Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Autoliv Australia Pty Ltd
[2009] FWA 1104
•16 NOVEMBER 2009
[2009] FWA 1104 |
|
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Autoliv Australia Pty Ltd
(C2009/10905)
SENIOR DEPUTY PRESIDENT WATSON | MELBOURNE, 16 NOVEMBER 2009 |
Appeal against the order [PR990574], ex tempore decision read onto transcript of Commissioner Blair at Melbourne on 9 November 2009 in B2009/10998 - application for stay order - stay order granted.
This decision, now edited, was given at the conclusion of proceedings on 13 November 2009.
[1] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU), by Notice dated 11 November 2009, applied for leave to appeal against the order 1 made by Commissioner Blair at Melbourne on 9 November 2009. The Notice of Appeal, which is made pursuant to s.604 of the Fair Work Act 2009 (Act), included an application for an order staying the operation of the Commissioner’s order pending the determination of the appeal or until further order of the Commission. The stay application has been assigned to me for determination.
[2] Autoliv Australia Pty Ltd (Autoliv) is the respondent to the appeal. It was the applicant below and now appears to oppose the application for a stay order.
[3] The Notice of Appeal identifies the one ground of appeal:
“The Commissioner acted ultra vires by making an interim order suspending industrial action authorised by the Protected Action Ballot in B2009/10329 and not limiting the said suspension to the proposed industrial action the subject of the application before him in B2009/10998.”
Principles
[4] A Full Bench of the Australian Industrial Relations Commission endorsed the following principles as applicable to the grant of a stay:
“In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospect of success, in respect of both the question of leave 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 established before a stay order will be granted.” 2
Conclusion
[5] I am satisfied that there is an arguable case that the Commissioner erred in suspending industrial action beyond that identified in the application before him in B2009/10998.
[6] The interim order was made pursuant to s.424(4) of the Act, which states:
“If FWA is unable to determine the application within that period, FWA must, within that period, make an interim order suspending the protected industrial action to which the application relates until the application is determined.”
[7] A major issue which arises in the appeal is the identification of the industrial action to which the application by Autoliv relates. It is clear that it changed between the time of application and the time of decision by Commissioner Blair. I am satisfied that it is arguable that the order of Commissioner Blair extended beyond the protected industrial action to which the application before him related. It is arguable, as the AMWU contends, that the statutory matters in s.424 of the Act must be applied in the context of the particular form of authorised industrial action identified in a s.424 application.
[8] I am satisfied that the balance of convenience favours the making of a stay order.
[9] The order, in its present terms, would prevent the relevant employees from engaging in forms of industrial action, authorised by the Act, within the bargaining scheme of the current Act.
[10] Autoliv argued that the balance of convenience would not support a stay order because, even if the Commissioner was wrong in his order under s.424(4) of the Act, other sources of power existed to make an order in the terms made. It is not clear to me that such an order, if made beyond the jurisdiction available in relation to the application before him, without notice to the parties, would not itself attract a challenge. I do not accept that a consideration of the shortness of the period of an order in respect of an order suspending protected industrial action would attract the same consideration, for the purpose of the balance of convenience, as the shortness of the period of operation of an order concerning unprotected industrial action. Autoliv would be prejudiced by a stay order insofar as further industrial action authorised by the secret ballot arising from B2009/10329 would be of similar effect to the industrial action identified in the 4 and 6 November 2009 Notices by Bargaining Representatives of Employees of Intention to take Employee Action. However, such prejudice could be avoided because Autoliv would have access to a further s.424 application in respect of such action, if notified by the AMWU of further intended protected action in such a notice.
[11] I am satisfied that an order should be made, staying the operation of clause 4 of the order of Commissioner Blair of 9 November 2009 [PR990574] to the extent that it applies to industrial action beyond that identified in the Notices by Bargaining Representatives of Employees of Intention to take Employee Action dated 4 and 6 November 2009 until the appeal against the decision is determined or until further order of Fair Work Australia.
SENIOR DEPUTY PRESIDENT
Appearances:
E White, of counsel, for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.
S Wood, of counsel, for Autoliv Australia Pty Ltd.
Hearing details:
2009.
Melbourne:
November 13.
1 PR990574.
2 See P Edghill v Kellow-Falkiner Motors Pty Ltd Print S4216.
Printed by authority of the Commonwealth Government Printer
<Price code A, PR990742>
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