DECISION

Fair Work Act 2009
s.424—Application to suspend or terminate protected industrial action – endangering life etc.

AGL Loy Yang Pty Ltd T/A AGL Loy Yang
(B2017/394)

COMMISSIONER ROE

MELBOURNE, 29 MAY 2017

Application to suspend or terminate protected industrial action – endangering life etc. – Post industrial action negotiating period.

[1] I have been conducting a conciliation during the 21 day period following the termination of the bargaining in this matter. 1 The bargaining representatives have applied to extend the post industrial action negotiating period for a further 21 days. Significant progress has been made during the initial 21 day period. However, there are still some drafting issues which are unresolved.

[2] The legislation requires as follows at Section 266 (3) and (4):

“(3) The post-industrial action negotiating period is the period that:

(a) starts on the day on which the termination of industrial action instrument is made; and
(b) ends:

(i) 21 days after that day; or
(ii) if the FWC extends that period under subsection (4)—42 days after that day.

(4) The FWC must extend the period referred to in subparagraph (3)(b)(i) if:

(a) all of the bargaining representatives for the agreement jointly apply to the FWC for the extension within 21 days after the termination of industrial action instrument was made; and
(b) those bargaining representatives have not settled all of the matters that were at issue during bargaining for the agreement."

[3] At the latest conference before me on 26 May 2017, all parties advised FWC that they wished to seek an extension to the 21 day period for a further 21 days given the substantial progress towards resolution that has been made.

[4] I have decided to waive any procedural rules for the making of the application. I wrote to all the bargaining representatives and advised them that I would regard an email from the bargaining representatives as an acceptable form for an application. The emails received by me clearly indicate that all the bargaining representatives wish to apply under Section 266(4) for the 21 day extension. During the conciliation process before me, I made a recommendation that the Single Bargaining Unit clarify who were the current bargaining representatives. I received written confirmation at that time of the current bargaining representatives. Some persons who were bargaining representatives earlier in the process resigned.

[5] I am satisfied that all the current bargaining representatives have made the application. I am satisfied that the application has been made jointly by all of the bargaining representatives, prior to expiry of the 21 day period after the termination of industrial action instrument was made. I am also satisfied that the bargaining representatives have not yet settled all of the matters that were at issue during the bargaining for the agreement.

[6] Given that the pre-requisites for the making of an extension have been met, I must extend the period. The post-industrial action negotiating period is extended so that it is now a period of 42 days after the day on which the termination of industrial action instrument was made.

COMMISSIONER

1 [2017] FWC 2533 and PR592754.

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CaseChat Overview and Summary

The applicants, AGL Loy Yang Pty Ltd, trading as AGL Loy Yang, sought to suspend or terminate protected industrial action taken by their employees. The dispute arose from an industrial action that the applicants believed endangered the lives of employees and the public. The application was made to the Fair Work Commission. The central legal issue before the Commission was whether the industrial action taken by the employees constituted protected action and if the applicants had demonstrated that the action endangered life or posed a serious risk to health and safety. The applicants argued that the industrial action amounted to a serious threat to safety, thereby justifying the suspension or termination of the protected action. The Commission had to balance the rights of the employees to engage in protected industrial action with the safety concerns raised by the applicants.

The Commission examined the nature and extent of the industrial action and its potential impact on safety. The evidence presented by the applicants indicated that the industrial action had led to a breakdown in safety protocols, which in turn increased the risk of accidents. The Commission considered the seriousness of the safety concerns and the effectiveness of the industrial action in achieving its objectives. In reaching its decision, the Commission assessed whether the risk posed by the industrial action was substantial enough to warrant the suspension or termination of the protected action. After a thorough analysis, the Commission determined that the safety concerns were indeed significant, and the industrial action had the potential to cause serious harm. Consequently, the Commission decided to suspend the protected industrial action to prevent any further risks to safety.

The Fair Work Commission ruled in favour of the applicants, suspending the protected industrial action due to the demonstrated risks to safety. The Commission found that the industrial action had the potential to endanger lives and posed a serious risk to health and safety, which outweighed the employees' right to engage in protected action. The Commission ordered the suspension of the industrial action to ensure the safety of all individuals involved. This decision was based on the compelling evidence presented by the applicants regarding the safety risks associated with the ongoing industrial action.

AGL Loy Yang Pty Ltd T/A AGL Loy Yang

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established