Australia's largest privately owned cold storage company has been stopped from transferring workers to a new labour-hire company to avoid negotiating a fresh enterprise agreement.
The Federal Court has granted an interim injunction against Oxford Cold Storage, which provides refrigerated warehousing for pharmaceutical and food companies including McCain, Murray Goulburn, Fonterra and Peters Ice-Cream.
Gary Maas, Victorian secretary of the National Union of Workers, said it was only the second time he knew of a similar injunction being granted.
The first was during the Australian waterfront dispute of 1998 when Patrick Stevedores sacked and locked out its workforce and set up new companies to employ a non-unionised workforce, trained in Dubai.
"An injunction was put in place at that time because those workers had rights to take legal strike action. Patricks were injuncted [stopped] from bringing in a workforce from overseas," Mr Maas said.
"It is a similar situation here in that Oxford Cold Storage, who have their own enterprise agreement in place, also have contracts with labour-hire companies.
"Every time the union goes to negotiate an enterprise agreement and goes to bargain with a labour-hire company, they transfer the workers out of that company to a new company that already has a new enterprise agreement in place."
'The enterprise agreement never expires'
Oxford Storage employs about 600 people, but only about 20 are under the company's own enterprise agreement. The remaining workers are employed by different labour-hire companies, each with its own enterprise agreement.
The Federal Court issued the interim injunction after workers employed by a labour-hire company called Cold Unit were recently told they would be offered employment with a new company called Hagson Consulting before the Cold Unit enterprise agreement was due to expire this year.
"The implication is that employees wouldn't have been able under workplace law to continue bargaining," Mr Maas said. "You can only have a bargain when an enterprise agreement expires.
"Oxford Cold Storage has found this model of creating new shelf companies. The enterprise agreement never expires because there will always be a new agreement with a new shelf company. If a system like this is allowed to stay in place, the right to bargain and right to strike is not able to occur."
The interim injunction allows ???the union to continue trying to negotiate with Cold Unit for a new enterprise agreement. The dispute is expected to be heard in the federal court within a year.
"We are alleging adverse action by Oxford because the employees of their wholly owned labour-hire contractor Cold Unit ??? weren't allowed to exercise their workplace right to enterprise bargain," Mr Maas said.
Daniel Draicchio, 34, told a Federal Senate inquiry this year that he was transferred to four different labour-hire companies within four and a half years when he worked for Oxford Cold Storage. He said he was transferred to the fourth labour-hire company before the enterprise agreement expired. He left the company about four weeks ago.
"Six months before the EBA expired, we were asked to come into the office and sign on to a new agency. I asked them about the EBA and if we had to negotiate with that," he told the inquiry.
"They said, 'No, an EBA has already been filed with Fair Work; you just have to sign over once it's been approved.' So we were called back in and signed over, and that was done; we were on to a new agency.
"There are people that have been there for over 10 years and have never, ever bargained for an EBA - not once."
Luis Fleiszig, a director at Oxford Cold Storage, said his company offered workers the "best conditions in the industry".
The Fleiszig and the Stern Families established the cold storage company in 1975. Its main site is in the Melbourne suburb of Laverton North.
The company's bargaining power was stronger as a result of workers being employed by different labour-hire companies, Mr Fleiszig said. This reduced the risk of employees going on strike.
"Our bargaining position is better if they are [employed by] separate entities," he said. "We are not willing to put ourselves at extreme disadvantage. We have treated everyone more than fairly."
Mr Fleiszig said the company would "strenuously defend" its labour-hire agreement with Cold Unit when the matter goes to a hearing. He said his company had done nothing to adversely affect workers employed by the labour-hire company.