Tricord wins labour battle

Labour hire firm Tricord Personnel has won a long-running battle with the Construction Forestry Mining and Energy Union and also gained legal legitimacy for its contracting system.

The battle concluded in the Western Australian Industrial Appeal Court last year with Justices Christopher Steytler, Eric Heenan and Ralph Simmonds agreeing to allow Tricord’s appeal.

Their judgement was handed down on December 22.

Tricord Personnel director Peter Wieske told WA Business News that the court decision confirmed what the company had been saying – that its workers were bona-fide contractors.

“The CFMEU tried to make them out to be employees,” he said.

“The other thing this decision has done is give us a better position to work from.”

Tricord has often been compared to labour hire companies operating under the Odco decision, a decision of the Federal Court that give legitimacy to a type of contracting arrangement.

Under the Odco system, workers hired to firms were contractors in their own right and therefore not employees.

“Now that we’ve won our court case, we don’t need to rely on the Odco decision,” Mr Wieske said.

Michael Hotchkin, a partner of Hotchkin Hanley which represented Tricord agreed that the decision was significant for the labour hire firm.

“It establishes a precedent with the same strength as the Odco one,” he said.

CFMEU State secretary Kevin Reynolds said the cost of appealing the case to the High Court would be too prohibitive for the union.

In an interesting aside, Federal Treasurer Peter Costello was one of the barristers involved with the decision.

The battle between the CFMEU and Tricord began in 2003 with the union using WA industrial relations law to try and force an enterprise bargaining agreement onto the labour hire firm.

The union also launched an unfair dismissal action against the firm on behalf of two of its members, Kevin Bartley and Craig Fowler.

Both matters stalled in the WA Industrial Relations Commission before Commissioner Jack Gregor who decided the matter fell outside the commission’s jurisdiction.

That decision was overturned by the Full Bench of the WAIRC and the matter was appealed to the Industrial Appeal Court.

In the decision presiding justice Steytler says he “concluded then that the Full Bench [of the WAIRC] erred in concluding Tricord was an ‘employer’ of each of the two individuals”.

The enterprise bargaining push came one month after the union had launched a similar enterprise order action against Tricord client Hanssen Pty Ltd, a building firm run by Jerry Hanssen who is well known for his objection to the CFMEU’s EBAs.

Under WA’s industrial laws a union can apply to the WAIRC to make an enterprise order if it believes the employer is not negotiating in good faith.