Boral CSR Bricks Pty Ltd v Construction, Forestry, Mining and Energy Union & “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union...

[2015] FWC 6050

[2015] FWC 6050

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.418—Industrial action

Boral CSR Bricks Pty Ltd
v
Construction, Forestry, Mining and Energy Union
&
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)-Victorian Branch
(C2015/5651)

COMMISSIONER LEWIN MELBOURNE, 2 SEPTEMBER 2015

Alleged unprotected industrial action at Boral CSR Bricks Pty Ltd - Thomastown site in Victoria – meaning of probable unprotected industrial action – undertakings – enterprise agreement dispute settlement procedure – no unprotected industrial action happening, threatened, impending, probable or being organised – no jurisdiction to make order.

Background

[1] The purpose of this decision is to give reasons for the Fair Work Commission’s ex tempore decision (the decision) declining to make an order to stop allegedly probable unprotected industrial action sought by Boral CSR Bricks Pty Ltd (Boral CSR), in relation to organisations and employees at its Thomastown brick production works in Victoria.

[2] On 12 August 2015, Boral CSR filed an application pursuant to s.418 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to make an order that the Construction, Forestry, Mining and Energy Union (CFMEU), CFMEU representatives and employees covered by the Boral Bricks Pty Ltd Thomastown Enterprise Agreement 2013 – 2017 (the Agreement) cease industrial action, not recommence industrial action or threaten to engage in industrial action. On 13 August 2015, Boral CSR subsequently filed an amended application which sought to extend the coverage of the order to the Australian Manufacturing Workers’ Union (AMWU) and AMWU representatives on the basis that members of that organisation had joined in taking industrial action with the CFMEU and its members.

[3] According to Boral CSR, the events leading up to the making of the applications are as follows. Boral CSR undertook an investigation into statements provided by an employee named Mr Ersoy Hassan, concerning another employee’s workers compensation claim. Boral CSR reviewed CCTV footage which they considered contradicted the statements provided by Mr Hassan. Boral CSR characterised Mr Hassan’s statements as misleading and false, and consequently Mr Hassan was stood down on pay whilst a further investigation was conducted. On 12 August 2015, following the further investigation, CFMEU organiser Mr Steve Roach was informed that Boral CSR intended to issue Mr Hassan with a disciplinary warning. The CFMEU disagreed with the outcome of the investigation and stated they would file a dispute in the Commission and that they would meet with employees. Boral CSR did not alter its position with respect to the outcome of the investigation.

[4] On 12 August 2015, CFMEU organisers met with employees on site at approximately 1:00pm. Following this meeting, CFMEU representatives Mr Roach and Mr Dean Dando informed a representative of Boral CSR that employees covered by the Agreement would leave work, strike for 24 hours and meet at the front gate of Boral CSRs Thomastown site at 2:00pm 13 August 2015. Boral CSR claim that Mr Roach indicated this action was a protest, as the CFMEU alleged that Boral CSR was not taking bullying allegations made by Mr Hassan seriously and demanded an apology to Mr Hassan and compensation for lost overtime payments. These circumstances were not elaborated in great detail.

[5] Boral CSR submit that the industrial action was unprotected on 12 and 13 August 2015, and had the effect of causing substantial loss or damage to the business. Boral CSR submits that this application is made to protect the interests of its business and its customers.

[6] At 2:30pm on 13 August 2015, the Commission conducted the first hearing of this matter. Boral CSR advised the Commission that Mr Roach had contacted the company to advise that the employees had returned to work and that “he had a hard time getting them to go back”. At this hearing, Boral CSR advised and undertook that any dispute about the intended warning issued to Mr Hassan would be dealt with in accordance with the dispute resolution procedure of the Agreement. The CFMEU and AMWU did not attend this hearing.

[7] As the industrial action had ceased, the Commission sought an undertaking from the CFMEU in relation to the issues raised by Boral CSR.

[8] At 8:47am on 14 August 2015, the CFMEU provided the following undertaking to the Commission:

“1. The CFMEU will not organise, advise, encourage, facilitate or acquiesce in the taking of unprotected industrial action in relation to the dispute concerning the issuance of a disciplinary warning in relation to this matter;

2. The CFMEU will recommend, direct, advise or counsel employees of Boral at 2 Trawalla Avenue Thomastown Victoria that unprotected industrial action will not be taken in relation to the imminent disciplinary warning; and

3. Any dispute about the validity or merits of the disciplinary warning matter will be dealt with by the Fair Work Commission and the CFMEU commits to accepting the outcome of this process subject to Boral doing likewise.”

[9] The AMWU did not provide any such undertaking to the Commission. The AMWU noted that the dispute did not appear to directly affect an AMWU member and envisaged that the undertaking by the CFMEU should be enough to satisfy the Commission that no further unprotected industrial action was happening, threatened, impending, probable or being organised.

Relevant Statutory Provisions

[10] Section 418 of the Act prescribes when the Commission must make orders of the kind sought by Boral CSR. Section 418 is 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.

Note: For interim orders, see section 420.

(2) The FWC may make the order:

(a) on its own initiative; or

(b) on application by either of the following:

(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;

(ii) an organisation of which a person referred to in subparagraph (i) is a member.

(3) In making the order, the FWC does not have to specify the particular industrial action.

(4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:

(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or

(b) which has not ended before the beginning of that stop period; or

(c) beyond that stop period;

the FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.”

Submissions

[11] On 14 August 2015, the Commission conducted a second hearing of this matter. Ms Melini Pillay from AI Group appeared for Boral CSR, Ms Amanda Swayn appeared for the CFMEU and Mr Barry Terzic appeared for the AMWU.

[12] Ms Pillay confirmed that no further industrial action had been taken by the employees after the return to work on 13 August 2015. Ms Pillay advised that despite the undertaking provided by the CFMEU, Boral CSR still sought an order pursuant to s.418 of the Act, it was submitted that unprotected industrial action was probable within the meaning of s.418(1)(b) of the Act. Ms Pillay submitted that industrial action remained probable as the reasons for the dispute remained unresolved, and that a decision regarding Mr Hassan was going to be made which Boral CSR considered would be unsatisfactory to the CFMEU and AMWU.

[13] Ms Swayn submitted that in light of the undertaking of the CFMEU, and the demonstrated action of Mr Roach of ensuring a return to work of the employees, the Commission should not be satisfied that unprotected industrial action was probable.

[14] Mr Terzic submitted that in light of the CFMEU’s undertaking, and the fact that AMWU members took unprotected industrial action in support of the CFMEU members, it is highly improbable that AMWU members would go “on a frolic of their own” and take further unprotected industrial action.

[15] Mr Terzic directed the Commission to the High Court of Australia’s consideration of the term “probable” in Darkan v The Queen (2006) 227 CLR 373 (Darkan). In Darkin, the High Court considered “probable” to mean “a probability of less than 50/50, but more than a substantial or real and not remote possibility”.  1

Consideration

[16] For the purpose of the decision, and in light of the undertaking provided by the CFMEU, it was necessary to consider whether it was probable in accordance with s.418(1)(b) of the Act that the CFMEU, AMWU, and/or delegates, officers, employees, servants and agents of the CFMEU and AMWU or named employees covered by the Agreement would take unprotected industrial action. Such a finding would enliven the Commission’s jurisdiction to issue an order of the kind sought by Boral CSR. This is because it was accepted by Boral CSR that as of 2:30pm 13 August 2015 there was no unprotected industrial action happening, threatened, impending or being organised.

Conclusion

[17] At the time of the decision, in light of the undertaking, the submissions of the AMWU and submissions of the CFMEU, the Commission did not consider that it was apparently probable that the CFMEU, AMWU, and/or delegates, officers, employees, servants and agents of the CFMEU and AMWU or named employees covered by the Agreement would take further unprotected industrial action. Therefore, no order was issued at this time. However, in light of the submissions made by Boral CSR in relation to the decision to be made with respect to Mr Hassan the file will remain open and a further hearing may be listed upon application by Boral CSR.

COMMISSIONER

Appearances:

Ms M Pillay of AI Group for Boral CSR Bricks Pty Ltd

Ms A Swayn for the CFMEU

Mr B Terzic for the AMWU

Hearing details:

2015.

Melbourne.

August 13, 14.

 1   Darkan v The Queen (2006) 227 CLR 373, 382 (Gleeson CJ, Gummow, Heydon and Crennan JJ)

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