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 108

[2022] FWC 108

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

(B2022/33)

DEPUTY PRESIDENT BINET PERTH, 21 JANUARY 2022

Application to suspend protected industrial action - cooling off – application granted

1. At 1:18pm (AWST) on 21 January 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).

1. 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

1. The Application is the fourth in a series of such applications relating to protected industrial action occurring or proposed to occur at WAN.  The Application is not opposed by WAN. 

1. 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.

1. The First Consent Order relevantly provided that:

“a.Any protected industrial action authorised by the protected action ballot order made by the FWC on 21 October 2021 [PR735110] is suspended from 6:00pm Australian Western Standard Time 11 December 2021 until 5:00pm Australian Western Standard Time on 17 December 2021 or until further order of the FWC.

b.   Any protected industrial action being taken by Employees including, but not limited to, protected industrial action notified by the AMWU, CFMMEU and CEPU on 3 December 2021 and 10 December 2021 is suspended from 6:00pm Australian Western Standard Time 11 December 2021 until 5:00pm Australian Western Standard Time on 17 December 2021 or until further order of the FWC.

c.   Any protected industrial action being taken by WAN including, but not limited protected industrial action notified by WAN on 9 December 2021 is suspended from 6:00pm Australian Western Standard Time 11 December 2021 until 5:00pm Australian Western Standard Time on 17 December 2021 or until further order of the FWC.”

1. 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).

1. 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.

1. 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).

1. 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.

1. In this Application, the parties have applied for orders for a further suspension of the protected industrial action from 3pm (AWST) 21 January 2022 until 12pm (AWST) on 4 February 2022 or until further order of the FWC.

1. 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

1. 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

1. 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.

1. 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?

1. The parties undertook employee information sessions between 17 January 2022 and 21 January 2022. The purpose of these sessions was to canvass employee views as to the negotiated proposal arrived at between the parties during the period 10 January 2022 and 14 January 2022.

1. The parties seek a further suspension to put the negotiated proposal to a ballot and hopefully obtain employee support for a new agreement.

1. The parties are concerned that if no suspension is in place, a reversion to protected industrial action will likely distract from the process of balloting employees and the making of a successor agreement.

1. In these circumstances I am satisfied that the suspension would be beneficial to the bargaining representatives.

What is the duration of the protected industrial action?

1. To date, protected industrial action has not been protracted and has only been actively engaged in for approximately 3 days. 

1. The parties submit that a limited duration of protected industrial action should not be seen as a barrier to approving the suspension in circumstances where the Application is made with the consent of all the parties.

1. I have treated the duration of the protected industrial action as a neutral consideration to Application.

Whether the suspension would be contrary to the public interest or inconsistent with the objects of the FW Act?

1. The suspension is not inconsistent with the objects of the FW Act.

1. By providing an opportunity for the parties to conduct a ballot and conclude an agreement without the distraction of protected industrial action is consistent with the primary objects of the FW Act.

1. The suspension does not undermine the maintenance of industrial norms. Through the suspension, it is hoped by all parties that agreement to the terms of a new enterprise agreement can be reached.

1. 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?

1. The Application is made by consent. It will provide an opportunity for the parties to ensure that an agreement can be put the ballot which will be endorsed by the Employees. This is a relevant matter which favours the granting of the suspension.

1. The parties did not identify, and I am unaware, of any other matters which might be relevant to my consideration.

1. Accordingly, the Application is granted and an order[10] 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

Printed by authority of the Commonwealth Government Printer

<PR737661>