“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v UGL Resources Pty Ltd
[2011] FWA 3653
•9 JUNE 2011
[2011] FWA 3653 |
|
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
UGL Resources Pty Ltd; Conneq Infrastructure Services (Australia) Pty Limited
(C2011/4542)
VICE PRESIDENT LAWLER | MELBOURNE, 9 JUNE 2011 |
Appeal against ex tempore decision of Senior Deputy President Richards recorded on transcript in matter C2011/4304 in Brisbane on 11 May 2011 and reflected in Order PR509444 - application for stay order.
[1] The is an application pursuant to s.606 of the Fair Work Act 2009 (FW Act) by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) for a stay of part of orders made pursuant to s.418 of the FW Act by Senior Deputy President Richards on 11 May 2011. 1 His Honour gave reasons in transcript. There were two applicants for the order at first instance. For convenience, these reasons will refer to them individually and collectively as the respondent.
[2] In determining whether to grant a stay application Fair Work Australia must be satisfied that there is an arguable case, with some reasonable prospect of success, in respect of both the question of permission to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted. The tribunal approaches applications for stay orders on the basis that, unless otherwise established, the order subject to appeal was regularly made. 2
[3] There was no dispute before the Senior Deputy President that industrial action in the form of unprotected bans had been happening on the respondent’s site and that unprotected industrial action in the form of a stoppage by some 300 employees covered by the AMWU and the Construction, Forestry, Mining and Energy Union (CFMEU) was happening. There is no dispute that the Senior Deputy President had jurisdiction to make an order under s.418 and, indeed, that his Honour was under a statutory obligation to make an order, certainly one that covered the striking employees of the respondent. The AMWU objects to the fact that the order extended to the AMWU, its officials and employees in circumstances where there was no evidence that the AMWU, its officials or employees had been involved in any way in the industrial action that had happened and was happening. The Senior Deputy President seems to have accepted that evidence but nevertheless decided to include the AMWU, its officials and employees within the scope of the order because of “the participation of the AMWU in the process this morning in respect of the various matters about which employees were aggrieved” 3. His Honour was referring to evidence to the effect that fresh grievances had been raised by employees that morning, that unprotected strike action was continuing - apparently in support of employee claims in respect of those matters - and that an AMWU organiser had participated in discussions in relation to those claims (albeit without supporting or defending the unprotected industrial action being taken by the employees). It may be noted that orders under s.418 had been made on two previous occasions in response to unprotected industrial action occurring on the site.
[4] His Honour took the view that his orders, as against the AMWU, its officials and employees, should have a prospective operation only and should not require the AMWU to stop any existing conduct - taking or organising industrial action - because it was not engaging in that conduct. 4 His Honour further explained his reason for extending the order to the AMWU in that limited way was because it was “required as a protective measure, if you like, in order to buttress the full effect of the order”5 against the employees of the respondent.
[5] In Australian Workers Union v Bluescope Steel Ltd 6 (Bluescope) a Full Bench of the AIRC held:
“Once the Commission has found that the jurisdictional requirements in s.496(1) have been satisfied it must make an order. The decision of the Full Bench in Transport Workers Union v TNT Australia Ltd 7 is authority for the proposition that while it is open to the Commission to make an order that is confined to relevant employees and does not extend to a union that represents those employees (or vice versa), it is nevertheless also open to the Commission to make an order that extends to the union, even though there is no jurisdictional finding of fact against the union, if, on the evidence and in the judgment of the Commission, such an order is desirable as having a rational or logical tendency to stop or prevent the industrial action.8 In the present case there was in fact evidence from which an inference of union involvement in, or support for, the action could be drawn. The advice to Mr Bergner that each crew would take its turn in not working the 21st shift came immediately after a meeting at the AWU office of delegates and members of each crew at which the AWU organiser was present that addressed concerns over proposed changes to the rostering arrangement at the BlueScope facility. It stretches credulity to suppose that the two events are unconnected or that what was conveyed to Mr Bergner was something different from that which had been decided at the meeting. We can see no basis for disturbing the Senior Deputy President’s conclusion that the order in this case should extend to the AWU.”
[6] The AMWU relied on a decision of the Full Court of the Federal Court in Transport Workers’ Union of New South Wales v Australian Industrial Relations Commission 9 (Transport Workers Case) where the Full Court held:
“38. .... [T]he Commission is not empowered to choose whatever means it thinks likely to enhance the attainment of the object of its orders, when it formulates those orders. Whatever method is adopted to attain the object, the order must be essentially an order that the relevant industrial action stop, not occur or not be organised, as the case may be. In the absence of a statutory indication that the Commission is entitled to invoke any other powers (if it still has any relevant other powers), or that it is able to give directions that will facilitate a particular outcome (as was the case under the former s.127), the Commission must focus its attention on the essence of the powers conferred on it, when it formulates its orders.
39. It is also necessary to bear in mind that the duty of the Commission to make orders is confined by s 496(1) of the WR Act to orders that "the industrial action stop, not occur and not be organised." The reference to "the" industrial action is a reference to industrial action that appears to the Commission to be happening, to be threatened, impending or probable, or to be in the process of being organised. It is necessary for the Commission to identify the industrial action that appears to it to be happening, threatened, impending or probable, or being organised, and to make orders that that industrial action stop, not occur or not be organised, as the case may be. Section 496(1) contains neither a duty nor a power to make orders that any act or omission that might possibly fall within the definition of "industrial action" in s 420 of the WR Act stop, not occur or not be organised. The Commission’s duty, and power, is limited to the industrial action that is the subject of the application before it.”
(underline emphasis given by the AMWU)
[7] In Health Services Union v Victorian Hospitals’ Industrial Association 10 (HSU) a Full Bench of the AIRC declined to follow the statements of principle in paragraph [39] of the Transport Workers Case. The Full Bench held:
“[18] It is true that the Commissioner’s order is expressed to apply in relation to industrial action as defined in the WR Act. In this respect the order seems to be of a kind which the Court condemned. There is a difficulty, however, in that the Court did not refer to s.496(9). That section, which we have set out earlier in these reasons, provides that in making an order under s.496(1) the Commission does not have to specify the particular industrial action at which the order is directed. It is impossible to reconcile the passage set out above with s.496(9). In the Transport Workers Case the Court may have been primarily concerned with the fact that in the decision under challenge the Commission had not identified the particular industrial action which gave rise to its jurisdiction to make an order under s.496(1). Whether that is so or not, it is clear, and consistent with the joint judgment more generally, that our paramount duty is to the words of the statute. Where the statute admits of no ambiguity our course is clear. The terms of s.496(9) provide an ample foundation for an order in general terms. The contention that the order is beyond power because it does not sufficiently identify the industrial action at which the order is directed cannot be accepted.”
[8] With respect to the Full Court, the Full Bench’s analysis seems to be unanswerably correct. In a supplementary written submission the appellant developed arguments that sought to limit the significance of the decision in HSU and preserve the relevance of the Transport Workers Case to the facts in this case. This is not the appropriate occasion to seek to deal with those arguments finally. It is sufficient to note that I am not yet persuaded that the reasoning in HSU in relation to s.496(9) led other than to a conclusion that an order under s.496 may be directed to industrial action generally and need not be confined to the particular industrial action that is “happening” etc.
[9] Moreover, the approach of the Senior Deputy President seems to be entirely consistent with the approach endorsed in Bluescope and Transport Workers Union v TNT Australia Ltd 11(TNT). While I accept that it is arguable that the approach endorsed in Bluescope and TNT is wrong (or now wrong) and that, on the proper construction of s.418, orders should not be made against unions or other persons who have not organised, aided, abetted or otherwise supported industrial action, the success of such an argument is far from guaranteed by the Transport Workers Case and would involve overturning Bluescope and TNT. In short, the present appeal is far from strongly arguable.
[10] In my view, the balance of convenience favours, even if only slightly, the refusal of a stay in this case. There is an established history of stoppages and unprotected industrial action on the site. Orders under s.418 have been issued on three occasions. The unprotected action that led to the current order continued on 11 May 2011 - that is, after the application for a s.418 order had been made - in relation to new issues, some of which the respondent had not had an opportunity to address under the relevant dispute resolution procedure. The cost to the respondent of any stoppage is large - in the order of $370,000 per day. The Senior Deputy President considered that the inclusion of the AMWU in the scope of the order would “buttress” its effectiveness in relation to the relevant employees - an approach authorised on the present Full Bench authorities. The AMWU, its officials and employees are not exposed to any immediate adverse consequences as a result of the making of the order: they will only be exposed if they take or organise etc. unprotected industrial action on the site. It is implicit in the way in which the AMWU ran the present application that it has no intention of engaging in such conduct. It is unlikely that the AMWU or any of its officials or employees will become exposed to civil penalties as a result of the orders.
[11] For these reasons, in the exercise of my discretion, I refuse the application for a stay. The appeal, should it proceed, will be heard on 1 July 2011 at 10.00 a.m. in Brisbane.
VICE PRESIDENT
Appearances:
L Weber for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries
Union” known as the Australian Manufacturing Workers’ Union (AMWU).
J Murdoch, Senior Counsel, for UGL Resources Pty Ltd and Conneq Infrastructure Services
(Australia) Pty Limited.
Hearing details:
2011.
Melbourne and Brisbane (video hearing)
June 8.
1 PR509444
2 Kellow-Falkiner Motors Pty Ltd v Edghill (Print S4216), Independent Schools Staff Association of the ACT v Comalco Aluminium Ltd (Print K0963)
3 Transcript at PN265
4 Transcript at PN266
5 Transcript at PN268
6 [2008] 171 IR 115
7 (2006) 154 IR 256
8 Ibid at paras [6] - [10], [13] - [14]
9 (2008) 171 IR 84
10 (2008) 173 IR 120
11 (2006) 154 IR 256
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