Bilfinger Berger Services (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union and “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian..
[2010] FWA 756
•3 February 2010
[2010] FWA 756 |
|
DECISION AND RECOMMENDATION |
Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.
v
Construction, Forestry, Mining and Energy Union
and
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2010/2654)
SENIOR DEPUTY PRESIDENT WATSON | MELBOURNE, 3 FEBRUARY 2010 |
Application to stop/prevent industrial action.
The following decision and recommendation, now edited, were given at the conclusion of proceedings on 3 February 2010:
[1] This is an application by Bilfinger Berger Services (Australia) Pty Ltd (BBSA) for the making of an order pursuant to s.418 of the Fair Work Act 2009, that industrial action by employees of it at the Sugar Australia Pty Ltd (Sugar Australia) site be stopped - or, more correctly, given there is no current industrial action, that industrial action not occur.
[2] The terms of the order sought are directed at the employees engaged by BBSA on the Sugar Australia site in Yarraville and each of three unions, 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).
[3] The application has been subject to earlier proceedings and possibly an interim order and requires the determination either by an immediate interim order or by a final order at this point.
[4] Having regard to the evidence, I am satisfied that industrial action by the employees of BBSA at the Sugar Australia site, and the union delegates who are employees, has occurred. In reaching that finding the evidence clearly establishes in my mind that such industrial action did occur on Friday, 29 January, and Saturday, 30 January 2010; and, in respect of a small group of employees for whom overtime was scheduled, on Sunday, 31 January 2010.
[5] BBSA also argued that industrial action occurred on Tuesday, 2 February 2010. In relation to that, it is arguable that some at least of the stoppage of work was not industrial action, having regard to the exception in the definition in s.19 of the Act concerning a reasonably based concern about imminent risk to health or safety, given the evidence that Mr Karatzis had not complied with established site occupational health and safety protocol when entering the site on at least one occasion on that day. It is not necessary to finally determine that issue in light of my satisfaction that industrial action earlier occurred.
[6] Given the circumstances at the site and in light of the industrial action which has occurred, I am satisfied that further industrial action by the employees and delegates is probable and that an order should be made in respect of them. I am not satisfied that the order should be made against the CFMEU, AMWU and CEPU. The only evidence before me in relation to the unions and their organisers in particular goes to the events of Monday, 1 February 2010, when, on the evidence, the union organisers brought about a cessation of industrial action then occurring and recommended that course and initiated a process directed to preventing further industrial action.
[7] Notwithstanding the submissions of Mr Borenstein, supported by each of the other unions, I intend to make a final order rather than an interim order. Further, notwithstanding the submission of Mr Borenstein, I do not intend to make an order directed to Mr Karatzis in respect of any action which might incite industrial action, in the absence of an opportunity for Mr Karatzis to be heard in relation to such an addition to the order. Any order applying to Mr Karatzis should only be considered upon application by the unions, or one of them, and obviously properly service upon Mr Karatzis.
[8] I will amend the draft order sought to delete reference to the unions, to retain the reference to the delegates of the unions employed by BBSA and the employees of BBSA at the Sugar Australia site. Clause 3 will be amended accordingly, clause 4 will be deleted and the service requirements will be amended to require service upon the employees and the delegates amongst them by way of posting of the order on the noticeboards and other on-site areas. The duration of the order as now sought by BBSA will be for a period of two weeks.
[9] In the course of the hearing I have heard evidence as to some of the background to the industrial action now subject to the order and in light of that I wish to make some observations and recommendations to the parties, including Sugar Australia.
[10] It is clear from the evidence that BBSA and the unions agreed to processes to address a dispute arising initially in respect of Mr Dalziel. In order to facilitate those processes and for the duration of those processes, I further recommend that attendance on site by Sugar Australia representatives be in accordance with BBSA site occupational health and safety protocol as it applies to site visitors. Second, I recommend that Sugar Australia representatives, if attending site, not communicate directly with any employee. If they have any issues concerning management of the employees or the work on site they should raise those with the BBSA project manager or, in his absence, the most senior BBSA manager on site.
[11] Further, I recommend that if any employee has a concern about any breach of BBSA site occupational health and safety protocol, that unless there is an imminent and direct threat to health and safety, they should continue work and report any breach of site occupational health and safety protocol to the BBSA project manager or, in his absence, the most senior BBSA management representative on site and members of the occupational health and safety committee. For clarification, I make it clear that the presence on site of a Sugar Australia representative in compliance with health and safety protocol would not constitute an immediate and direct threat to health and safety of employees. Further, attendance by a Sugar Australia representative not in compliance with the protocol would not in itself constitute an immediate and direct threat to health and safety. Given my recommendation that Sugar Australia representatives comply with the protocol, I would not expect the second circumstance to arise in any case.
[12] I will make one further recommendation aimed at making the order to be made effective in the absence of the order binding the unions and the absence of the other directions in clause 5 of the order. I instead recommend that the CFMEU, CEPU and AMWU take all reasonable steps under their rules to attempt to bring the existence of the order and these recommendations to the attention of the employees and their delegates at BBSA at the Yarraville site.
SENIOR DEPUTY PRESIDENT
Appearances:
H Skene for Bilfinger Berger Services (Australia) Pty Ltd.
J Wieladek and later B Annson for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).
P Larkins and later G Borenstein for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.
B Annson and later E Walters for the Construction, Forestry, Mining and Energy Union.
Hearing details:
2010.
Melbourne:
January 31;
February 3.
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