Bechtel Australia Pty Limited v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

[2015] FWC 4415

[2015] FWC 4415 [Note: An appeal pursuant to s.604 (C2015/3318) was lodged against this decision - refer to Full Bench decision dated 3 August 2015 [[2015] FWCFB 5297] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.

Bechtel Construction (Australia) Pty Ltd; Bechtel Australia Pty Limited
v
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; Construction, Forestry, Mining and Energy Union
(C2015/4521)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 1 JULY 2015

Alleged industrial action at the APLNG project.

[1] The following decision formalises a decision given in transcript on 30 June 2015.

[2] On 29 June 2015 Bechtel Construction (Australia) Pty Ltd; Bechtel Australia Pty Limited (collectively known as Bechtel) filed an application for an order that industrial action by employees stop, pursuant to s.418 of the Fair Work Act 2009 (the Act).

[3] The application relates to alleged industrial action by members of the Construction, Forestry, Mining and Energy Union (CFMEU), the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) working on the APLNG project in Gladstone on 29 June 2015.

[4] The project is covered by the Bechtel Queensland LNG Projects Union Agreement 2014 [AE409870] which is still in operation.

[5] The employees and their unions expressed concern about the health and safety implications of the use of the substance perlite on site.

[6] Bechtel claims that the action taken was not protected industrial action and seeks an order that further action not take place pursuant to s.418(1) of the Act.

[7] Bechtel relies, particularly, on the evidence of Andrew Marsden, the Employee Relations Supervisor on the site, who gave evidence in the hearing and was cross-examined by the unions.

[8] The unions submit that the industrial action is not “industrial action” as defined by s.19(1) of the Act because it comes within the exception in s.19(2)(c).

[9] The evidence is clear that a general stoppage of work took place on 29 June 2015. That action has now ceased. I do also accept that a demand was made, in general terms, that the “perlite issue must be fixed” within 48 hours. Given the background, it is reasonable to conclude that further action is “threatened, impending or probable”. I am satisfied that the requirements of s.418(1)(b) are met.

[10] I am not satisfied that the evidence before the Commission establishes that the exception in s.19(2)(c) is made out.

[11] It is apparent, however that there is a major health and safety issue on the site which needs to be addressed. That should take place, in the Commission’s view, without further industrial action. I was advised that one of the unions has filed an application in the Commission to deal with the substantive issue.

[12] In summary, the provisions of s.418(1) require me to issue the Order and I do so in the terms submitted by Bechtel. The Order (PR568904) will operate from 30 June 2015 and remain in operation for a period of three months.

DEPUTY PRESIDENT

Appearances:

A Anderson solicitor with B. Hammond for Bechtel;

A. Borg for the CFMEU;

L. Misdon for the AMWU;

P. Rogers for CEPU.

Hearing details:

2015

Sydney (with video connection to Brisbane)

June 30.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR568927>