“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Hydro-Electric Corporation T/A Entura

[2016] FWC 163

[2016] FWC 163

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Hydro-Electric Corporation T/A Entura
(B2016/160)

COMMISSIONER CIRKOVIC MELBOURNE, 8 JANUARY 2016

Proposed protected action ballot of employees of Hydro Electric Corporation t/as Entura.

[1] This is an application by the Australian Manufacturing Workers’ Union (AMWU) made under s.437 of the Fair Work Act 2009 (Cth) (the Act) for a protected action ballot order in relation to certain employees of the Hydro-Electric Corporation t/as Entura (the Respondent).

[2] The AMWU has provided a Statutory Declaration of John Short, the Tasmanian State Secretary of the AMWU, addressing the statutory grounds. That Statutory Declaration makes it clear that the parties have met on approximately ten occasions since 5 May 2015 in an effort to negotiate the terms of an enterprise agreement and, whilst progress has been made, the parties are unable to reach agreement.

[3] On 8 January 2016, I was advised by Tammy Chu, Managing Director of the Respondent, that while the Respondent does not consent to the AMWUs application, it did not wish to make any submissions. In doing so, the Respondent did not challenge that the AMWU had been and was genuinely trying to reach agreement.

[4] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[5] On the basis of the material before me, including the statutory declaration of John Short of the AMWU setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that the requirements in s.443(1) of the Act have been met. Accordingly, I will make an order. The order [PR575969] is based on the draft order provided by the AMWU and will be issued in conjunction with this decision.

[6] Despite being satisfied of the statutory requirements requiring the Commission to make the order the subject of this application, I wish to note my concerns with a number of the questions to be stated in the ballot. In light of the Federal Court of Australia’s decision in Ambulance Victoria v United Voice [2014] FCA 1119 (Ambulance Victoria), some of the proposed action may not be industrial action falling within the meaning of s.19 of the Act. As indicated in Ambulance Victoria, this would depend upon whether the proposed action involved the employees concerned taking action in a manner that results in a restriction, limitation or delay in the performance of the employee’s normal duties. If some of the proposed action is taken separately, I consider that it may be problematic in terms of whether the action would fall within the scope industrial action, depending on the circumstances of the employees concerned. However, if taken concurrently with the stoppage, delay or limitation of the normal performance of work, the result may well be different, as specifically recognised in Ambulance Victoria.  1 As Tracey J observed in Ambulance Victoria:

“Fair Work Australia and its successor have, understandably, been reluctant, when dealing with applications made under s.437 of the Act, to find that proposed action can never constitute industrial action within the meaning of s.19. The terms in which the proposed action is described for the purposes of the ballot may lack legal precision and, more significantly for present purposes, may or may not constitute industrial action depending on the manner in which the action is performed. It will often be difficult for the Fair Work Commission to anticipate, at the time it makes an order under s.437, the context and manner in which union members might choose to take the proposed action. Once a ballot has been conducted and the action is imminent or has occurred greater clarity will often be present.” 2

[7] Given the present role of the Commission, the particular circumstances of this matter, and the variables and considerations associated with whether the various forms of proposed action may or may not fall within the scope of industrial action for the purpose of s.19 of the Act, I did not consider it was appropriate to hear evidence about these matters for the purpose of this application. That is a matter for later consideration if the circumstances arise.

COMMISSIONER

 1   Ambulance Victoria v United Voice [2014] FCA 1119, [24]

 2   Ambulance Victoria v United Voice [2014] FCA 1119, [18]

Printed by authority of the Commonwealth Government Printer

<Price code A, PR575963>