Caterpillar: industrial action at key supplier
In late 2008, one of Caterpillar’s key suppliers of large metal parts went into administration. The supplier’s employees were stood down without pay and without payment of wages already earned and accrued leave entitlements. A group of these employees picketed access points to the supplier’s premises, preventing Caterpillar from removing completed and partially completed parts, and also from removing the key moulds and patterns it needed to provide to an alternate supplier.
This matter gave rise to a range of legal issues, including laws concerning the regulation of industrial action, trespass, interference with contractual relations, conversion, public nuisance and the preconditions for injunctive relief.
We provided urgent, practical legal and strategic advice to Caterpillar in relation to how it should approach the supplier’s administrators and the picketing individuals. This included securing the administrator’s permission to access the site and ensuring that relevant unions were aware of our client’s rights to retrieve the items.
Simultaneously, we physically attended the picket line to both attempt to negotiate a favourable, non-litigious outcome to the access dispute, and to gather key pieces of evidence should such an outcome not be achievable and urgent injunctive applications were required.
Ultimately, we were able to satisfactorily negotiate an outcome with the administrator, unions and the picketing employees and Caterpillar was permitted access to the supplier’s premises to retrieve the items it urgently needed to maintain its own production commitments.
Lead partner: Murray Kellock.
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Chubb Security: discrimination claims
A Chubb security guard accidentally shot himself in the thigh. Subsequent investigations established that the design of the gun’s holster may have contributed to the unintentional discharge. Chubb subsequently introduced across its entire workforce a new type of holster. Two security guards refused to wear the new holster alleging that the requirement to wear it was discriminatory on a variety of grounds. The dispute was initially referred by the employees’ union to the Australian Industrial Relations Commission, where recommendations were made which Chubb (but not the employees) was happy to accept. Subsequently, one of the employees made an unfair dismissal claim, which was dismissed. After that, both employees commenced discrimination proceedings.
After two mediations in the Victorian Equal Opportunity and Human Rights Commission, three mediations in the Victorian Civil and Administrative Tribunal and a six day hearing (including conflicting expert evidence), Chubb successfully defended all claims brought against it. We subsequently sought costs orders against both employees and are currently awaiting the decisions in those applications.
Lead partner: Murray Kellock.
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Investigation of workplace fatality
In 2008, the employee of a contractor to one of our clients was fatally injured while conducting works on our client’s infrastructure.
WorkSafe investigators immediately commenced an investigation, and attended our client’s headquarters to seize relevant documents. Simultaneously, our client commenced its own investigation into the fatal incident.
This matter was significant due not only to the grave circumstances, and their effects on our client’s employees and other contractors, but also because of the seriousness with which our client treats protection against injury at its workplaces, and the very severe penalties imposed by occupational health and safety legislation for breaches of relevant obligations.
We calmly and carefully guided our client through this difficult period, providing immediate support and advice to our client in understanding and complying with its immediate notification and document production obligations. We also promptly conducted a detailed factual investigation into the incident, to enable the provision of advice on any exposure our client might have to prosecution as a result of the incident. This involved obtaining a deep understanding of the relevant infrastructure components that might have been relevant to the incident, and interviewing a range of witnesses and others with knowledge of the infrastructure, workplace training, infrastructure components and other related issues.
WorkSafe’s investigation is continuing.
Lead partner: Murray Kellock.
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National Australia Bank Limited: major industrial relations dispute
We represented National Australia Bank Limited (NAB) in a complex and strategically critical industrial dispute with the Finance Sector Union of Australia. The dispute involved a decision by NAB to discontinue the provision of taxi vouchers to a large group of employees engaged in their direct sales and services business. The matter was dealt with under a dispute resolution clause of a pre-WorkChoices reform certified agreement by way of an application made by the Union under section 170LW of the pre-WorkChoices reform Workplace Relations Act 1996.
We successfully upheld the right of the NAB to make this decision, resulting in significant cost savings. The matter involved a number of hearings before the Australian Industrial Relations Commission, including one on jurisdictional grounds, and culminating with a 3 day arbitration. The matter was watched closely by the other major Australian banking institutions as such a move, whilst contemplated previously, had never been implemented due to the potentially explosive industrial ramifications.
Lead partner: Murray Kellock.
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Sensis and Trading Post: orders that industrial instruments not transmit
Recently, Sensis (a wholly owned subsidiary of Telstra) decided to formally integrate its Trading Post business into its business.
This transaction gave rise to a transmission of business under the Workplace Relations Act 1996. The Trading Post employer entities were bound by a wide range of industrial instruments; pre-reform certified agreements, federal awards, and state agreements and awards. Sensis wanted to offer Trading Post employees the consistent and generally higher employment benefits provided under its own industrial instruments. To ensure this happened, Sensis and the Trading Post employers sought our assistance to obtain orders from the Australian Industrial Relations Commission that the Trading Post industrial instruments not become binding on Sensis as a result of the transaction.
The matter was significant because of the number of employees involved, the number of instruments involved (unusual in this type of application), the complex technical and industrial issues arising, and the commercial and practical importance of a successful outcome to Sensis.
We represented the Trading Post employers and Sensis in the application to the Commission and were successful in achieving the orders sought. We worked together with Sensis legal counsel and its human resources team to prepare the application in the most commercial and pragmatic manner possible. We provided the required legal advice on the merits of the application and represented the Trading Post in the proceedings. This occurred while simultaneously assisting Sensis and the Trading Post in seeking to resolve their practical and strategic issues with affected unions and employees.
Lead partner: Murray Kellock.
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Goldman Sachs JBWere - employee departures, new employment documentation & HR training
We represented Goldman Sachs JBWere in relation to the defection of a number of private wealth management advisor employees to competitor investment banks. This occurred simultaneously in Perth, Adelaide and Brisbane. Recently, we have also undertaken an exhaustive review of policy and employment contract documentation, the net result being the creation of a suite of modernised policies and employment contracts for use across all employment levels within Goldman Sachs JBWere. We also presented training sessions to Goldman Sachs JBWere HR personnel on a broad range of topics including termination of employment and investigation of workplace incidents.
In relation to the employee departure issue, we successfully implemented a strategy to ensure that the employees concerned complied with their post-employment restrictions and confidential information of Goldman Sachs JBWere was not compromised. In one case, court action in the Supreme Court of South Australia was threatened but not proceeded with on the basis that suitable undertakings were (ultimately) given by the employee concerned. Our team drew upon its previous significant experience in matters of this kind. Fact gathering and preparation of evidence was a substantial exercise and critical to the ultimate success of the strategy. The Melbourne office was primarily involved, but the national feature of the team came into play with the Sydney and Perth offices being utilised as required.
Lead partner: Murray Kellock.
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Hazelwood Power: Enterprise Agreement
We assisted Hazelwood Power (which owns and operates a power station and coal mine in the La Trobe Valley) with the drafting of a comprehensive enterprise agreement, the negotiation of that agreement with four unions and the lodgment with the Workplace Authority for its approval. This was a protracted and complicated process and we dealt with a range of issues including compliance with the National Code of Practice for the Construction Industry, prohibited content, side deeds, potential protected and unprotected industrial action and ballots.
Late in 2008, we reached the end of the process having overcome some complex technical issues, achieving many of the client’s commercial objectives and avoiding crippling industrial action. We worked closely with Hazelwood Power’s Human Resources team and industrial negotiators; met with the unions’ delegates, officials and lawyers; undertaken a combined information/training session for both Hazelwood Power and the unions’ negotiators; and met with Department of Employment and Workplace Relations representatives to discuss Code compliance.
Lead partner: Murray Kellock.
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Microsoft Australia: EEO & OHS
Microsoft Australia sought our assistance in developing and drafting national equal employment opportunity (EEO) and OH&S policies and training documentation.
In a short time frame, our team prepared the required EEO and OH&S policies and training documentation. Our team was fully prepared and had a detailed knowledge of the EEO and OH&S law and structure. This enabled us to work quickly and effectively with Microsoft Australia to give them the required result within their time frame.
Lead partner: Murray Kellock.
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National Australia Bank Limited: Federal Court proceedings
We represented National Australia Bank Limited (NAB) in complex Federal Court proceedings brought by a former senior executive. The claims made involved issues such as common law “reasonable notice”, quantum meruit and misleading and deceptive conduct under the Trade Practices Act 1974.
We achieved an extremely favourable settlement for NAB at the mediation stage of the proceedings. The issues and facts in question required a detailed knowledge of NAB’s senior executive remuneration structure, as well as the workings of a complicated industrial agreement. Having acted for the NAB for a number of years, we possessed this detailed knowledge and were able to use it in a strategically advantageous manner during the mediation stage.
Lead partner: Murray Kellock.
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ConnectEast: reorganisation and new Enterprise Agreement
We assisted ConnectEast (the holder of the “concession” to build and operate the EastLink toll road in Melbourne) with the transfer of its operational workforce from Australian Workplace Agreements to an Employee Collective Agreement and the transfer of some of its non-operational staff to another corporate entity. This involved drafting a complex enterprise agreement catering for the range of roles required to operate a toll road, including a 24x7 call centre staffed by full and part-time shift workers and casual employees. This agreement includes sophisticated arrangements for rostering, shift loadings, overtime, public holidays and leave entitlements. In this process, we have also assisted ConnectEast’s Human Resources team to roll out the new enterprise agreement directly to its staff and to arrange the required vote.
We worked closely with ConnectEast’s Human Resources team and legal counsel with the drafting of all required documentation, development of timelines and processes and implementation of those processes.
Lead partner: Murray Kellock.
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Westpac: sale of custodial service business to HSBC
We acted for Westpac in the sale of its custodial services business to HSBC. The matter was significant because it required approximately 200 employees to transition from employment with Westpac to HSBC. The Westpac employees were covered by generous industrial arrangements including a defined benefit superannuation scheme and the Finance Sector Union actively represented the interests of employees. This presented a significant potential exposure to retrenchment payments for Westpac.
The transaction was a great success with only two to three employees not transitioning to HSBC. Despite initial union opposition to the transaction there were no claims for retrenchment payments made by any employees. Our team’s experience in complex mergers and acquisitions transactions allowed us to negotiate a favourable offer of employment from the purchaser of the business. We were also able to guide Westpac’s communication process and minimise employee concerns. This included an innovative alternative to the defined benefit superannuation scheme the employees participated in at Westpac.
Lead partner: Andrew Gray.
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RailCorp (State Rail Authority of NSW): OHS prosecution
We represented RailCorp in WorkCover’s investigation and prosecution under the NSW Occupational Health & Safety Act into the Waterfall train derailment. The matter was significant because of the high public and political profile of the incident and the significant potential liability to financial penalties for RailCorp and its management team.
We represented RailCorp in its plea in mitigation and achieved a fine which was below RailCorp’s expectations given the seriousness of the accident. No individual managers were prosecuted and there was minimal publicity associated with the fine.
We worked closely with legal counsel and senior management of RailCorp to present detailed submissions and affidavit evidence showing the corrective measures RailCorp had implemented to improve safety following the accident which were commended by the Court. We were also actively involved in extensive discussions and negotiations with WorkCover representatives to reduce the number of charges initially proposed against RailCorp and to settle a comprehensive agreed statement of facts to be presented to the Court. This limited the time the matter was in Court and the amount of material which was adverse to our client which would have otherwise been presented in the public court hearing.
Lead partner: Andrew Gray.
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We were able to achieve a workable interim solution for Fairfax as an alternative to interlocutory orders being imposed by the Court. We then achieved a favourable settlement for Fairfax at conciliation stage.
Our experience in defending interlocutory proceedings of this nature in the Industrial Court meant we were able to prepare a strong defence for Fairfax. This was within the very short time frame required. Our specialist knowledge of the jurisdiction and pragmatic approach to the dispute enabled us to achieve the favourable outcome at mediation stage.
Lead partner: Andrew Gray.
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We guided our client through a difficult investigation and assisted them to effect the terminations without any litigation and in a confidential manner. Our experience in dealing with investigations into senior employees and our sensitivity to the issues that arise in these situations such as reputational risk, confidentiality, commercial inperatives and the need for a fair and timely investigation process allowed us to work closely with our client to achieve a confidential and efficient resolution of this matter.
Lead partner: Andrew Gray.
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BHP Billiton: Industrial Instruments
We have acted for BHP Billiton Limited subsidiaries, including BHP Billiton Iron Ore Pty Ltd, in relation to industrial and employment law issues for many years. Most recently this has included the following.
- Advising a number of BHP Billiton’s entities including Queensland Nickel, Ravensthorpe Nickel, Stainless Steel Materials and Iron Ore, in relation to the application of the Fairness Test to hundreds of their Australian Workplace Agreements to their validity and compliance with legislative framework.
- Advising Iron Ore in relation the drafting of a new union collective workplace agreement to apply to its employees covered by its notional agreement preserving a State award (NAPSA).
- Advising another BHP Billiton subsidiary, Queensland Nickel Pty Ltd, in relation to its offer of AWAs and a new union collective agreement to apply to its Yabulu nickel refinery.
- Advising BHP Billiton in relation to the potential impact of the ALP’s industrial policy both before and after the 24 November 2007 election.
We drew upon our deep understanding of BHP Billiton ’s business acquired through working with BHP Billiton for more many years. We used this knowledge and our extensive expertise in employment law to ensure compliance with all the relevant legislation and best result for the clients.
Lead partner: Robert Lilburne.
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ConocoPhillips: Bayu Undan and Darwin LNG Projects
We are advising ConocoPhillips about employment law and industrial relations. The advice concerns its US$1.9 billion gas recycling project on its Bayu Undan gas condensation field in the Joint Petroleum Development Area in the Timor Sea.
As independent East Timor’s first project this gives rise to many unique international labour law issues.
Our team is also advising ConocoPhillips about its Darwin Liquefied Natural Gas Project. As part of the project, ConocoPhillips is constructing a new LNG (liquefied natural gas) facility with an annual capacity of 10 million tonnes to be supplied with natural gas by submerged pipeline connected to the Bayu Undan gas field.
Our extensive experience in industrial and employment law for major resource and construction projects is being applied to this major project in international waters.
Lead partner: Robert Lilburne.
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Chubb Security : claim for overtime payments
We successfully defended Chubb in its defence of a claim that the way in which Chubb rostered and paid overtime did not comply with its enterprise agreement in the ACT. The proceedings were significant because the claim related to the entitlements of approximately 150 employees and there was significant potential liability for Chubb if the Union’s claim was successful.
We were able to successfully defend the case for Chubb and avoided the significant liability potentially associated with this claim. We achieved this result for Chubb by working closely with its business management team to prepare a comprehensive case relying on evidence of Chubb’s historical practice which supported Chubb’s interpretation of the industrial agreement.
Lead partner: Andrew Gray.
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Caterpillar : dispute with Gough & Gilmour
We acted for Caterpillar in its long running defence of proceedings commenced against it in the Industrial Relations Commission of New South Wales by its former New South Wales dealership. These proceedings involved in excess of 100 hearing days and are probably the largest case ever to be heard in the Commission.
We were recently successful in challenging the jurisdiction of the Industrial Relations Commission to hear this dispute. In a landmark decision, the New South Wales Court of Appeal determined that the Industrial Relations Commission did not have jurisdiction in respect of the commercial dealership agreement which was the subject of the dispute in the proceedings.
Lead partner: Andrew Gray.
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Mining Management Pty Ltd
We advised CITIC Pacific Mining Management Pty Ltd, a wholly-owned Australian subsidiary of Hong Kong listed company CITIC Pacific Limited, in relation to industrial and employment law strategy for the construction of its $5.2 billion new iron ore mine at Cape Preston.
The client was able to make appropriate arrangements for the Project to minimise the risk of delays in execution as a result of industrial action. This is achieved by Mallesons providing it with benefit of its extensive experience and knowledge of industrial and employment law issues which can effect, and have in the past effected, Projects and assisting it to structure the arrangements on the Project to minimise potential for industrial instruction and to maximise productivity.
Lead partner: Robert Lilburne.
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Chevron Australia Pty Ltd
We have been advising Chevron Australia Pty Ltd, a wholly-owned subsidiary of Chevron Corporation, in relation to industrial and employment law issues anticipated to arise in respect of the construction of its proposed $12 billion Gorgon LNG Project.
The client was able to make appropriate arrangements for the Project to minimise the risk of delays in execution as a result of industrial action. This is achieved by Mallesons providing it with benefit of its extensive experience and knowledge of industrial and employment law issues which can effect, and have in the past effected, Projects and assisting it to structure the arrangements on the Project to minimise potential for industrial instruction and to maximise productivity.
Lead partner: Robert Lilburne.
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Commonwealth Government - workplace agreements
We acted for two major Commonwealth Government departments in the negotiation of their employee collective agreements under the regime for workplace agreements and minimum conditions of employment introduced by the WorkChoices’ reforms.
We advised the departments on how to ensure that their agreements were in all respects compliant with WorkChoices requirements. The agreements were passed by an overwhelming majority of employees.
We were able to draw upon our extensive preparation for the introduction of WorkChoices to provide prompt and comprehensive advice on changes that were necessary to meet compliance requirements while maintaining minimum disruption to existing workplace conditions. This approach allowed our clients to avoid protracted negotiations with employees and facilitated a smooth transition from old to new agreements.
Lead partner: Ian Johnson.
“The firm now concentrates on advising a stellar collection of loyal blue-chip clients on a range of employment and industrial relations issues. Clients value greatly the ability of its practitioners to ‘neatly tailor their advice to our business requirements’.”
Chambers Global Guide 2006-2007