A UNIONIST has been found guilty of contempt of court for refusing a search of his home related to alleged unlawful industrial action occurring at AGL Energy’s Loy Yang Power Station.
The Federal Court upheld a contempt of court application by AGL Energy after the secretary of the CFMEU’s “Loy Yang Lodge” last month refused a court order to search his Traralgon home.
The union official would not comply with the search order, granted by Justice David O’Callaghan on 28 February 2017, which allowed an independent lawyer, an independent computer expert and a lawyer representing AGL, to enter his home.
AGL successfully applied to the Federal Court for a search order after the Fair Work Commission, in January, ordered the CFMEU to stop inciting members to ban overtime and take so-called ‘sickies’. The FWC order was prompted by a large number of Loy Yang employees allegedly calling in sick after enterprise bargaining began breaking down.
Justice O’Callaghan said that the “potential loss or damage to AGL would be serious if the order was not made” and there was sufficient evidence the unionist possessed “important” evidence.
“… There was a real possibility that he might destroy such material or cause it to be unavailable for use in an anticipated proceeding by AGL in relation to the general protections provisions of the Fair Work Act 2009,” Justice O’Callaghan said.
But when the trio arrived to search the home for evidence on the union representative’s laptop computer and mobile telephone, as well as any other hardware, email accounts or online storage devices, he only allowed the independent lawyer to enter.
The union official was informed of his two-hour window to seek legal advice, apply to the court to vary or discharge the order and/or gather together certain material subject to legal professional privilege or client legal privilege and hand them to the independent lawyer in a sealed envelope or container.
The court heard the unionist told the independent lawyer he did not want to comply with the order and was not prepared to “let AGL have [his] stuff” because there was confidential material on his laptop relating to employees of AGL.
The unionist claimed he was also concerned that the terms of the order permitted the search party to search areas of the premises such as his wife’s bedroom.
Through his legal counsel, the union official submitted that the terms of the search order were “unclear, ambiguous and incapable of compliance” and that it was not expressed in simple language understood by ‘everyday people’.
However, Judge O’Callaghan found the unionist had sufficient explanation of the terms of the order and was given ample opportunity throughout the morning of the proposed search to seek legal advice.
Justice O’Callaghan found the unionist guilty of contempt of court for failing to comply with the order by refusing to permit members of the search party to enter the premises so that they could carry out the search and other activities referred to in the order.
The proceeding will be re-listed for a penalty hearing on 30 May 2017.
Loy Yang strike set to be averted
Meanwhile, planned strikes at Loy Yang, Victoria’s biggest power station, have been averted with the state government stepping in to ensure the plant remains open.
Earlier this month, AGL signalled it would lock out its entire workforce and shut down the power plant and associated mine from May 15, due to a long-running dispute over a new enterprise-bargaining agreement.
The state’s Industrial Relations Minister Natalie Hutchins made an application to the Fair Work Commission to end the industrial action, which was heard on Monday afternoon.
On Tuesday morning, Deputy President Richard Clancy issued an order under s424 to stop the proposed strikes.
The potential strike at Loy Yang has attracted significant attention given the station generates about half of Victoria’s energy supply.
AMMA’s specialist workplace relations consultants are experts in managing enterprise bargaining campaigns and mitigating the threat of industrial action. Contact your local AMMA office for advice.