“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v ASC Pty Ltd T/A ASC
[2024] FWC 2004
•24 DECEMBER 2024
| [2024] FWC 2004 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU)
v
ASC Pty Ltd T/A ASC
(C2024/5066)
| COMMISSIONER PLATT | ADELAIDE, 24 DECEMBER 2024 |
Alleged industrial action at ASC Pty Ltd Trading As ASC – not industrial action as defined in s.19 of the Act – application dismissed
On 26 July 2024, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) lodged an application pursuant to s.418 of the Fair Work Act 2009 (Cth) (the Act) seeking an order that industrial action by ASC Pty Ltd T/A ASC (ASC or the Respondent) be ordered to stop as it was not protected action.
The ASC PTY LTD ENTERPRISE AGREEMENT 2021[1] (the Agreement) covers and applies to the workplace. Clause 23(k) is relevant to this matter and is extracted below.
On 6 March 2024, the Commission made a Protected Action Ballot Order (PABO)[2] in respect of the AMUE and ASC
The matter was conciliated by me at 2:30pm (SA) on Friday, 26 July 2024 but did not resolve.
A Hearing was subsequently conducted at 3:00pm (SA) Friday 26 July 2024. The Applicant was represented by Mr Phillip Ricconi from the AMWU, the Respondent was represented by Mr Simon Meehan of Counsel, permission was granted pursuant to s.596(2)(a). The AWU and CEPU attended the Hearing as observers.
The AMWU contended that the ASC took employer industrial action by not offering overtime on 26 & 27 July 2024 to employees who accepted but did not turn up to perform overtime on 20 July 2024, and that in so far as that conduct constituted industrial action, the Responded did not comply with the notice requirements prescribed in s.414(6) of the Act.
The Respondent contended that its actions in not rostering employees who did not attend work on 20 July 2024 for overtime on 26 & 27 July 2024 was permitted by Clause 23(k) of the Agreement and thus not industrial action. In the event that it was industrial action, the ASC accepted it had not complied with s.416(6) of the Act.
At the conclusion of the Hearing on 26 July 2024, I advised that I did not consider the ASC’s actions as ‘industrial action’ and dismissed the s.418 application. The reasons for my decision are as follows.
EVIDENCE
The AMWU submitted witness statements from Mr Gordon[3] and Mr Fayer[4]. The witnesses were not required to be cross-examined.
The AMWU and ASC provided written and oral submissions.
The facts were not in dispute and are summarised as follows:
· On 6 March 2024, the Commission made a Protected Action Ballot Order (PABO)[5]. The PABO was approved by a ballot.
· The ASC regularly programs overtime on weekends subject to Clause 23(k) of the Agreement.
· The ASC offered overtime on 20 July 2024 and a number of employees accepted.
· The AMWU notified the ASC that members intended to take industrial action by not attending for the rostered shift on 20 July 2024. The employer was not advised which employees were intending to withdraw their labour.
· A number of employees did not attend for work on 20 July 2024, the employer was not made aware of the basis for the non-attendance.
· The employer rostered overtime on 26 and 27 July 2024. The employer relied on Clause 23(k) of the Agreement and did not offer work to those persons who did not attend for work and did not notify ASC of their intention not to attend.
The AMWU contended that the employer’s action was ‘industrial action’ or in the alternative, Clause 23(k) did not operate as it is an ‘objectionable term’ within the meaning of s.12 of the Act.
LEGISLATION
Section 19 provides:
“19 Meaning of industrial action
(1)Industrial action means action of any of the following kinds:
(a)the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b)a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c)a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d)the lockout of employees from their employment by the employer of the employees.
Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited , PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.
(2)However, industrial action does not include the following:
(a)action by employees that is authorised or agreed to by the employer of the employees;
(b)action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;
(c)action by an employee if:
(i)the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and
(ii)the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
(3)An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.
Note: In this section, employee and employer have their ordinary meanings (see section 11).”
Section 418 provides:
“418 FWC must order that industrial action by employees or employers stop etc.
(1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:
(a) is happening; or
(b) is threatened, impending or probable; or
(c) is being organised;
the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.
Note: For interim orders, see section 420.
(2) The FWC may make the order:
(a) on its own initiative; or
(b) on application by either of the following:
(i)a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;
(ii)an organisation of which a person referred to in subparagraph (i) v is a member.
(3)In making the order, the FWC does not have to specify the particular industrial action.
(4)If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:
(a)some or all of which has not been taken before the beginning of the stop period specified in the order; or
(b) which has not ended before the beginning of that stop period; or
(c) beyond that stop period;
the FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.”
Clause 23(k) of the Agreement provides as follows:
k. Overtime Eligibility
The following clarifies when an employee is considered ineligible to work overtime:
i. Sick Leave taken on the day prior to an RDO or Saturday / Sunday (does not include a prearranged (with management) medical appointment or family leave) without proof of illness.
ii. Unexcused absence the week prior.
iii. Annual Leave on the day prior to overtime without prior notification (or notification received after 0900 hours on the day before the overtime).
iv. If an employee accepts overtime and does not turn up or has not notified the company before 0800 hours they should not expect to be offered overtime on the next occasion.
v. More than one hour late from 0700 hours (without prior arrangements on the overtime day).
CONSIDERATION
Whilst Clause 23(k) could be drafted more clearly, in my view it can reasonably be interpreted as providing the following:
· Employees who are rostered to perform overtime and do not attend, and do not advise the employer by 0800 on the day, will not be eligible to work overtime on the next occasion (in this case 26/27 July 2024).
In this case, whilst the employer was advised that industrial action was intended to be taken on 20 July 2024, it was not advised of who would take the industrial action. The employer could not have been certain that this was the reason for an employee failing to attend on 20 July 2024.
It was open for employees (including those who were taking industrial action) to advise the ASC by 0800 of their intention not to attend. That would have preserved their eligibility to be rostered for overtime on the following occasion.
I do not accept that Clause 23(k) is an objectionable term on the basis that it operates in breach of the General Protections provisions. In this case the employer had no information as to which (if any) employee was taking industrial action. In addition, there are a number of circumstances where the clause could clearly operate without any breach of the General Protections provisions.
I have reviewed a number of relevant cases on this topic in addition to those referred to in the Hearing including:
· AMWU v Fletcher International Exports Pty Ltd (2013) 233 IR 322, [86]-[88].
· Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 157, [109].
· Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (CFMEU) (The Nine Brisbane Sites Case) (No 3) [2018] FCA 564, [29] and [43].
· AMWU v The Age Company Limited PR946290, [46].
Having reviewed those cases and considered the facts before me, I am not persuaded that the ASC took industrial action. I find that the ASC applied the provision of Clause 23(k) of the Agreement.
CONCLUSION
I am not satisfied that the Respondent’s action constitutes industrial action as defined in s.19 of the Act, accordingly, the application is dismissed. An Order[6] reflecting this decision was issued on 26 July 2024.
COMMISSIONER
[1] [2021] FWCA 2855.
[2] PR772090.
[3] Exhibit AMWU 1.
[4] Exhibit AMWU 2.
[5] PR772090.
[6] PR777561.
Printed by authority of the Commonwealth Government Printer
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