AGC Industries Pty Ltd v Construction, Forestry, Mining and Energy Union
[2009] FWA 1631
•9 DECEMBER 2009
[2009] FWA 1631 |
|
DECISION |
Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.
v
Construction, Forestry, Mining and Energy Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union
(C2009/11217)
DEPUTY PRESIDENT MCCARTHY | PERTH, 9 DECEMBER 2009 |
Industrial Action.
Background
[1] On 3 December 2009 an application was lodged on behalf of 17 employers ("the Applicants") seeking that an order be issued pursuant to s.418 of the Fair Work Act2009 (“the FW Act") that industrial action not occur.
[2] The Applicants in this matter seek an order directed at the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“the AMWU”), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”) and The Construction, Forestry, Mining and Energy Union (“the CFMEU”) ("the Unions"). The Applicants also seek an order directed at Joe McDonald, Assistant Secretary of the CFMEU ("McDonald"), Brad Upton, Organiser of the CFMEU ("Upton") and Dave Simpson, Organiser of the CEPU ("Simpson") ("the Union Officials"). The order is also sought to be directed at members of the Unions employed by the Applicants at the Woodside Pluto LNG Project ("the Project").
[3] The Applicants are contractors who are contracted to construct various parts of the Project. The vast majority of the employees are employed on a fly in, fly out basis. The fly in, fly out nature of the engagement requires in most cases that the employees are provided with accommodation by the Project. The Project provides the accommodation in various camps primarily located in or on the outskirts of the township of Karratha.
[4] The Project intends introducing “motelling” into the camp known as Gap Ridge Village. Motelling involves employees being accommodated in available rooms and not having a room permanently allocated. Motelling is planned to commence at the village from 4 January 2010. Employees on site were advised of this by their respective employers on 27 November 2009.
[5] It is claimed that employees of the Applicants commenced industrial action by withdrawing their labour at start of business on Tuesday, 1 December 2009. Industrial action is claimed to have continued for 48 hours. It was not disputed that industrial action had occurred pm 1 and 2 December 2009 at the Project involving a significant number of employees employed by the Applicants (with some exceptions including those Applicants referred to in paragraph 15 below).
[6] The Applicants did not assert that industrial action was happening, nor that it was impending or threatened, nor that it was being organised.The Applicants rely on their assertion that the issue which prompted the industrial action has not been resolved and that further industrial action is probable. The Applicants seek an order to apply for two months, to enable the Project to introduce motelling without further industrial action occurring.
[7] A similar application involving another contractor on the Project was dealt with by me on 2 December 2009 1. In that matter I found that industrial action was occurring. I also found that industrial action was probable. As a consequence I issued an Order ("the UGR Order") that industrial action stop, not occur and not be organised2. The term of UGR Order is until 18 January 2010.
[8] The issue that I therefore must consider is whether industrial action is probable. If I find that industrial action is probable I am obliged to issue an order. The Applicants argue that an order should issue directed at the Unions, the Union Officials and members of the Unions. They also argue that any order that issues should be for a period of two months when the rollout of motelling will take place over that period.
Is industrial action probable?
[9] The Applicants base their argument that industrial action is probable on a number of fronts. Firstly they argue that the issue that gave rise to the industrial action that did occur has not been resolved and that it will be implemented in the time frame planned. They say that there is anger amongst employees that is likely to be vented through further industrial action as the motelling plan is implemented. The full implementation of motelling for those that are accommodated at the Gap Ridge Village will not be completed until early February 2010.
[10] They also argue that the Unions and Union Officials were involved in meetings that led to the industrial action and they have no confidence that those same Unions and Union Officials will not be involved in further actions that results in industrial action occurring.
[11] The Unions argue that there is not a probability of industrial action occurring. They say that the environment and the mood of employees has changed since the issuance of the UGR Order. They argue that the industrial action itself has taken the heat out of the situation. The Unions say that there have been and have planned further discussions regarding motelling, inferring that those discussions may be productive and it should not be presumed that they won’t. The Unions involved suggest that the circumstances that existed when I issued the UGR Order no longer exists, inferring that the angst amongst employees of the Applicants has dissipated.
[12] The Unions also argue that works on the Project have been undertaken for more than 12 months and throughout that period there has been no other incidence of industrial action. They argue there is no pattern of industrial action, no threat of industrial action and that industrial action is not being organised.
[13] In short the Unions argue that there is no basis to find that industrial action is probable.
Evidence
[14] Three witnesses gave evidence for the Applicants. The CFMEU called one witness and there was no other evidence from the other Unions. I am satisfied from the evidence that:
1. industrial action has occurred involving employees of each of the Applicants with two exceptions mentioned below;
2. the reason for that action was widespread dissatisfaction by employees of the Applicants regarding the plans for motelling to be introduced at the Gap Ridge Village;
3. there is no likelihood of those plans being altered or the implementation of them being delayed;
4. the CFMEU, though its official McDonald, was involved in the organising of the industrial action that did occur;
5. the AMWU and the CEPU may not have been as involved as the CFMEU in the organising of the industrial action that did occur but those two Unions also did not dissuade their members from the taking of industrial action;
6. the general mood and attitude of employees towards motelling last week was one of anger and that was a major influence on employees taking industrial action; and
7. the CFMEU, though its official McDonald, encouraged the taking of industrial action
[15] The above findings have some exceptions with respect to two of the Applicants. With respect to Alliance Contracting Pty Ltd (“Alliance”) there is no evidence that any of their employees took any industrial action. Mr Blackburn, for the Applicants, argues that whilst that may be the case that is no guarantee that industrial action may be taken in the future by employees of Alliance. Another Applicant, CBI Constructors Pty Ltd (“CBI”), provided no material about the attendance of employees of CBI on 1 and 2 December 2009. I find that industrial action did not happen on the days in question with respect to employees of Alliance. I have insufficient material to make any finding with respect to employees of CBI as to whether they took or did not take industrial action on the days in question.
[16] The findings above (in paragraph 14) were relevant to the circumstances that existed when the industrial action was taken however I must ascertain whether the current circumstances, and the future circumstances, are such that industrial action is probable. In that regard Mr Kucera for the AMWU argued that there had been no history of industrial action. He seemed to infer that FWA should not issue orders, especially long term orders that industrial action not occur unless such a history was found to exist. I disagree. A history or pattern of industrial action may be, and often is, a circumstance where it may appear to FWA that industrial action is probable but it is not the only circumstance.
[17] I consider that what I must ascertain then in this matter is whether given the mood of employees last week whether it is probable that further industrial action will occur. The evidence by the Applicants seems to rely on the circumstances leading up to industrial action not having altered in that motelling will be implemented. In essence it also relies on my assessment in the UGR matter being the same. They argue that there is no evidence from the Unions that the anger amongst employees has dissipated and there are no guarantees that industrial action will not re-ignite. They also rely on statements made by McDonald in the media and the lack of any retraction of those statements.
[18] Evidence was led by the CFMEU by one of its Officials (Mr Graeme Pallott) where they sought to establish that McDonald had been instructed by the Secretary of that Union that industrial action not occur at the Project. There was also evidence that meetings had taken place between employer representatives on the Project and further meetings were planned. The evidence does not establish that there is any expectation that those discussions will resolve the underlying concerns by employees about motelling. However it does indicate to me that the Unions are endeavouring to address the issues that arise from motelling through discussions.
Conclusions
[19] What in effect the Applicants ask that I rely on is evidence of:
(i) the reasons that led to industrial action, being the plans to implement motelling,
(ii) the continued intention for those plans to be implemented,
(iii) the mood of employees that existed when industrial action was taken; and
(iv) the involvement of Union Officials in meetings that preceded the industrial action.
[20] They add that there is no evidence of any change in mood by the Unions, Union Officials or employees and that any statements by advocates for the Unions involved should not be relied upon.
[21] What in effect the Unions ask that I rely upon is:
(i) their assessment, although not through any evidence, that the mood amongst employees has diminished to the extend that industrial action is not now probable, and
(ii) the lack of any history of industrial action on the Project.
[22] Whilst there is much evidence of the mood of employees during and immediately after the meetings that preceded the strike there is little that provides me with any confidence that the mood that did exist still exists, nor that there is currently a propensity to take industrial action to the degree that I should find it is probable that industrial action occur. There is indeed the possibility that industrial action will occur and I am by no means confident that it will not. However my task is to establish from what has been presented to me that it appears that there is a probability of industrial action occurring.
[23] The task is made no easier by the lack of any evidence from witnesses attending in person and the lack of any evidence upon which I could confidently rely of the current attitude of employees.
[24] From what has been provided it does not appear to me that there is a probability of industrial action occurring. Finally I note that I have taken particular regard to the assessment of the Unions that the industrial environment has changed on the Project that that industrial action is not probable, notwithstanding that the underlying issues still exist. Whilst the submissions by the Unions were not expressed as undertakings I do regard them as undertakings that the Unions involved will make every endeavour to prevent any further industrial action at the Project regarding motelling.
[25] The application for an order is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr J Blackburn, on behalf of the Applicants
Mr S Harben, on behalf of the Australian Building & Construction Commission
Ms S Walker, for the Construction, Forestry, Mining and Energy Union
Ms N Ireland, for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
Mr T Kucera, on behalf of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
Hearing details:
2009.
Perth:
4, 8 December.
1 C2009/11200 - United Group Resources v AMWU & CFMEU
2 PR991461
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