Airservices Australia v United Firefighters' Union of Australia

[2011] FWA 2607

[2011] FWA 2607

FAIR WORK AUSTRALIA

EX TEMPORE DECISION

Fair Work Act 2009
s.418—Application for an order that industrial action by employees or employers stop etc.

Airservices Australia
v
United Firefighters’ Union of Australia
(C2011/4145)

COMMISSIONER SMITH MELBOURNE, 4 MAY 2011

Alleged industrial action at Airsevices Australia—Avalon.

[1] The following decision, now edited, was issued during proceedings conducted on 29 April 2011.

[2] This is an application by Airservices Australia (Airservices) pursuant to s.418 of the Fair Work Act 2009 (the Act) for an order directed towards the United Firefighters’ Union (UFU) and its members employed at the Airservices Aviation Rescue and Firefighting Station at Avalon Airport for industrial action to stop or not occur.

[3] For an order to issue it must appear to Fair Work Australia (FWA) that industrial action by one or more employees or employers that is not, or would not, be protected industrial action is happening, or is threatening, impending or probable, or is being organised. Industrial action is defined by s.19 of the Act.

[4] It is submitted by Airservices that the UFU and its members are engaged in industrial action by refusing to work a roster established by it in accordance with the Airservices Australia (Aviation Rescue Fire Fighting) Collective Agreement 2009—2013. Clause 4.3 of the agreement regulates how rosters are established.

[5] The UFU argue that there is no industrial action taking place for two main reasons:

1. The terms of clause 4.3 have not been properly applied and, therefore, there can be no industrial action as the direction given to employees was not regularly made in accordance with the agreement; and

2. The operation of clause 3.4—disputes avoidance and settlement procedures, in particular, that part of the clause which provides:

“While a concern or dispute is being dealt with work will continue as normal save for any bona fide safety concern.”

[6] It is argued that the dispute about the rostering of staff was notified to Airservices by the UFU and, therefore, clause 3.4.5 of the agreement applies. In this connection, UFU argue that the pre-dispute roster would continue to be worked.

[7] It is clear that there is significant disagreement between Airservices and the UFU and its members in relation to the roster proposed by Airservices. Issues regarding 10/10 and 10/14 rosters are not unknown to the Tribunal. It also appears to me that the UFU and its members would be unlikely to accept the proposed 10/10 roster. So much is clear from the minutes of a number of meetings and other material presented today. From these minutes it appears to me that industrial action is, at least, both threatened and probable.

[8] I make no finding as to whether or not industrial action is occurring as that would require me to consider the proper application of the agreement. Additional time, evidence and reflection would be needed to make such a finding.

[9] If there was a finding that Airservices had complied with the agreement then a failure to follow the direction may well constitute industrial action, but that may well be a matter for the Court.

[10] As to the operation of the dispute settlement procedure, it is my view that in circumstances where the employer is acting in accordance with the agreement clause 3.4.5 would not act as a constraint to the implementation of a direction made in accordance with the agreement.

[11] The observations of the Full Bench in the modern award case [2008 AIRCFB 1000] on the dispute resolution procedure in awards is both analogous and apposite. It said at paragraph 44:

“We agree, however, with those who suggested that the term ‘normally’ is too general. We have replaced ‘normally’ with the expression ‘in accordance with the award and the Act.’ We have retained the provision which makes it clear that the employer can direct what work an employee can perform.”

[12] On the basis that it appears to me that the 10/10 roster option would be strongly resisted and that industrial action is threatened or probable, I shall issue the order largely in terms of that provided by Airservices. I shall not refer to the 10/10 roster as I have made no finding as to whether or not the agreement has been followed.

[13] The order will be issued today and will apply for a period of three months.

[14] In relation to the order the definition of industrial action will simply be replaced for the purposes of this order and state that industrial action has the same meaning as s.19 of the Act. There is a consequential amendment in clause 4(b) and the term and date of effect will be 3.20 pm, 2 May 2011.

COMMISSIONER

Appearances:

T Jacobs of Counsel on behalf of Airservices Australia.

D Langmead of Counsel for the United Firefighters’ Union of Australia.

Hearing details:

2011.

Melbourne:

April, 28 and 29.

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