Andritz Pty Ltd v The Australian Workers' Union

[2013] FWC 2451

[2013] FWC 2451

FAIR WORK COMMISSION

DECISION

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

Andritz Pty Ltd
v
The Australian Workers' Union; "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
(C2013/3868)

SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 23 APRIL 2013

Alleged industrial action at Irwin Stockfeeds Mill Project, Lang Lang - application dismissed.

[1] This is an application by Andritz Pty Ltd (Andritz), pursuant to s.418 of the Fair Work Act 2009 (the Act) for an order to stop and prevent industrial action, directed against:

(a) The Australian Workers’ Union - Victoria Branch, including its officers, delegates, agents and employees (the AWU);

(b) “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) including its officers, delegates, agents and employees (the AMWU); and

(c) All employees of the following employers, who are employed or engaged to perform work at the Irwin Stockfeeds Feed Mill Project at Lang Lang in Victoria and who are covered by the Building and Construction General On-site Award 2010  1(the Award):

1. BGA Engineering (Aust) Pty Ltd (ABN 47 147 502 154);

2. BOC Limited (ABN 95 000 029 729);

3. Darren Paul O’Neill trading as Quality Engineering Solutions (ABN 14 779 490 402); and

4. Primaweld Engineering Pty Ltd (ABN 43 059 931 001).

[2] The application was brought by Andritz in circumstances where it is the principal contractor in respect of a work site at Lang Lang in Gippsland, the principal purpose of the Lang Lang site is to construct a feedlot and feed storage facility for Irwin Stockfeeds and each of the named companies employing employees against whom the order is directed who are contracted by Andritz to undertake work on the project. Andritz is “a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly)”, by the alleged industrial action.

[3] The application was made late on 8 April 2013 and first heard at 9.00 am on 9 April 2013. Following evidence from Mr G Scanlon (Andritz Site Manager for construction at the Lang Lang site), the AMWU, supported by the AWU, applied to adjourn the application. The application was adjourned until 16 April 2013.

[4] On 9 April 2013, I proceeded, as required by s.420 of the Act in those circumstances, to consider and make an interim order, 2 as sought by Andritz, save that it did not apply to employees of BOC Limited. My reasons, recorded in transcript3 were as follows:

“This is an application by Andritz Pty Ltd for the making of an order pursuant to s.418 of the Act that industrial action stop and not be organised directed to the AWU, AMWU and employees of various contractors engaged on the Irwin Stockfeeds Mill Project at Lang Lang in Victoria. I have already decided to adjourn the substantive hearing and determination of the matter to allow the unions to bring relevant evidence and have programmed the matter for that hearing on 22 April 2013. In those circumstances s.420 of the Act requires, unless there are public interest grounds against doing so, that an interim order must be made which would remain in operation until the application is determined.

The substantial issue before me in relation to the interim order is whether or not it should apply to the organisation of industrial action by the AWU and AMWU, including its officer, delegates, agents and employees. There is evidence of a dispute about payment on the site resulting in notification of a dispute by the AMWU and AWU which is to be heard by Commissioner Blair on Friday, 12 April 2013. There is also direct evidence from Mr Scanlon that employees of Darren Paul O’Neill, trading as Quality Engineering Solutions and Primaweld Engineering Pty Ltd have not attended the site to work on 8 and 9 April and that employees of BGA Engineering (Aust) Pty Ltd are performing work other than their normal work.

Mr Scanlon gives direct evidence that he observed the meeting of employees before the scheduled start of work on 8 April 2013. He also gave evidence of a conversation with Mr D O’Neill that the meeting was addressed by organisers of the AMWU and AWU who suggested that employees should not attend for work. Whilst this evidence is of what was said rather than the fact of the evidence, it is consistent with the failure of the employees to attend work following the meeting of 8 April 2013. There is no evidence of any other explanation being offered by employees of their failure to attend work on 8 and 9 April 2013, nor is there any evidence of protected industrial action or notice of protected industrial action.

On the evidence I am satisfied, for the purpose of the making of an interim order, that industrial action by one or more employees of Darren Paul O’Neill, trading as Quality Engineering Solutions, Primaweld Engineering Pty Ltd and BGA Engineering (Aust) Pty Ltd that is not protected action is happening and is being organised by the AMWU and AWU. In that circumstance I will make an interim order as I am required which will be in the terms proposed by the applicant in its draft order, save that it shall refer throughout to “interim order”, that BOC Limited in 3.1(d)(ii) of the draft order will be deleted because there is no evidence at all of employees of that company engaging in industrial action. Indeed, the evidence is to the contrary. The second 4.2 will be renumbered 4.3, and 4.3 renumbered 4.4. Finally, the date of effect will indicate that the order will have effect from 11 am on today’s date and will remain in force until the application, that is the substantive application, is determined.” [now edited]

[5] Evidence was given by Mr Scanlon at the hearings of both 9 and 22 April 2013. Ms S Lett, Andritz Project Manager gave evidence on 9 April 2013. No evidence was called by the unions at either hearing. This was explained by the AMWU, for the purpose of the 22 April 2013 hearing, on the basis that the focus on the application was now on whether or not industrial action was probable and in those circumstances, the unions had not chosen to call evidence given the onus was on the applicant to establish that jurisdictional fact.

[6] There is no challenge to the proposition that industrial action occurred on 8 and 9 April 2013 in the form of the failure by employees of the contractors BGA Engineering (Aust) Pty Ltd, Quality Engineering Solutions and Primaweld Engineering Pty Ltd to attend the site and perform normal work, nor to the proposition that the AWU and the AMWU organised that industrial action. Such action ceased following the making of the Interim Order.

[7] It is not suggested by Andritz, following the making of the Interim Order on 9 April 2013, that industrial action has occurred, been threatened or has been organised since 9 April 2013 or that it is imminent. The only basis advanced by Andritz for the making of the final order is that industrial action is probable. On the evidence, the only possible basis for a finding as to unprotected industrial action necessary to provide the jurisdiction for the making of an order under s.418 of the Act is that unprotected industrial action is probable. 4

[8] The AMWU raised the meaning of “probable” citing the judgment of the High Court of Australia in Darkan v R. 5 I am not prepared to apply a meaning of “probable”, addressed in the context of Queensland crime legislation to “probable” as it appears in s.418 of the Act, in circumstances where that judgement stresses that legal tests that turn on questions of probability will vary with context, including the legislative context,6 save to adopt the proposition that probable suggests a more exacting standard than possible.7

[9] The AWU relied on two authorities 8 which referenced a “well established pattern of industrial relations” and “a pattern of intermittent but continual industrial action” as a basis for finding that industrial action was probable in respect of s.418 of the Act or equivalent provisions in earlier legislation. In Coal and Allied Operations Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Others9 it was found that the history of resort to industrial action and evidence about the current state of industrial relations, is relevant to finding whether industrial action is probable.

[10] Andritz accepted that in some matters a finding that industrial action was probable was made on the basis of evidence of a pattern of intermittent but continual industrial action and conceded that there was no evidence of such action in the circumstances of this case. However, it submitted that such evidence was not the only basis upon which a finding that industrial action was probable could be made.

[11] The proposition that industrial action is probable was advanced by Andritz on the basis that the industrial action of 8 and 9 April 2013 was organised and taken in support of the position of the unions and their members in relation to a dispute about underpayment, which is the subject of dispute notifications 10 which were dealt with by Commissioner Blair on 12 April 2013 and, unless the dispute is resolved to the satisfaction of the unions and their members, it is probable that further industrial action will occur absence an order under s.418 (or s.420) of the Act.

[12] It is appropriate to have regard to evidence of past behaviour to determine the existence of jurisdiction for the making of an order under s.418 of the Act on the basis that industrial action is probable. 11 As conceded by Andritz there is no evidence of a pattern of intermittent but continual industrial action. Even accepting the proposition advanced by Andritz, without deciding the issue, that evidence of a pattern of intermittent but continual industrial action is not the only basis upon which a finding that industrial action is probable could be made, I am not satisfied that Andritz has established a satisfactory alternate evidentiary basis for a finding that unprotected industrial action is probable. The Andritz case that unprotected industrial action is probable rests on an inference that because unprotected industrial action has occurred and was organised on 8 and 9 April 2013 in respect of a claim for underpayment that it is probable that it will reoccur in the absence of an order under s.418 of the Act. There is simply no evidence to support such an inference. The proposition that because industrial action has been taken in relation to a particular issue on one occasion in the past it can be inferred that further industrial action is probable, without any supporting evidence, would give rise to the situation where a finding of probable industrial action would be made in any circumstance where any industrial action was taken but had ceased.

[13] On the evidence, I am not satisfied that unprotected industrial action is probable. The application for an order under s.418 of the Act is dismissed.

[14] I would note that any future industrial action in relation to the underpayment issue, either during or after the completion of the dispute resolution processes before Commissioner Blair, if it occurred, would lend support to a finding in relation to a pattern of intermittent but continual industrial action in relation to a future related application under s.418 of the Act by Andritz. As is usual, such an application would be listed at short notice.

SENIOR DEPUTY PRESIDENT

Appearances:

T Donaghey Counsel with C Iverson for Andritz Pty Ltd.

L Buntman for The Australian Workers’ Union.

B Terzic for “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

Hearing details:

2013.

Melbourne:

April 9 and 22.

 1   MA000020.

 2   PR535510.

 3   Transcript, at paras 292-295.

 4 Section 418(1)(b) of the Fair Work Act 2009.

 5 (2006) 227 CLR 373, at 381 and after, per Gleeson CJ, Gummow, Heydon and Crennan JJ.

 6   ibid, at 381 and 397.

 7   ibid, at 381 and 397. See also Kirby J, at 407.

 8   Re Worsley Expansion Project (CBI Constructors Pty Ltd) Partnership Certified Agreement 1997, Print R1748 (second last paragraph) and “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v UGL Resources Pty Ltd; Conneq Infrastructure Services (Australia) Pty Ltd[2011] FWAFB 4777.

 9 (1997) 73 IR 311 at 317-318.

 10   Matter numbers: C2013/3785, 3786, 3789 and 3790.

 11   Thiess Pty Ltd and Construction, Forestry, Mining and Energy Union, PR938334 at para 55.

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