Application for an Order that industrial action by employees or employers stop

[2017] FWC 4165

[2017] FWC 4165

FAIR WORK COMMISSION

DECISION NO. 2

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

Prosegur Australia Pty Limited T/A Prosegur
v
Transport Workers' Union of Australia
(C2017/4101)

COMMISSIONER CAMBRIDGE ADELAIDE, 11 AUGUST 2017

Application for an Order that industrial action by employees or employers stop etc.

[1] This Decision is made further to an earlier Decision made in this matter on 27 July 2017 (the earlier Decision).

[2] The application was made by Prosegur Australia Pty Limited T/A Prosegur (the employer) and it seeks an Order from the Fair Work Commission (the Commission) against the Transport Workers’ Union of Australia (the Union) and members of the Union who are engaged at the employer’s depot located at 29-33 Richard Street, Hindmarsh, South Australia (the relevant employees), including, specifically, a Union delegate at the Hindmarsh depot, Mr Michael Standish (Mr Standish).

[3] The further Hearing of this application was conducted today, 11 August 2017, in Adelaide. The further Hearing has included the provision of additional evidence taken from both the employer and the Union.

[4] The enterprise bargaining to which this application relates has taken an unusual path as a result of the email dated 19 July 2017, from Mr Standish to the employer’s Managing Director, Mr Smith (the 19 July email). As mentioned in the earlier Decision, the 19 July email included a proposal whereby Mr Standish would make arrangements to engage the services of a contractor to run the employer’s South Australian operation, and thereby allow the employer to remove all South Australian based employees. This proposition was advanced as a basis upon which to resolve the on-going industrial disputation surrounding enterprise agreement negotiations for a replacement to the existing enterprise agreement.

[5] The circumstances created by the 19 July email provided foundation for the making of an Interim Order that was issued on 27 July 2017.

[6] Subsequently, evidence that has emerged from the further Hearing today has significantly altered the circumstances of this matter. Specifically, evidence has confirmed that on 2 August 2017, Mr Standish resigned as a Union delegate, and he also resigned from membership of the Union.

[7] In view of these changed circumstances, there is now no sound basis upon which to currently establish that the Union, as opposed to Mr Standish, would, in the future, take, threaten, or organise industrial action in breach of the requirements of subsection 413 (3) of the Fair Work Act 2009 (the Act).

[8] The very unusual circumstances that have emerged in this matter require some departure from the general or ordinary means that are usually adopted for determination of an application taken under s. 418 of the Act.

[9] In the circumstances that are now presented, I have decided to revoke the Interim Order made on 27 July 2017, with prospective effect, on and from 4 September 2017, and to require the Parties to re-commence enterprise bargaining negotiations within 7 days, that is by no later than 18 August 2017.

[10] Consequently an Order [PR595248] revoking the Interim Order of 27 July 2017 shall be issued. The application is stood over, and it shall be relisted at the request of either Party. In the event that no request is made for relisting of the matter before 25 September 2017, the application shall then be dismissed.

COMMISSIONER

Appearances:

Mr N Stevens of Stevens & Associates Lawyers appeared for Prosegur Australia Pty Limited.

Mr E Lawrie appeared for the Transport Workers’ Union of Australia – SA/NT Branch.

Hearing details:

2017.

Adelaide and Sydney (video hearing):

August, 11.

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<Price code A, PR595238>