Cape (CHS) Pty Ltd v Construction, Forestry, Mining and Energy Union

[2013] FWC 4691

[2013] FWC 4691

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.418—Industrial action

Cape (CHS) Pty Ltd
v
Construction, Forestry, Mining and Energy Union
(C2013/5093)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 15 JULY 2013

Alleged industrial action at Cape (CHS) Pty Ltd, Springvale Scaffold Yard Site at 2 Regent Avenue, Springvale.

[1] Cape (CHS) Pty Ltd (the Applicant) made an application pursuant to section 418 of the Fair Work Act 2009 (FW Act) on 11 July 2013.

[2] The Applicant sought orders against the Construction, Forestry, Mining and Energy Union (the CFMEU), its officers, agents and employees including but not limited to organiser Mr Gareth Stephenson, as well as employees of the Applicant who are either members of or eligible to be members of the CFMEU who perform work at the Springdale Scaffold Yard Site at Regent Avenue, Springvale.

[3] The application was listed for hearing at 3:30pm on 11 July 2013. The CFMEU was not in attendance and the matter was adjourned until 10:30 am on 12 July 2013.

[4] At the commencement of the hearing on 12 July 2013 the CFMEU was also not in attendance.

[5] I granted permission to Mr James Simpson, a legal practitioner, to appear for the Applicant. It was submitted that granting permission to a lawyer to appear would enable the matter to be dealt with more efficiently as the representative of the Applicant was also a witness in the proceeding and had no familiarity with the FW Act.

[6] At the conclusion of the hearing I advised that as it appeared that industrial action was occurring and that the industrial action was likely to continue and the CFMEU and its organiser were organising the industrial action, that an order 1 would be issued.

[7] These are my reasons for that decision.

The evidence

[8] Mr Daniel Crick, a solicitor, gave evidence of service of the application, the proposed order and the original notice of listing on the CFMEU and Mr Stephenson. Mr Harrop was with Mr Stephenson when he was served with the application.

[9] After the adjournment of the application on 11 July 2013 the revised notice of listing was served on the CFMEU Legal Officer Ms Kate Marshall as well as faxed to the CFMEU State office.

[10] Mr Jason Traynor, the Operations Manager for the Applicant gave evidence that in October 2012 the Applicant announced that a decision had been made to wind down the operations over time. As a result, the Applicant made a number of employees redundant. In late June 2013 an offer of voluntary redundancy was made to employees but the offers were not taken up. As a result, three employees were advised that a decision had been taken to terminate their employment on the grounds of redundancy.

[11] On 5 July 2013, the CFMEU lodged a dispute with the Victorian Building Industry Disputes Panel. A conference was held on 10 July 2013 but the dispute was not resolved.

[12] On 11 July 2013 at approximately 7:30am Mr Traynor attended the site to find that one of the contracted drivers had been prevented from leaving the site because the entrance to the site was blocked by two vehicles. He recognised one of the vehicles as one that was normally driven by Mr Stephenson. It was his evidence that the three terminated employees plus Mr Harrop and Mr Stephenson were preventing the driver from leaving the site.

[13] Mr Traynor met with Mr Stephenson at 8:00am. Mr Stephenson advised that he was intending making a formal claim for an increased redundancy package for the workers. Mr Traynor advised that he would not negotiate while the entrance was blocked and Mr Stephenson agreed to move the vehicles to permit the meeting to occur.

[14] At approximately 10:55am Mr Stephenson advised Mr Traynor that the cars were going back in the driveway and that no one was resigning and no one was going to work and that his trucks would have difficulty getting in stock. Mr Traynor sent his remaining four workers home for the day. It was his evidence that the entrance to the site was still being picketed by three ex-employees, Mr Stephenson and Mr Harrop. Cars continue to block entrance.

[15] In his second witness statement Mr Traynor gave evidence that the other car blocking the entrance to the site was driven by one of the ex-employees.

[16] Mr Traynor gave evidence that he met with Mr Stephenson at approximately 9.30am on 11 July 2013 and Mr Stephenson advised him that the claim was for $1000 per year of service. Mr Traynor advised Mr Stephenson that they were not willing to negotiate on those terms and would not offer more than the statutory entitlements.

[17] Mr Traynor said that at 12:00pm another driver was prevented from entering the site. The driver was informed by one of the ex-employees that he had been instructed by the CFMEU not to let him through. Mr Traynor directed Mr Harrop that as he was still employed he needed to assist him to get the truck into the site. Mr Harrop told him that he had been instructed by the CFMEU not to. The site was picketed until at least 14:45pm. Mr Traynor attended the site again at 7:15am on 12 July 2013 and observed the same ex-employees and Mr Harrop picketing the site thus preventing access to the site.

The Statutory Framework

[18] Section 418 of the FW 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.

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.”

Findings

[19] The evidence establishes that industrial action is happening. Mr Harrop is not attending work in support of a claim for increased redundancy pay. The evidence establishes that Mr Stephenson is organising that industrial action. As Mr Stephenson is an organiser with the CFMEU and there is no evidence to suggest that Mr Stephenson is not acting on behalf of the CFMEU, I find that the CFMEU and Mr Stephenson are organising the industrial action. Further, it is clear from the statements of Mr Stephenson that there is a threat that the industrial action will continue.

[20] The evidence establishes that the industrial action is not protected industrial action as the enterprise agreement which covers the employers, employees and the CFMEU has a nominal expiry date of 31 March 2015.

[21] Accordingly, it appears to me that industrial action is happening and threatened and that Mr Stephenson and the CFMEU are organising the industrial action and therefore an order that the industrial action stop will be issued.

[22] I declined to issue orders against the other employees as there was no evidence that they were taking industrial action or had threatened to take industrial action and there was no evidence that the application or notice of listing had been served on them.

[23] I also declined to make some machinery orders sought by the Applicant. No submissions were made as to why such orders were necessary and/or appropriate.

DEPUTY PRESIDENT

Appearances:

J. Simpson for the Applicant.

No appearance by Respondent.

Hearing details:

2013.

Melbourne.

12 July.

 1   PR538887

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