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

[2022] FWC 59

[2022] FWC 59

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

(B2022/15)

DEPUTY PRESIDENT BINET PERTH, 14 JANUARY 2022

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

1. At 3:45pm (AWST) on 14 January 2022 the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) 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 (Order).

1. The Application is the third in a series of such applications relating to protected industrial action occurring or proposed to occur at West Australian Newspapers Limited (WAN).  The Application is not opposed by the other parties. 

1. The persons in relation to whom the Order was sought are:

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 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)

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 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 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 5pm (AWST) 14 January 2022 until 3pm (AWST) on 21 January or until further order of the FWC (Third Application).

1. In reaching my decision in relation to the Third 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 Third Application was made by the AMWU in their capacity as bargaining representatives. I am satisfied that the AMWU has standing to make the Third Application.

1. In order to grant the Third 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 have undertaken intensive bargaining between 10 January 2022 and 14 January 2022.  The parties report that during this time, they have made more progress than they had achieved in the previous two years of bargaining and significantly more progress than had been achieved prior to the suspension made pursuant to the First Consent Order.

1. The parties have developed a proposal which they wish to canvass with the Employees.

2. The parties seek a further suspension to allow each party to seek direct input from the Employees into the proposal so that a decision can be made whether or not to proceed to a ballot of the Employees.

1. I am satisfied that a further suspension of the 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?

1. To date, protected industrial action has not been protracted. 

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 Third 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 the Third 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 seek to conclude enterprise bargaining without the distraction of protected industrial action and by placing an emphasis on enterprise level bargaining it upholds 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 negotiations for the proposed Agreement can be concluded.

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[7] 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

Printed by authority of the Commonwealth Government Printer

<PR737502>