Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Construction, Forestry, Maritime, Mining and Energy Union and Communications, Electrical, Electronic, Energy, Information, Postal,...
[2022] FWC 888
| [2022] FWC 888 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.425—Industrial action
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
and
Construction, Forestry, Maritime, Mining and Energy Union
and
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Western Australian Newspapers Limited
(B2022/333)
| DEPUTY PRESIDENT BINET | PERTH, 14 APRIL 2022 |
Application to suspend protected industrial action – cooling off – application granted
At 5:58pm (AWST) on 14 April 2022 the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU), the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (collectively the Unions) filed an application (Application) pursuant to section 425 of Fair Work Act 2009 (Cth) (FW Act) in the Fair Work Commission (FWC) for an order to suspend protected industrial action (Order).
The persons in relation to whom the Order was sought are:
a. West Australian Newspapers Limited (WAN);
b. Employees of WAN who will be covered by the proposed West Australian Newspapers Production Employees Enterprise Agreement 2020 (Employees); and
c. the Unions
The Application is the fifth in a series of such applications relating to protected industrial action occurring or proposed to occur at WAN in relation to the negotiation of an agreement to replace the West Australian Newspapers Production Employees Enterprise Agreement 2015 (2015 Agreement) with a new agreement (Proposed Agreement).
The Application is not opposed by WAN.
The first application was made at 2pm on 11 December 2021 (First Application). An order suspending protected industrial action (First Consent Order)[1] and my reasons for decision[2] were issued in relation to the First Application on 11 December 2021. An order for substituted service[3] was issued on the same day to effect the service of the Consent Order on the Employees.
On 17 December 2021, the parties applied for orders for a further suspension of the protected industrial action from 5pm (AWST) 17 December 2021 until 5pm (AWST) 14 January 2022 (Second Application).
An order suspending protected industrial action (Second Consent Order)[4] and my reasons for decision[5] were issued in relation to the Second Application on 17 December 2021. An order for substituted service[6] was issued on the same day to effect the service of the Second Consent Order on the Employees.
On 14 January 2022, the parties applied for orders for a further suspension of protected industrial action from 5pm (AWST) 14 January 2022 until 3pm (AWST) 21 January 2022 (Third Application).
An order suspending protected industrial action (Third Consent Order)[7] and my reasons for decision[8] were issued in relation to the Third Application on 14 January 2022. An order for substituted service[9] was issued on the same day to effect the service of the Third Consent Order on the Employees.
On 21 January 2022, the parties applied for orders for a further suspension of protected industrial action from 3pm (AWST) 21 January 2022 until 12pm (AWST) 4 February 2022 (Fourth Application).
An order suspending protected industrial action (Fourth Consent Order)[10] and my reasons for decision[11] were issued in relation to the Fourth Application on 21 January 2022. An order for substituted service[12] was issued on the same day to effect the service of the Third Consent Order on the Employees.
In this Application, the parties have applied for orders for a further suspension of the protected industrial action from 12.01pm (AWST) 17 April 2022 until 6pm (AWST) on 23 April 2022 or until further order of the FWC.
In reaching my decision in relation to this Application, I have considered all the submissions made and the evidence tendered by the parties, even if not expressly referred to in these reasons for decision.
Relevant Statutory Provisions
Section 425 of the FW Act provides that:
“FWC must suspend protected industrial action--cooling off
(1) The FWC must make an order suspending protected industrial action for a proposed enterprise agreement that is being engaged in if the FWC is satisfied that the suspension is appropriate taking into account the following matters:
(a) whether the suspension would be beneficial to the bargaining representatives for the agreement because it would assist in resolving the matters at issue;
(b) the duration of the protected industrial action;
(c) whether the suspension would be contrary to the public interest or inconsistent with the objects of this Act;
(d) any other matters that the FWC considers relevant.
(2) The FWC may make the order only on application by:
(a)a bargaining representative for the agreement; or
(b)a person prescribed by the regulations.”
Consideration
The Application was made by the Unions in their capacity as bargaining representatives. I am satisfied that the Unions have standing to make the Application.
In order to grant the Application and make the orders sought by the parties, the FWC must be satisfied that the suspension is appropriate taking into account:
a.whether the suspension would be beneficial to the bargaining representatives for the agreement because it would assist in resolving the matters at issue;
b.the duration of the protected industrial action;
c.whether the suspension would be contrary to the public interest or inconsistent with the objects of this Act; and
d.any other matters that the FWC considers relevant.
Would the suspension be beneficial to the bargaining representatives?
On 8 April 2022, the Unions applied to the FWC, pursuant to section 240 of the FW Act, to seek assistance from the FWC in respect to the negotiations for the Proposed Agreement having reached an effective stalemate in the bargaining process.
Over the period of 12 April 2022 to 14 April 2022 the parties undertook negotiations with the assistance of the FWC. The outcomes of those discussions were that the parties reached a consensus position in relation to a Proposed Agreement which is capable of being put to employees by way of an access period and ballot pursuant to the FW Act.
All the parties support and endorse the Proposed Agreement.
In order to enable the opening of an access period and the holding of a ballot, the parties, by consent, have agreed to suspend all protected industrial action to allow the access period and ballot to be conducted without the distraction of protected industrial action which may undermine the capacity of the parties to make the Proposed Agreement.
It is submitted that a further suspension will ensure that the parties can undertake a further access period and ballot without protected industrial action preventing employees from working and being paid during this time. In the view of the parties, if no suspension is in place, a continuation of protected industrial action will likely distract from the process of balloting employees.
I am satisfied that in the circumstances that the suspension would be beneficial to the bargaining representatives.
What is the duration of the protected industrial action?
To date, protected industrial action has taken place continuously over a period of approximately 11 weeks. This is a continuation of protected industrial action by the Applicants and Respondent which started over 4 months ago and was previously suspended.
The duration of the protected industrial action favours the ordering of the temporary suspension in the context of the consent position adopted by the parties in order for the Proposed Agreement to be made and the protected industrial action to be ultimately brought to an end.
Whether the suspension would be contrary to the public interest or inconsistent with the objects of the FW Act?
A further suspension will continue to place an emphasis on enterprise level collective bargaining underpinned by good faith bargaining obligations. This is one of the primary objects of the FW Act as provided for by section 3(f) of the FW Act.
A further suspension provides the opportunity for the parties to put a revised package to a further ballot without the distraction of protected industrial action moving the parties away from the progress made to date. To that end, it is reasonable to conclude that a further suspension, in this matter, will continue to uphold the objects of the FW Act.
The suspension does not undermine the maintenance of industrial norms and, through a further temporary suspension, it is hoped by all parties, that the Proposed Agreement can be “made” while employees continue to work and get paid.
Accordingly, no matters arise which militate against the suspension being granted on the basis that it is contrary to the public interest or inconsistent with the objects of the FW Act.
Any there any other relevant matters to consider?
The Application is made by consent. It will provide an opportunity for the parties to ensure that an agreement can be put to the ballot which will be endorsed by the Employees. This is a relevant matter which favours the granting of the suspension.
The parties did not identify, and I am unaware, of any other matters which might be relevant to my consideration.
Accordingly, the Application is granted and an order to this effect will issue with this decision.
DEPUTY PRESIDENT
[1] PR736696
[2] [2021] FWC 6592.
[3] PR736697.
[4] PR736903.
[5] [2021] FWC 6629
[6] PR736697.
[7] PR737505.
[8] [2022] FWC 59
[9] PR737503.
[10] PR737666.
[11] [2022] FWC 108
[12] PR737663.
Printed by authority of the Commonwealth Government Printer
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