Brunel Technical Services Pty Ltd v The Australian Workers' Union
[2011] FWA 2435
•20 APRIL 2011
[2011] FWA 2435 |
|
DECISION |
Fair Work Act 2009
s.418—Industrial action
Brunel Technical Services Pty Ltd
v
The Australian Workers’ Union
(C2011/3779)
Oil and gas industry | |
COMMISSIONER BLAIR | MELBOURNE, 20 APRIL 2011 |
Alleged industrial action at DB30 Barge located in Bass Strait.
[1] The following decision (now edited) was handed down at a hearing which took place before Fair Work Australia (the Tribunal) in Melbourne on Friday 15 April 2011.
[2] This matter arises out of an application under section 418 of the Fair Work Act 2009 (the Act) by Brunel Technical Services Pty Ltd (Brunel) that industrial by employees stop. The Tribunal, having read the written submissions and heard the verbal submissions of the parties, the Tribunal was in a position to issue its decision.
[3] The Tribunal would indicate that it is acknowledged by the parties that currently there is no unprotected industrial action occurring. There might be an issue as to the application of the inclement weather clause of the enterprise agreement.
[4] The project concerned is known as the KTT Project, which commenced on 10 November 2010. The project is a major project, carried out by McDermott Industries (Australia) Pty Ltd (McDermott) who contract to Brunel, who provide labour services to McDermott. McDermott are under contract, as the Tribunal understands it, from Esso Australia Resources Pty Ltd. It's a major project occurring in Bass Strait.
[5] Shortly after the commencement of the project in December 2010 an unprotected stoppage occurred. This was commonly called the “big rig dispute”. Arising from that an interim section 418 order was issued. Arising from that, discussions occurred between the parties and at a hearing before the Tribunal on 13 December 2010, the parties advised the Tribunal that the matter had been settled.
[6] Brunel did not press the application under section 418, but as part of the settlement the Australian Workers’ Union (the Union) gave an undertaking on 13 December 2010 to abide by the disputes procedure identified in the enterprise agreement.
[7] At this point, the Tribunal believes it is appropriate to refer to a decision of his Honour McCarthy DP in Downer Energy Systems Pty Ltd and Others v AMWU and CEPU, PR967313. In that part, his Honour says:
“Matters such as the effects of the union officials and delegates to prevent industrial action in the future changes in the preparedness to properly use dispute resolution procedures and undertakings given could be indicative that there is not a probability of future industrial action, notwithstanding a poor history and experience.”
[8] The Tribunal refers to that particular part of his Honour's decision because it's important that the parties understand the part that that plays in the Tribunal coming to its conclusion.
[9] An unprotected stoppage occurred on Friday, 25 March 2011. That stoppage lasted for approximately five days. The stoppage arose out of the issuing of a warning to a shop steward, Mr Sharp. That warning arose out of an altercation between Mr Sharp and a supervisor/foreman on the barge, commonly called DB 30. The supervisor/foreman is an employee of McDermott. McDermott have supervisory roles on the barge and the Brunel employees take their directions and instructions from those McDermott employees.
[10] Prior to the stoppage that occurred on 25 March, Mr Saunders, who is an industrial relations consultant with Brunel, gave evidence that he had a conversation with Mr Terry Lee. Mr Terry Lee is an official of the Union. Mr Lee is identified as a Union official as per the Union's returns to the Tribunal dated 2 March 2011 and therefore falls under the definition of section 12 of the Act:
“Official of an industrial association means a person who holds an office in or is an employee of the association.”
[11] Mr Saunders gave evidence that in that conversation with Mr Lee, when Mr Lee became aware that a written warning would be issued to Mr Sharp, he said words to the effect:
“There will be serious repercussions.”
[12] Shortly after that, as indicated, the five-day stoppage occurred. An interim section 418 order was issued late on 25 March 2011. The Tribunal was advised that the employees ignored those interim orders. The matter then was subsequently dealt with in the Federal Court on Sunday, 27 March and then Tuesday 29 March and Thursday 31 March, before two different Judges. There was an eventual return to work.
[13] It is interesting to note that the matter that gave rise to the five-day stoppage; that is, the issuing of the warning to Mr Sharp, was dealt with by separate proceedings before the Tribunal as currently constituted.
[14] An amicable outcome was reached by way of a recommendation from the Tribunal.
[15] It is noted that since November 2010 there have been two interim orders issued on this project. On both occasions the employees have failed to follow the disputes procedure.
[16] In dealing with whether or not the order, if granted, should bind and apply to the Union, Mr Sharp and the other shop stewards, are representatives of the Union as per the Union rule 45, part 8, and fall within the definition of section 12 of the Act. That section states:
“Officer of an industrial association means (a) an official of the association, or (b) a delegate or other representative of the association.”
[17] It was said in evidence by Mr Terry Adams, who is a senior manager in human resources and industrial relations at McDermott, that Mr Lee, which was not disputed, is a significant player on behalf of the Union in this particular field and within the Latrobe Valley in general.
[18] The Tribunal is satisfied that, given the role of Mr Sharp and Mr Lee (both officers of the Union) the Union gave either explicit approval or implied approval by not ordering or encouraging industrial action to cease or that the disputes procedure must be complied with as per the undertaking given on 13 December 2010, the order should be binding on the Union.
[19] There is, as indicated earlier, an ongoing issue regarding the application of the inclement weather clause of the enterprise agreement. There is no doubt that there will be other issues that will arise as the life of this project continues.
[20] Section 418(1)(b) of the Act states:
“FWA must order that industrial action by employees or employers stop etc.
(1) If it appears to FWA 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;
FWA must make an order that industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.”
[21] Given the history of this project, there have been two periods of unprotected industrial action. There have been two section 418 interim orders issued. There have been undertakings provided by the Union that the disputes procedure will be complied with, when it has not been.
[22] The Tribunal cannot be satisfied that, given the short history of the project, further unprotected industrial action will not occur in breach of the disputes procedure and of the Act.
[23] Therefore, the Tribunal is satisfied that not only is further unprotected industrial action probable, as within the meaning of section 418(1)(b), but in the Tribunal's view it is highly probable.
[24] Given the history as indicated by the Tribunal, the Tribunal is of the view that the order shall be granted and will remain in force until the nominal expiry date of the agreement, which is 30 June 2012.
COMMISSIONER
Appearances:
J Tuck, solicitor, for Brunel Technical Services Pty Ltd
S Billing, solicitor, for McDermott Industries (Australia) Pty Ltd
S Amendola, solicitor, for the Australian Building and Construction Commission
D Victory and S Keating, solicitors, for the Australian Workers’ Union (AWU)
Hearing details:
2011
Melbourne:
March 25, 28
April 11, 13, 15
Sydney:
March 30
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