Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Construction, Forestry, Maritime, Mining and Energy Union and Communications, Electrical, Electronic, Energy, Information, Postal,...

[2021] FWC 6629

[2021] FWC 6629

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
(B2021/1230)

DEPUTY PRESIDENT BINET PERTH, 17 DECEMBER 2021

Application to suspend protected industrial action - cooling off

[1] At 2pm (AWST) on 11 December 2021 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) filed an 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 (First Application).

[2] The Application related to protected industrial action occurring at West Australian Newspapers Limited (WAN). The Application was not opposed by WAN.

[3] The persons in relation to whom the Order was sought were:

a. WAN;

b. Employees of WAN who will be covered by the proposed West Australian Newspapers Production Employees Enterprise Agreement 2020 (Employees); and

c. the CFMMEU; the AMWU; and the CEPU (collectively the Unions)

[4] An order suspending protected industrial action (Consent Order) 1 and my reasons for decision2 were issued in relation to the First Application on 11 December 2021. An order for substituted service3 was issued on the same day to effect the service of the Consent Order on the Employees (Substituted Service Order).  

[5] The 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.”

[6] 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).

[7] In reaching my decision, I 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

[8] 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

[9] The Second Application was made by the parties in their capacity as bargaining representatives. I am satisfied that the parties have standing to make the Application.

[10] In order to grant the Application and make the order 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?

[11] The parties committed to conducting expedited bargaining during the period of the first suspension.

[12] The parties undertook robust bargaining during this period and the parties report that they have made more progress during the suspension than they have achieved in the previous two years of bargaining.

[13] With such momentum, the parties seek to continue bargaining with the benefit of a further suspension to avoid the potential distractions associated with ongoing protected industrial action during negotiations. A further suspension will allow those discussions to be conducted with a view to finalising negotiations and resolving the outstanding claim items which were the initial trigger for protected industrial action by all parties. A further suspension will also ensure that the parties continue to operate in a focussed bargaining environment with the potential to return to the pre-suspension status quo incentivising productive discussions.

[14] It would appear with the benefit of the suspension period coupled with the shared experiences of protected industrial action that the parties previously intractable positions have found some fluidity. The parties assure me that with the benefit of protected industrial action being further suspended, they will be best placed to finally resolve the outstanding issues and conclude negotiations for the proposed Agreement.

[15] In light of this I am satisfied that a further suspension of protected industrial action will assist in providing the framework for resolving the matters at issue in a timely manner.

What is the duration of the protected industrial action?

[16] To date, protected industrial action has not been protracted.

[17] 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.

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

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

[19] The suspension is not contrary to the public interest or inconsistent with the objects of the FW Act.

[20] The suspension will place an emphasis on enterprise level collective bargaining underpinned by simple good faith bargaining obligations. This is one of the primary objects of the FW Act as provided for by section 3(f). The suspension provides the opportunity for the parties to continue negotiations in a compressed timeframe and in a focussed environment. To that end, it is submitted that the suspension, in this matter, upholds in the objects of the FW Act.

[21] The suspension does not undermine the maintenance of industrial norms. Through the suspension, it is hoped by all parties that negotiations for the proposed Agreement can be concluded.

[22] Accordingly, no matters arise which militate against the suspension being granted on the basis that it is contrary to the public interest.

Any there any other relevant matters to consider?

[23] The Application is made by consent. This is a relevant matter which favours the granting of the suspension.

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

[25] The fact that the Application was made by consent weighs in favour of the Application being granted.

[26] Accordingly, the Application is granted and an order 4 to this effect will issue with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR736905>

 1   PR736696.

 2   [2021] FWC 6592.

 3   PR736697.

 4   PR736903.