Castlemaine Perkins Pty Limited T/A Castlemaine Perkins v United Voice

[2018] FWC 4616

[2018] FWC 4616

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.418 - Application for an order that industrial action by employees or employers stop etc.

Castlemaine Perkins Pty Limited T/A Castlemaine Perkins

v

United Voice

(C2018/3688)

DEPUTY PRESIDENT ASBURY BRISBANE, 6 AUGUST 2018

Section 418 application for order that industrial action stop

1. In a Decision released on Thursday 2 August 2018, I considered an application by Castlemaine Perkins Pty Limited (CPPL) for an order under s. 418 of the Act that industrial action not be organised or be engaged in by United Voice, its officers, servants or agents and employees who have United Voice as their bargaining representative. The basis of the application by CPPL was a breach by United Voice of an earlier interim bargaining order which had been made by Commissioner Hunt on 8 June 2018.  I also decided to refuse a related application by United Voice to vary the interim bargaining order retrospectively to remove the breach by the Union.[1] 

1. The effect of my decision of 2 August 2018 to refuse the United Voice application to vary the interim bargaining order is that s. 413(5) of the Act was engaged at the point United Voice breached the interim bargaining order, so that industrial action organised or engaged in by United Voice and employees for whom it is a bargaining representative, is not protected industrial action.

1. I did not issue the s. 418 order sought by CPPL at that time, and gave the parties a further opportunity to provide written submissions in relation to whether the Commission could be satisfied as required by s. 418(1) that it appears that industrial action that would not be protected industrial action that is happening, threatened, impending or probable or being organised. An interim order I made under s. 420(2) of the Act pending the hearing and determination of this matter remained in effect during this period. 

1. I also invited United Voice to consider providing an undertaking to CPPL in relation to its future conduct including that it would not organise industrial action and would advise employees for whom it is a bargaining representative, accordingly. The parties were required to file and serve any further submissions by 4.00 pm on Monday 6 August 2018. 

1. At 11.08 am on Monday 6 August 2018, Herbert Smith Freehills on behalf of CPPL sent an email to the Commission stating that CPPL sought that an order be made and attaching a draft. The email also indicated that discussions had been held with Hall Payne Lawyers on behalf of United Voice and that Herbert Smith Freehills had been advised that United Voice did not oppose the making of the orders in terms of the draft proposed by CPPL.

1. Given that the requirement that I be satisfied of the matters in s. 418(1) of the Act before making an order under that section, regardless of whether or not a party against whom such an order is proposed to be made, opposes that course, I determined to list the matter for a further hearing at 2.00 pm on Monday 6 August 2018.  At that hearing, CPPL was represented by Ms Nicole Jones of Herbert Smith Freehills and United Voice by Mr Luke Tiley of Hall Payne Lawyers.

1. Ms Jones submitted that on the basis of the breaches of the interim bargaining order by United Voice, s. 413(5) is engaged and no industrial action organised by United Voice or its employees, servants or agents, or engaged in by employees of CPPL who have United Voice as their bargaining representative will be protected. Ms Jones also submitted that United Voice notified CPPL on 5 July 2018 that it intended to organise industrial action and knew at that time that it had breached the interim bargaining order and that industrial action it had notified would not be protected. This was said to evidence a preparedness to take unprotected industrial action and the probability that this would occur in future.

1. Further, Ms Jones submitted that but for an interim order issued under s. 420(2) of the Act by the Commission as presently constituted on 9 July 2018, United Voice would have taken industrial action on 11 July as notified to CPPL on 5 July 2018. Ms Jones also pointed to the fact that United Voice had not taken up the suggestion that it offer an undertaking in relation to its future conduct to CPPL or the Commission and that this also indicated that it is probable that industrial action that is not protected will be organised, engaged in or taken in future.

1. Mr Tiley on behalf of United Voice stated that the Union did not oppose the Commission making an order in terms proposed by CPPL and sent to United Voice by email at 11.08 am on Monday 8 August 2018.

1. After considering the submissions of the parties in the context of the factual findings made in my decision of Thursday 2 August 2018, I conclude that it appears that industrial action by one or more employees that would not be protected industrial action is probable.  Accordingly, by virtue of s. 418(1) I must make an order that the industrial action not occur or not be organised.

1. An order in the terms sought by CPPL will issue with this Decision and the interim order made on 9 July 2018 will be set aside.

DEPUTY PRESIDENT

Appearances:

Ms N Jones of Herbert Smith Freehills for CPPL.

Mr L Tiley of Hall Payne Lawyers for United Voice.

Hearing details:

2018.
6 August.
Brisbane.

<PR609734>

[1] [2018] FWC 4470.

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