Boom Logistics Limited v Construction, Forestry, Maritime, Mining and Energy Union

[2018] FWC 6331

[2018] FWC 6331

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action

Boom Logistics Limited
v
Construction, Forestry, Maritime, Mining and Energy Union
(C2018/5680)

COMMISSIONER RIORDAN SYDNEY, 12 OCTOBER 2018

Alleged industrial action at Boom Logistics Limited.

[1] Boom Logistics Limited (the Applicant) made an application on 10 October 2018 for an order from the Fair Work Commission (the Commission), in accordance with section 418 of the Fair Work Act, 2009 (the Act), to stop members of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU – the Respondent) from taking industrial action commencing at 5am on 15 October 2018.

[2] This matter was heard concurrently with matter C2018/5679 WGC Crane Group v CFMMEU. Leave was granted in accordance with section 596 of the Act to allow Mr O. Fagir, of Counsel and Mr S. Forster from Minter Ellison to represent the Applicant and for Mr S. Crawshaw, Senior Counsel to represent the Respondent along with the Respondents Legal Officer, Ms S. Hayward.

[3] These parties have recent litigation history before the Commission in relation to the current enterprise agreement negotiations.

[4] On 6 September 2018, Deputy President Dean issued an Order 1 in accordance with section 418 of the Act determining that the intended industrial action would not be protected action. The CFMMEU appealed this decision. On 8 October 2018, a Full Bench of the Commission handed down its decision in relation to grounds 9 and 10 of the Appeal2. The remaining grounds of appeal are reserved and will be determined at a later date. I note that the grounds which the Full Bench has yet to determine include whether the CFMMEU was participating in pattern bargaining and whether the CFMMEU were generally trying to reach agreement.

[5] Witness Statements were attested by Mr Anthony Raby, the General Manager, NSW and Queensland of the Applicant and Ms Rita Mallia, State President of the CFMMEU Construction Division.

[6] Whilst all of the evidence that was presented before Her Honour has been incorporated into this matter via the statements of Mr Raby and Ms Mallia, it is not appropriate for the Commission, as presently constituted, to provide a determination on that evidence or an opinion on Her Honour’s decision. That task of review is the responsibility of the Full Bench.

[7] This decision relates to a different set of circumstances in relation to the conduct of the negotiating parties since 6 September 2018 as well as a different date for industrial action, namely, 15 October 2018. The Applicant claims that the Respondent is participating in pattern bargaining and not genuinely trying to reach an agreement. As a result, the Applicant has argued that the industrial action planned for 15 October 2018 cannot be classified as protected industrial action.

[8] I note that the CFMMEU was the sole bargaining representative of the employees.

[9] On 25 September 2018, Her Honour heard an application by the CFMMEU, which was lodged on 11 September 2018, for an extension of time to take protected industrial action under section 459 of the Act and an application for a revocation order (lodged on 14 September 2018) of her s.418 Order in accordance with section 603 of the Act. Her Honour granted a 30 day extension of time for the employees to take protected industrial action but stood over the section 603 application until the Full Bench had determined the remainder of the Appeal.

[10] The Applicant opposed this extension application, stating that the parties had not met for 6 weeks, despite the attempts by the Applicant to arrange a meeting. It would appear that after reading this submission, the Respondent sought a meeting with the Applicant. This meeting took place on 24 September 2018.

[11] On 21 September 2018, the State Secretary of the Respondent belatedly replied to the correspondence from the Applicant of 26 July 2018 setting out a detailed response and reasoning in relation to the matters in dispute.

[12] The bargaining meeting took place on 24 September 2018. On 4 October 2018, the Respondent sent correspondence to the Applicant requesting the Applicant to send through its proposed Agreement as discussed at the meeting on 24 September 2018.

[13] On 8 October 2018, a further email was sent to the Applicant requesting a response to the Respondent’s letter.

[14] On this same day, the Respondent sent a response stating he would respond on the following day.

[15] On 9 October 2018 at approximately 4.30pm, the Applicant emailed the Respondent at 4.30pm stating that the Respondent would soon receive the Applicant’s position.

[16] At approximately 4.50pm on the same date, the Respondent served the Applicant with a notice of intention to take protected industrial action.

[17] At approximately 7pm the Applicant sent their response to the Respondent, attaching draft proposed agreements, one for Newcastle and one for Singleton. I note that the Applicant was also keen to continue discussions for an East Coast Projects Agreement. The correspondence also proposes dates for a further meeting and went on to say:

“9 October 2018

…

This proposed meeting also provides an opportunity to discuss the other matters in your letter. Finally, we have enclosed with this letter a document responding to the matter raised your letter. The document is a word version of your letter with our responses set out in red text.

We look forward to you confirming your attendance at the meeting. Please contact me if you wish to discuss this letter.”

[18] I note that this correspondence from the Applicant does not mention the impending industrial action nor does it accuse the Respondent of not acting in good faith or displaying conduct which could be identified as refusing to bargain in good faith or not genuinely trying to reach agreement.

[19] The Respondent replied on 10 October 2018 and agreed to meet on 15 October 2018.

[20] I am satisfied that the interaction between the parties can be characterised as good faith bargaining. I am satisfied that there are now a significant number of differences between the proposed Boom Logistics Agreement and the WGC Agreement, as suggested by the Full Bench, which should dispel any argument that the Respondent is participating in pattern bargaining.

[21] I have taken into account all of the submissions and evidence that has been submitted by the parties. The hearing concluded at 7.30pm on Thursday 11 October 2018. The timetable of the Commission, as presently constituted, does not allow for the provision of detailed reasons in order to meet the statutory imposed deadlines and the urgent need of the parties due to the pending industrial action.

[22] The Respondent suggested that a brief decision be issued at first instance in order to satisfy these timeframe constraints, with detailed reasons to be provided at a later date. The Applicant did not cavil with this approach but indicated a preference for detailed reasons at first instance.

Conclusion

[23] I am satisfied and find that the industrial action to be undertaken on 15 October 2018 is protected industrial action. I am satisfied that the Respondent has followed the propositions as identified by the Full Bench.

[24] The taking of protected industrial action is a legitimate and prescribed form of pressure which can be exercised by all parties during the bargaining process. The Applicants are well within their rights to respond to any action in a manner in accordance with the Act. It is very common for protected industrial action from either side to focus the attention of the bargaining representatives.

[25] I find that the Respondent is not participating in pattern bargaining.

[26] I find that the Respondent is genuinely trying to reach agreement with the Applicant.

[27] The Application is dismissed.

COMMISSIONER

Appearances:

O Fagir of Counsel with S Forster for WGC Crane Group Pty Ltd.

S Crawshaw SC with S Hayward for the Construction, Forestry, Maritime, Mining and Energy Union.

Hearing details:

2018.

Sydney:

October 11.

Printed by authority of the Commonwealth Government Printer

<PR701259>

 1   [2018] FWC 5634

 2   [2018] FWCFB 6200