Boeing Aerostructures Australia Pty Ltd T/A Boeing Aerostructures Australia (BAA) v Professionals Australia & “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian...

[2018] FWC 2246

[2018] FWC 2246

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action

Boeing Aerostructures Australia Pty Ltd T/A Boeing Aerostructures Australia (BAA)
v
Professionals Australia & “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
(C2018/2048)

DEPUTY PRESIDENT MASSON MELBOURNE, 24 APRIL 2018

Alleged industrial action at Boeing Aerostructures Australia (BAA) – order to stop industrial action made under s418

Introduction

[1] An application was made by Boeing Aerostructures Australia T/A Boeing Aerostructures Australia (BAA) on Wednesday 18 April 2018 under s 418 of the Fair Work Act 2009 (the Act). The application sought an order from the Fair Work Commission (the Commission) that unprotected industrial action not occur. The proposed order was directed at Professionals Australia, its officers, employees, agents and delegates; the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU), its officers, employees, agents and delegates; and employees of BAA who are members of Professionals Australia or the AMWU and who are currently covered by the Boeing Aerostructures Australia Pty Ltd (Port Melbourne) Enterprise Agreement 2014 (the Agreement).

[2] The two forms of alleged industrial action can be summarised as firstly, a ban on the movement of assembly jig/fixtures (assembly jigs) and secondly, a threatened walkout, both of which forms of industrial action were alleged to commence on 19 April 2018.

[3] The matter was listed for hearing at 16.00 on Wednesday, 18 April 2018. The Company was represented, with the Commission’s permission under s 596 of the Act, by Mr Follet of Counsel instructed by Corrs Chambers Westgarth. The AMWU was represented with the Commission’s permission under s 596 of the Act by Mr Pill of Slater and Gordon.

[4] Prior to the hearing, Professionals Australia wrote to the Commission to advise that its members were neither proposing on intending to engage in the alleged industrial action. In response BAA sought, at the commencement of the hearing, to modify the scope of the proposed order by removing Professionals Australia, its officers, employees, agents and delegates.

[5] The AMWU also advised at the commencement of the hearing that the threat of a walkout was mistakenly made and was wholly retracted, written advice of which was given to AMWU members with a copy provided to BAA. BAA accepted the AMWU confirmation of the withdrawal of the threatened walkout. BAA then sought to further modify the scope of its draft order confining it to the AMWU, its officers, employees, agents and delegates and employees of BAA who are members of the AMWU and who are currently covered by the Agreement.

[6] On the evening of 18 April 2018, after considering the evidence and the submissions of the parties, I made an order under s 418 (1) of the Act that unprotected industrial action not occur (Order). 1 I indicated to the parties that I would provide written reasons for making the Order in due course. This decision sets out those reasons.

Background

[7] Employees at the site are covered by the Boeing Aerostructures Australia Pty Ltd (Port Melbourne) Enterprise Agreement 2014 which has a nominal expiry date of 2 April 2018. BAA commenced bargaining for a new agreement with the AMWU and Professionals Australia on 9 October 2017.

[8] On 15 February 2018, the AMWU filed an application for a protected ballot order in the following terms:

In support of reaching an enterprise agreement with Boeing Aerostructures Australia Pty Limited, do you authorise protected industrial action against your employer separately or concurrently and/or consecutively, in the form of:

1. An unlimited number of stoppages of work for the duration of 1 hour?

2. An unlimited number of stoppages of work for the duration of 4 hours?

3. An unlimited number of stoppages of work for the duration of 8 hours?

4. An unlimited number of strikes for the duration of 24 hours?

5. An unlimited number of indefinite strikes?

6. An unlimited number of indefinite or periodic bans on overtime?

7. An unlimited number of indefinite or periodic bans on call backs?

8. An unlimited number of indefinite or periodic bans on the use of all forklifts, cranes and/or lifting devices?

9. An unlimited number of indefinite or periodic bans on completing the following paperwork (paper or electronic):

(a) Type design data authorisations completed by Engineering;

(b) Authorisations completed by the Materials & Processing Team; and/or

(c) Authorisations and non-conformance records completed by the Quality Assurance team, but not production inspections or D stamp approvals.

[9] On 20 February 2018, the Commission issued a protected ballot order (PABO) in the terms sought by the AMWU. Voting on the AMWU PABO closed and a result was declared on 22 March 2018 approving the AMWU PABO in the terms sought.

[10] On Tuesday 10 April 2018, the AMWU served BAA with a notice of intention that it (the AMWU), its officers, its employees and members employed by BAA would take employee claim action (AMWU First Notice) 2 which included, in part, the following forms of industrial action:

“……

7. A 4 hour ban on the use of all forklifts, cranes and lifting devices over the last four hours of day work on Thursday, 19 April 2018.

8. A 4 hour ban on the use of all forklifts, cranes and lifting devices over the last four hours of each shift that commences on Thursday, 19 April 2018.

………”

[11] On 18 April 2018, the AMWU served BAA with a notice of intention that it (the AMWU), its officers, its employees and members employed by BAA would take employee claim action (AMWU Second Notice) 3 which included, in part, the following forms of industrial action:

“…….

6. A 4 hour ban on the use of all forklifts, cranes and lifting devices over the last four hours of day work on Tuesday, 24 April 2018.

7. A 4 hour ban on the use of all forklifts, cranes and lifting devices over the last four hours of night shifts, that commence on Monday, 23 April 2019.

8. A 4 hour ban on the use of all forklifts, cranes and lifting devices over the last 4 hours of shifts other than nights shifts, that commence on Tuesday, 24 April 2018.

……”

[12] It was not contested that BAA received advice from AMWU delegate, Mr Glen Rowland on 12 April 2018 that the bans on the use of “lifting devices” referred to in the AMWU First Notice would include a ban on the movement of assembly jigs. 4 Nor was it contested that at a further meeting on 17 April 2018, BAA representatives met with AMWU site delegates, Mr Gualano and Mr Sciberras, who confirmed the AMWU’s position that the ban on “lifting devices” covered a ban the movement of assembly jigs.5

[13] BAA did not accept that assembly jigs were “lifting devices” for the purpose of the notified industrial action and subsequently filed an application on Wednesday, 18 April 2018 under s 418 of the Act.

Statutory Framework

[14] Section 418(1) of the Act provides as follows:

“418 FWC must order that industrial action by employees or employers stop etc.

(1)If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:

(a) is happening; or

(b) is threatened, impending or probable; or

(c) is being organised;

the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.”

[15] Section 409 of the Act, dealing with ‘employee claim action’ is also relevant in this case. It is expressed as follows:

‘409 Employee claim action

Employee claim action
(1) Employee claim action for a proposed enterprise agreement is industrial action that:

(a) is organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement that are only about, or are reasonably believed to only be about, permitted matters; and

(b) is organised or engaged in, against an employer that will be covered by the agreement, by:

(i) a bargaining representative of an employee who will be covered by the agreement; or

(ii) an employee who is included in a group or groups of employees specified in a protected action ballot order for the industrial action; and

(c) meets the common requirements set out in Subdivision B; and

(d) meets the additional requirements set out in this section.

Protected action ballot is necessary
(2) The industrial action must be authorised by a protected action ballot (see Division 8 of this Part).

Unlawful terms
(3) The industrial action must not be in support of, or to advance, claims to include unlawful terms in the agreement.

Industrial action must not be part of pattern bargaining
(4) A bargaining representative of an employee who will be covered by the agreement must not be engaging in pattern bargaining in relation to the agreement.

Industrial action must not relate to a demarcation dispute etc.
(5) The industrial action must not, if it is being organised or engaged in by a bargaining representative, relate to a significant extent to a demarcation dispute or contravene an FWC order that relates to a significant extent to a demarcation dispute.

Notice requirements after suspension order must be met
(6) If section 429 (which deals with employee claim action without a further protected action ballot after a period of suspension) applies in relation to the industrial action, the notice requirements of section 430 must be met.

Officer of an employee organisation
(7) If an employee organisation is a bargaining representative of an employee who will be covered by the agreement, the reference to a bargaining representative of the employee in subparagraph (1)(b)(i) of this section includes a reference to an officer of the organisation.’

[16] Section 414(6) of the Act is also relevant in this case as it deals with the notice requirements and content of a notice of employee or employer claim action and relevantly provides as follows:

“Notice requirements

(6) A notice given under this section must specify the nature of the action and the day on which it will start.”

BAA evidence and submission

[17] Mr Michael Sorrenson, BAA’s Director of Supply Chain Management and Operations, described the purpose and operation of the assembly jigs/fixtures used in the manufacturing process at BAA’s Melbourne operations. The following description of the equipment was provided:

“20. An assembly jig/fixture may allow a range of motion of a part. There are three models of assembly jig/fixture used in the Applicant’s manufacturing process. One model is fixed (non-movable) and two are movable. The movable jigs are able to be manually pushed (pulsed) from one work area to the next (within approximately 10 m of each other) to allow for high rate “pulse production.” The model used in 787 production is on wheels while the model used in 737 production uses a temporary cushion of air by a connected hose (like a hovercraft) to allow it to be pushed without wheels. However, this does not detract from the primary purpose of the jig being to hold a part in a desired position. Its purpose is not to lift the part. Parts used in production are manually lifted onto each assembly jig/fixture and lifting devices may be used to offload an assembled part from an assembly jig/fixture.” 6

[18] Mr Sorrenson gave evidence that, in the case of the 787 assembly jigs, the wheels operated by extending under pneumatic pressure to elevate the jig approximately one to two centimetres off the ground. This had the effect of taking the approximately 4000 kg weight of the assembly jig off its fixed spigots and to allow movement of the assembly jig to the next manufacturing station when “pulsed”. The movement or “pulse” of the assembly jig was achieved by connection of the assembly jig to a manual tow motor. 7 When the assembly jig was correctly positioned at its next station, the wheels would retract and lower the assembly jig back down onto the fixed spigots which would then take the weight of the assembly jig.

[19] Mr Sorrenson gave further evidence that, in the case of the 737 assembly jigs, the weight of the assembly jig was taken off the fixed spigots by the application of air pressure through connection of an air hose to the assembly jig which, when operated, produced an air cushion below the jig which had the effect of lifting it off the ground by approximately one to two centimetres. This allowed movement of the jig to the next station when “pulsed”. In the case of the 737 assembly jig, a tow motor was not required to be used and could be manually moved by technicians when “pulsed”. When the 737 assembly jig was located at the next manufacturing position, the air would be released which would result in the assembly jig lowering back onto the fixed spigots.

[20] Mr Sorrenson stated that the term “lifting devices” had a unique and accepted meaning within BAA’s operations and that assembly jigs were not known as, referred to or managed as “lifting devices” within BAA’s operations. The fact the assembly jigs had an integrated mechanism allowing them to be elevated off the ground by one to two centimetres to enable their movement did not in BAA management’s view give the assembly jigs or component mechanisms the character of a “lifting device”. In support of his evidence, Mr Sorrenson referred to BAA’s Environment Health and Safety Management System procedure, the IS984B.1 Plant and Equipment Procedure (the Procedure). 8 Lifting Equipment was defined in the Procedure as follows:

“Lifting Equipment: Includes but is not limited to work boxes, chains, slings, shackles, and other associated equipment used in the lifting process.”

[21] Mr Sorrenson also referred to BAA’s Environment Health and Safety Management System process IS948B 1.4 Cranes and Lifting Devices (the Process) 9 which sets out the processes for the safe use, maintenance, inspection and testing of lifting equipment. Mr Sorrenson stated that assembly jigs were not referred to in the Process and were not subject to the detailed safety procedures required to be utilised under the Process with respect to lifting equipment.

[22] Mr Sorrenson stated that relevantly, assembly jigs were not required to be certified under OH&S legislation, were not subject to required periodic inspection, were not listed on BAA’s register of lifting devices, were not third party certified and were not required to be stamped or tagged with a safe working load (SWL) under the Process. Mr Sorrenson sought to further highlight the distinction between the assembly jigs and lifting devices by reference to BAA’s procedure for operation of assembly jigs. 10

[23] Mr Sorrenson stated that when BAA received the AMWU First Notice it began contingency planning for the ban on “forklifts, cranes and lifting devices”. While the contingency planning contemplated a range of equipment, BAA did not contemplate a ban on the movement of the assembly jigs being included.

[24] BAA submitted that there was no question that the threatened ban was industrial action and that the matter to be determined by the Commission was whether the action was properly notified pursuant to s. 414(6) of the Act.

[25] BAA submitted that in order for the industrial action to have been authorised by a valid notice under s 414(6) of the Act it was necessary to establish whether assembly jigs were “lifting devices”. To answer this question required a two-step process that being to determine whether an assembly jig was itself a lifting device or whether a component of the assembly jig was a lifting device.

[26] BAA submitted that in providing the notice of industrial action, it was not sufficient for the AMWU as the giver of the notice to have understood what was intended by the notice. The proper test in determining whether the specificity of the “nature” of the action notified by the AMWU satisfied the requirement under s 414(6) of the Act was, according to BAA, what the recipient of the notice (BAA in this case) would have reasonably understood the industrial action that was intended to be. BAA relied on recent authority in Esso Australia Pty Ltd v Australian Workers’ Union (AWU) (Esso). 11

[27] Relying on Jessup J’s reasoning in the Esso BAA submitted that its management could not have reasonably understood the AMWU First Notice as extending to and including a ban on the movement of assembly jigs under the term “lifting device”. BAA submitted that this was strongly reinforced by the evidence of Mr Sorrenson on the particular use and meaning of the term “lifting device” within BAA’s operations, BAA’s OH&S system documentation and the risk mitigation analysis undertaken by BAA following the service of the AMWU First Notice.

AMWU evidence and submissions

[28] Evidence was given by AMWU delegates employed by BAA, being Mr Glen Rowland and Mr Joseph Sciberras.

[29] Mr Rowland stated that he worked in the 737 line area and confirmed that “pulsing” of assembly jigs occurred on average three times per day and that the activation of the air cushion in the case of the 737 assembly jig required the operation of up and down buttons on a panel following the connection of an air hose to the assembly jig.

[30] Mr Rowland gave further evidence that when “pulsing” of an assembly jig was required, a number of technicians (approximately 5-6) were available to support the movement of the jig and that the terminology used by the technicians to co-ordinate the “pulse” was that of “ready to pulse”.

[31] Mr Rowland was taken to a document tendered by the AMWU titled “Operating & Maintenance Instructions Rigging Systems using AeroGo Load Modules”. 12 He stated that it was a technical manual for the air pad devices attached to the base of the 737 assembly jig that enabled it to elevate. Under cross examination, Mr Rowland conceded that he had only become aware of the document in the past two weeks, had printed it off after finding it on the internet and that it (the manual) was not used within BAA’s Melbourne operations.

[32] Mr Sciberras confirmed that he had previous experience in the 787 line while not currently working there. He confirmed Mr Sorrenson’s evidence regarding the operation and movement of the 737 assembly jig and specifically referred to the up/down buttons on the control panel required for the raising and lowering of the wheels on the base of the assembly jig.

[33] The AMWU advised that it accepted that if the Commission were to find that the industrial action proposed to be taken was not properly notified pursuant to s 414(6) of the Act, then the action would not be lawful. It was however the AMWU’s contention that the notice provided to BAA on 10 April 2018 sufficiently described the “nature” of the action and was therefore properly notified.

[34] The AMWU further submitted that it accepted BAA’s summary of the Esso judgement and that the relevant test in determining whether the industrial action was properly notified was not whether “nature” of the industrial action notified pursuant to s. 414(6) was understood by the AMWU but whether BAA ought to have reasonably understood the “nature” of the industrial action notified.

[35] It was the AMWU’s submission that the componentry attached to the assembly jigs that enabled the assembly jigs to elevate – that being the wheels in the case of the 787 assembly jigs and the air cushioning device on the 737 assembly jigs – should be regarded as as lifting devices due to their function.

[36] The AMWU contended that if BAA had reasonably considered the full componentry of the assembly jig and considered the clear language of the AMWU First Notice in which it referred to “lifting devices”, then there was no escape in its submission from the inference that the devices fitted to the assembly jigs that enabled them to elevate were “lifting devices”. The fact that BAA may not have turned its mind to the componentry of the assembly jigs was not a matter that should limit the AMWU and its members from taking the notified industrial action.

[37] The AMWU further submitted that BAA had failed to contemplate the full scope of devices that effect lifting and that sufficient notice had been provided to BAA to take appropriate defensive action

Relevant judgements and decisions

[38] The type of action which is foreshadowed in the s 414 notices sent to BAA by the AMWU, in their capacity as bargaining representatives for their members, is described as “employee claim action”. Section 409 of the Act requires that such action must meet the common requirements set out in Subdivision B of Division 2 of Part 3-3 of the Act. One such requirement is that a written notice is to be provided to an employer, which notice must comply with s 414 of the Act. Pursuant to s. 414(6) the notice must in part specify the “nature” of the action to be taken.

[39] The construction of s 414(6) has been considered in a number of judgements and decisions. The first is Davids Distribution Pty Ltd v National Union of Workers (Davids Distribution). 13 That judgement concerned an appeal in Federal Court proceedings related to an application which had been made by the union under the then s 170MU of the Workplace Relations Act 1996 (WR Act) asserting the employer had dismissed employees wholly or partly because they were engaged in protected action. The Full Court found that picketing was not industrial action. While not required to determine the issue about whether the relevant notice was in terms which made it effective to attract the immunity for protected action provided by the WR Act, the Full Court decided to consider that matter commenting that the issue was of general importance and had been fully argued before it. In dealing with that matter, the Full Court said:

“[84] The question addressed by North J in the lengthy passage just quoted is one of considerable difficulty, about which people may reasonably reach different conclusions. Parliament did not indicate what degree of specificity it intended by the term “nature of the intended action”. To interpret this term, on the one extreme, as requiring no more than an indication of industrial action, as argued by NUW, would be significantly to devalue s170MO(5); the notice would provide little information. To interpret it, on the other extreme, as requiring precise details of every future act or omission would be to impose on the giver of a notice an obligation almost impossible to fulfil. Industrial disputes are dynamic affairs. Decisions as to future steps often need to be made at short notice, sometimes in response to actions of the opposing party or other people, including governments, and changing circumstances. It would be a major, and unrealistic, constraint on industrial action to require a party to specify, three clear working days in advance, exactly what steps it would take. An unduly demanding interpretation of s170MO(5) would seriously compromise the scheme of Division 8 of Part VIB of the Act; it would be difficult for a party to an industrial dispute to obtain the protection contemplated by the Division.

.....

[86] Another reason for rejecting North J’s approach is that it places a premium on legalism. Framers of notices would need to undertake a careful analysis of the definition of “industrial action”, in the way North J did, in order to identify the paragraph which best fits the contemplated activity. Bearing in mind that notices will often, perhaps ordinarily, be prepared by non-lawyers acting without legal advice, it is unlikely Parliament intended that result.

[87] We think s170MO(5) was designed to ensure that industrial disputants who are to become affected by protected action, in relation to which their usual legal rights are significantly diminished, are at least able to take appropriate defensive action. For example, an employer may operate a sophisticated item of equipment that will be damaged if precipitately shut down. If warned in advance of a ban that might affect the continued operation of that plant, the employer might choose a controlled shut down during the period of the notice. More commonly, perhaps, an employer might use the notice time to communicate with suppliers and customers, and thereby reduce the consequences for them of the notified industrial action. Very often, the recipient of the notice will respond in a way that has a legal dimension. For example, a union might react to a notice by an employer of intent to lockout some employees by giving notice that all employees will strike indefinitely as from the commencement of the lockout. Similarly, an employer might respond to an employees' notice of bans by giving notice of a lockout of some or all employees.

[88] It will be apparent we think it necessary, and sufficient, for parties to describe the intended action in ordinary industrial English; for example, “an indefinite strike of all employees”, “a lockout of all employees employed in the AB fabrication plant”, “a ban on overtime”, “a ban of the use of MN equipment”, “rolling stoppages throughout the mine”, “a ban on the servicing of delivery vehicles.”

[40] Davids Distribution was considered and applied by a Full Bench of Fair Work Australia in Telstra Corporation Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Telstra). 14 The Full Bench said:

“[12] Before turning to the notice in this case it is appropriate to make some observations about the construction of s.414. The first point to note is that the obligations in ss.414(1) and (6) are not cast in terms of an intention to take industrial action but in more positive terms. This is a point of contrast with the language of s.170MO of the WR Act, exemplified by s.170MO(5) which we have set out above. The second point is that in considering whether the notice meets the requirement to specify the industrial action, it is necessary to have regard to the purpose of the notice requirement and the relevant circumstances, in particular the nature of the employer’s undertaking. As to purpose, there is little doubt that the purpose of the notice requirement is to give the employer the opportunity to respond to the action by making relevant preparations. The response may involve making arrangements to deal with unavailability of labour, including making appropriate arrangements in relation to customers, suppliers and other contractors. Whether the notice is adequate may depend on the nature of the employer’s operations including their size, the number of employees, the number of locations, the time at which the action is to occur and the employees potentially taking the industrial action. The following passage from the reasons for decision in Davis Distribution, a case concerned with the interpretation of s.170MO(5), is apposite:

[87] We think s 170MO(5) was designed to ensure that industrial disputants who are to become affected by protected action, in relation to which their usual legal rights are significantly diminished, are at least able to take appropriate defensive action. For example, an employer may operate a sophisticated item of equipment that will be damaged if precipitately shutdown. If warned in advance of a ban that might affect the continued operation of that plant, the employer might choose a controlled shutdown during the period of the notice. More commonly, perhaps, an employer might use the notice time to communicate with suppliers and customers, and thereby reduce the consequences for them of the notified industrial action. Very often, the recipient of the notice will respond in a way that has a legal dimension. For example, a union might react to a notice by an employer of intent to lock out some employees by giving notice that all employees will strike indefinitely as from the commencement of the lockout. Similarly, an employer might respond to an employees' notice of bans by giving notice of a lockout of some or all employees.”

[41] A more recent Federal Court case that dealt with the construction of s 414 (6) is that of the Esso case. In that case Jessop J, when dealing with the scope of a notice provided by the AWU to Esso Australia Pty Ltd pursuant to s 414 of the Act, relevantly stated as follows:

“[86] The task for the court is not the conventional one of the construction of a document, with a view to understanding what the author intended. The document with which we are concerned here was a notice: its purpose was to convey information. Thus the question is not what the author intended, but what the addressee would reasonably have understood from the terms used in the notice. Two things follow from this. First, if the notice might reasonably carry more than one denotation, I see no reason to err on the side of the giver of the notice, thereby permitting him or her to take advantage of his or her own ambiguity. The FW Act leaves it entirely to the giver of the notice to identify the “nature” of the action intended to be taken, and it should not be open to him or her to complain if the terms chosen leave scope for the addressee to see things differently from what the giver, subjectively, might have had in mind. Secondly, it would not be sufficient for the respondent to establish what its own members understood by the presently contentious expression. Even if they knew what they meant by “de-isolation of equipment”, the question is what the applicant’s management would reasonably have understood by that expression.

[87] Although I have noted above that the judgment of Wilcox and Cooper JJ in Davids Distribution does not directly provide the answer to the present question, one aspect of that judgment which is here valuable is the identification of the purpose of a notice of industrial action given under the predecessor to s 414 of the FW Act. Their Honours saw the purpose as enabling the party who would be adversely affected by the intended action to take appropriate defensive action. Their Honours recognised the importance of a defending employer, for example, having the opportunity to protect sophisticated equipment from damage. In my view, it is no less important for the affected party to know what functions, operations, etc will not be touched by the intended action. To take an example far from the facts of the present case, an employer handling perishable foodstuffs should be entitled to assume, with confidence, that its operations will not be affected beyond those notified to it under s 414 of the FW Act. Understood in this sense, the notification of industrial action has a negative, as well as a positive, dimension, each of which may be perceived as within the broad purpose of the statute.

……….”

[42] Having regard to the line of authority, I am satisfied that in the present matter, while a high degree of precision is not necessarily required in specifying the “nature” of the industrial action, the relevant test to be met in line with the Esso authority, is whether the notified action ought to have been reasonably understood by BAA.

Consideration

[43] There was no contest or evidence adduced that challenged the validity of the AMWU First Notice save for BAA’s contention that the ban on the use of “lifting devices” referenced in the notice did not allow the AMWU to rely on that notified action in banning movement of assembly jigs.

[44] The specific question to be determined by the Commission is whether the notified ban on the “use of all forklifts, cranes and lifting devices” in the AMWU First Notice specified the “nature” of the industrial action in terms that BAA would have reasonably understood to cover the ban on the movement of the assembly jigs.

[45] If the Commission were satisfied that the assembly jigs or particular componentry of the assembly jigs ought to have been reasonably understood by BAA as falling within the “nature” of the industrial action referred to in the notice as “lifting devices”, then it would follow that the AMWU had satisfied the notice requirements of s 414(6) of the Act.

[46] I turn first to consider whether assembly jigs ought to have been reasonably regarded and understood by BAA management as “lifting devices” for the purpose of the AMWU’s notified action.

[47] I am satisfied on the evidence of BAA, which was not contradicted by the AMWU, that the assembly jigs’ purpose is that of holding equipment during the fabrication/manufacturing process. The evidence revealed that an assembly jig has no moving parts aside from the elevation mechanisms of the wheels on the 787 assembly jigs and air cushioning devices on the 737 assembly jigs and is not subject to the detailed safety procedures required to be utilised under the Process with respect to lifting equipment.

[48] I am further satisfied on the evidence of Mr Sorrenson which was not contradicted by the AMWU, that the term “lifting device” has a unique and accepted meaning attributed to it by BAA management. This position was strongly supported by references within BAA’s OH&S system documentation, specifically the Procedure and Process documentation that details the processes for the safe use, maintenance, inspection and testing of lifting equipment.

[49] It is evident and I am satisfied that the purpose and nature of assembly jigs within BAA’s operations are quite different to that of “lifting devices” which are referred to within the Procedure as “lifting equipment” and are defined as including but not limited to “work boxes, chains, slings, shackles, and other associated equipment used in the lifting process.” 15 While the definition of “lifting equipment” is not defined in exhaustive terms, it is clear enough that the types of equipment defined are wholly different in character to that of an assembly jig. The 737 and 787 assembly jigs, while capable of movement, have the primary purpose of holding machinery and equipment in a stationary position during each stage of the fabrication/manufacturing process. By contrast “lifting devices” can be characterised as standalone pieces of equipment or devices, the specific purpose of which is for use in the lifting and transfer of loads of equipment and materials within the factory.

[50] I turn now to consider whether the specific componentry used to elevate the assembly jigs, that is the retractable wheels and air cushioning equipment, ought to have been reasonably regarded by BAA management as falling within the category of “lifting devices” referenced in the AMWU First Notice.

[51] The AMWU sought to characterise the retractable wheels and air cushioning equipment on the assembly jigs as componentry distinct from the assembly jig and therefore capable of falling into the category of a “lifting device” covered by its notice. Some reliance was placed by the AMWU on Exhibit R2 although it was clear that the particular manual which dealt with air cushioning equipment of the type used by BAA was not referred to or used by BAA in its Melbourne operations. I place no weight on that manual given it is not referred to or used within BAA’s Melbourne operations.

[52] In the absence of evidence as to the specific nature of the design and level of integration of the wheels or air cushioning componentry into the assembly jigs I am not satisfied that the componentry should be treated as separate or distinct equipment as contended by the AMWU simply because of its particular functionality. Furthermore, even if evidence had been adduced that allowed a conclusion on the treatment of the componentry as separate and distinct from the assembly jig, it would still be necessary for me to determine whether such componentry ought to have been reasonably understood by BAA management as falling within the category of “lifting devices”. Having regard to the particular meaning given to that term within BAA’s operations, of which I have made earlier findings, I am not persuaded that even were the componentry regarded as separate and distinct, that it ought to have been reasonably regarded by BAA management as falling within the term “lifting devices”.

[53] For the reasons outlined above, I am not satisfied that BAA management ought to have reasonably understood the AMWU First Notice, which referred in part to a ban on the use of “lifting devices”, as extending to and covering a ban on the movement of assembly jigs.

Conclusion and Order

[54] It follows from my findings above that the AMWU’s planned industrial action of a ban on the movement of assembly jigs failed to satisfy the notice requirements of s 414(6) of the Act and as such is unprotected industrial action.

[55] I am also satisfied that the industrial action involved one or more of BAA’s employees and was threatened and impending, with a notified commencement date of 19 April 2018.

[56] Having reached the requisite satisfaction regarding the necessary pre-conditions, I consequently issued orders under s 418 to halt the industrial action that was not protected.

[57] I determined that the scope of the Order should be confined to the particular unprotected industrial action that was threatened and impending and that a period of ten days was appropriate having regard to the period of operation of the AMWU First Notice and the AMWU Second Notice. The Order came into effect at 11.00 pm on 18 April 2018 and will remain inforce until 11.00 am on 28 April 2018.

DEPUTY PRESIDENT

Appearances:

Mr M Follett for the Applicant.

Mr H Pill for the Respondent.

Hearing details:

Melbourne.

2018

18 April.

 1   PR602116.

 2 Exhibit A1, Witness Statement of Mr. Michael Sorrensen, dated 18 April 2018, Paragraph [14].

 3   Exhibit A2.

 4 Exhibit A1, Paragraph [16].

 5 Ibid, Paragraph [14].

 6 Ibid Paragraph [20].

 7   Exhibit A3.

 8   Exhibit A1, Annexure B.

 9   Ibid, Annexure C.

 10   Ibid, Annexure D.

 11 [2015] FCA 758.

 12   Exhibit R2.

 13 [1999] 165 ALR 550.

 14   [2009] FWAFB 1698.

 15   Exhibit A1, Annexure B, Paragraph 2.0.

Printed by authority of the Commonwealth Government Printer

<PR602139>