Berkeley Challenge Pty Ltd T/A Spotless v United Voice

[2011] FWA 6405

[2011] FWA 6405

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.418—Industrial action

Berkeley Challenge Pty Ltd T/A Spotless
v
United Voice
(C2011/5852)

COMMISSIONER BISSETT MELBOURNE, 16 SEPTEMBER 2011

Alleged industrial action at Tullamarine and Avalon airports.

[1] This is an application by Berkley Challenge Pty Ltd (BCPL) pursuant to s.418 of the Fair Work Act 2009 (the Act) for an order that industrial action that is happening or threatened, impending or probable or being organised stop on the grounds that the industrial action is not, or would not be, protected industrial action.

[2] The application relates to two notices of industrial action served by United Voice on BCPL. The first notice is dated 12 September 2011 and relates to action to be taken on 16 September 2011. The second notice is dated 13 September 2011 and relates to action proposed to be taken on 17-19 September 2011.

[3] The application was made on 14 September 2011 at 4.59pm and was heard on 15 September 2011. I issued a decision in transcript with respect to the notice of 12 September 2011 because of the imminent commencement of action on 16 September 2011 at 00:01. In that decision I determined that the notice of industrial action issued on 12 September 2011 in accordance with s.414 of the Act met the requirements of the Act. As a consequence the action taken pursuant to that notice would be protected action. The application for orders that the industrial action stop with respect to that notice was, therefore, dismissed.

[4] I have now had the opportunity to consider the submissions of the parties with respect to the notice issued pursuant to s.414 of the Act on 13 September 2011. I have also considered the breadth of authority to which I was referred by both parties.

[5] In my view BCPL has had notice such that it has been able to take appropriate defensive action. That BCPL has not been able to take action to minimise the inconvenience of the industrial action to it to the extent it would like is, as found by Barker J in Alcoa of Australia Ltd (ACN 004 879 298) v The Australian Workers’ Union, ‘no reason of itself to find that a notice should [be] as specific as the applicant in this case would like it to be.’ 1

[6] Consequently, I find that the notice issued by United Voice on 13 September 2011 meets the requirements of s.414 of the Act. The action taken as specified in that notice is, therefore, protected action.

[7] The application of BCPL is dismissed.

[8] The requirement to determine this application within such a short time frame has meant that detailed reasons have not been given. Such reasons will be issued in the near future.

COMMISSIONER

Appearances:

D. Trindade for the Applicant.

C. Dowling of Counsel for the Respondent.

Hearing details:

2011.

Melbourne:

September 15.

 1 196 IR 103, 36.

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