to establish any principal/agent relationship that could see the union held liable for Union Solidarity’s actions, Dwyer said.
Evidence that the CEPU and Union Solidarity personnel had participated in rallies together – primarily photos showing Union Solidarity co-ordinator Dave Kerin and Doyle speaking at a rally in 2007 – was out of date and far too general to establish any connection between the two, the union argued.
Commissioner Foggo accepted the union’s arguments, finding that the photographs did not support Australia Post’s claim of a historical connection between the organisations.
“The photographs are not a complete record of the rally for the purpose of establishing what occurred and what supportive relationship Union Solidarity and the CEPU might have exhibited and nor do they give meaning to the rally’s intent,” she said.
Commissioner Foggo said she was satisfied that neither the CEPU or its officers had organised the industrial action.
She found that “no CEPU officers or members were observed on the picket line, that there were no directions issued under the name of the CEPU to participate in the industrial action and the CEPU was following the disciplinary appeal process in seeking to overturn the transfer of [the employee]”.
On that basis, Commissioner Foggo rejected Australia Post’s application to have the CEPU included in the s496 order. She banned the Australia Post employees covered by the order from participating in or organising industrial action for four months, until late December.
Australian Postal Corporation v CEPU [2008] AIRC 770 (6 September 2008)