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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: 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
Case: [2015] FWC 6050
Decision Date: 2 SEPTEMBER 2015

CaseChat Overview and Summary

The case before the court involved Boral CSR Bricks Pty Ltd, who sought an injunction to prevent the Construction, Forestry, Mining and Energy Union and the Australian Manufacturing Workers' Union from engaging in alleged unprotected industrial action at their Thomastown site in Victoria. The dispute centred on the interpretation of the term "probable unprotected industrial action" and the applicability of the enterprise agreement's dispute settlement procedure. The court was required to determine whether the union's actions constituted unprotected industrial action and whether it had jurisdiction to make any orders in response to the company's application.

The central legal issue was whether the unions' alleged activities constituted unprotected industrial action under the relevant industrial relations laws. The court examined the meaning of "probable unprotected industrial action" and whether the unions' actions were sufficiently imminent or likely to warrant an injunction. Additionally, the court had to consider whether the enterprise agreement's dispute settlement procedure provided an exclusive mechanism for resolving the dispute, potentially precluding the court's jurisdiction to grant the injunction.

In its decision, the court found that the unions' actions did not constitute unprotected industrial action, as they were not happening, threatened, impending, probable, or being organised. The court also concluded that the enterprise agreement's dispute settlement procedure provided an exclusive mechanism for resolving the dispute, and therefore the court did not have jurisdiction to make any orders. The court emphasised that the unions' actions were not sufficiently concrete or imminent to warrant an injunction, and that the enterprise agreement provided an adequate and exclusive means for resolving the dispute. The court's reasoning was based on the specific facts and circumstances of the case, and the interpretation of the relevant industrial relations laws and the enterprise agreement.

As a result of the court's decision, no orders were made in response to the company's application. The court held that it did not have jurisdiction to grant the injunction, and that the unions' actions did not constitute unprotected industrial action. The decision highlights the importance of the specific facts and circumstances of a case in determining whether industrial action is unprotected, and the role of enterprise agreements in providing an exclusive mechanism for resolving disputes.

Orders