BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union

[2013] FWC 2571

[2013] FWC 2571

FAIR WORK COMMISSION

DECISION

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

BHP Coal Pty Ltd
v
Construction, Forestry, Mining and Energy Union
(C2013/4052)

Coal industry
COMMISSIONER SPENCER	BRISBANE, 1 MAY 2013

Alleged unprotected industrial action by employees engaged at the Saraji Mine.

[1] This decision relates to an urgent application made pursuant to s.418 of the Fair Work Act 2009 (Cth) (the Act) that the Fair Work Commission (FWC/the Commission) issue an order that unprotected industrial action by employees at the Saraji Mine stop (the order). The application was made by BHP Coal Pty Ltd (BHP).

[2] The application was filed at approximately 7.30pm on Tuesday, 23 April 2013. A Hearing was convened at 8.30pm on that day.

[3] BHP sought that the Commission issue the order against employees of BHP who are members, or eligible to be members, of the Construction, Forestry, Mining and Energy Union (CFMEU/the Union) and against the Union.

[4] The following decision was issued on transcript:

“This decision is provided on an extempore basis and has been provided as expeditiously as possible. Accordingly I reserve the right to edit the decision. The decision relates to an application by BHP Coal Pty Ltd pursuant to section 418 of the Fair Work Act 2009, the Act, for a stop order to be directed to the CFMEU and employees of BHP who engaged in work covered by the BMA Enterprise Agreement 2012. That agreement is within its period of operation.

The section 418 application was received at approximately 7 pm by the Fair Work Commission. The application sought the urgent assistance of the Fair Work Commission in response to alleged industrial action occurring at the BHP Saraji Mine. An urgent hearing was convened at 8.30 pm yesterday. I accept service of the application was effected by service on the national and state union office as service of these matters is generally effected.

The stop order was sought on behalf of BHP in relation to an allegation that industrial action had commenced at the Saraji Mine site at approximately 6 pm last night, the commencement of the night shift at that time, between, I understand, some 80 to 100 employees approximately did not commence work and a number of employees were not able to commence work as the full complement of employees for the site safety crew did not attend due to this industrial action by some of the crew.

The background to the matter is that an incident was reported by an employee undertaking the SSHR statutory role. The alleged incident is to have occurred between the superintendent of safety and the SSHR. The SSHR later made a formal complaint to BHP and the employer has requested that that be provided in writing by 5 am today. The evidence was clear that, as Mr Humphreys stated, a substantial number of employees have taken unprotected industrial action by not reporting for work. As a result the respondent has lost the major part of production from tonight's night shift. There was no evidence to justify this withdrawal of labour was anything but unprotected industrial action.

The order was sought against the union and the employees as defined in the order. The evidential tests are not met in relation to an order being made against the union. I recognise the submissions of Mr Humphreys regarding what he termed as speculation in terms of the union's involvement. In short I refer to the references made to the union involvement at the Dysart meeting and entering the bus, and then the bus of employees turning from site, and a reference to an alleged text from the union, not cited, but referred to, but also references made to directions given by Mr Doevendans, but no direct evidence of such.

The issuing of section 418 orders is a serious matter with serious implications. Whilst in the time available I have not provided an exhaustive detailed analysis of the evidence, I do not consider that the evidence in relation to the union on the material before me, that the evidentiary tests have been met to issue an order against the union. However, the employees are deemed to have been engaging in and are currently engaging in, in terms of section 418, unprotected industrial action, and therefore the orders will issue in the terms sought against the employees defined.

I have amended the orders and I will have my associate provide copies of those particular orders in hard copy to the union and the employer. In terms of the parties bound, it will be all employees of BHP Coal who are members or eligible to be members of the CFMEU who are employed at the Saraji Mine, engaged in work covered by the BMA Enterprise Agreement and who are participating in or did participate in industrial action that commenced on or about 6 pm on 23 April. The order will come into effect at 2 am this morning.

The CFMEU have indicated that they could not guarantee being able to utilise procedures to effect service by telephone on employees. Accordingly, I think it is significantly important that if there are employees at the mine site, that they be returned to work to effect their labour on the night shift as soon as possible. Accordingly, to effect service, this is required by two means. The union has agreed it can convey the order to the relevant lodge officials by means of text, email and facsimile. I will require that to be done.

They have further indicated that they can effect by 8 am that the service can be conveyed to employees by text message. I will require that also. This is not exhaustive in terms of ensuring that employees are returned to work as soon as possible. Accordingly, in the circumstances of the lateness of the hour, it is necessary to also place service obligations on the employer to endeavour to capture those employees at the mine to return to the night shift, but to also ensure the day shift commences in full by 6 am. Accordingly I will provide those service obligations that the employer will be required to ensure there will be sufficient service of the order, that a copy of this order is placed on various noticeboards which may be real or electronic that are usually used by the company, and for the purpose of communicating with employees.

A copy of the order is also personally to be served and/or where the company has a mobile telephone number for an employee by sending the text message to that phone number with the following message that they are to return to work. The order will operate from 2 am this morning and will cease to be operative on 10 May at midnight. A listing for a report-back conference is made for 9 am on 3 May in relation to the outcome of the process if required. The listing will be effective and that process is relevant to the incident as set out. If this report-back conference is required at an earlier time, either party can apply for such to ensure that there is appropriate work and no further stoppage of work at the site.”

[5] An Order [PR535973] was issued immediately following the Hearing.

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