CDJV Construction Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

[2013] FWC 3757

[2013] FWC 3757

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.

CDJV Construction Pty Ltd
v
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2013/871)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 13 JUNE 2013

Alleged industrial action at CDJV Construction Pty Ltd at Fairview - application for an order that industrial action by employees stop - application dismissed.

[1] On 11 June 2013, a hearing was conducted in relation to an application under s.418 of the Fair Work Act 2009 (“the Act”) by Clough Downer Joint Venture Construction Pty Ltd (“CDJV”) for a stop order in relation to its employees who were members of or eligible to be members of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”) at its Fairview site, in central Queensland.

[2] The application did not assert that industrial action was happening for the purposes of s.418(1)(a) of the Act, but that the industrial action was threatened, impending or probable for the purposes of s.418(1)(b) of the Act.

[3] CDJV contended that there had been industrial action that was unprotected industrial action on 5 June 2013 at two of its project sites (Hub 4 and Hub 5) and that the underlying issue remained unresolved and that as a consequence further industrial action was threatened, impending or probable.

[4] The underlying issue concerned whether or not civil labourers were to be permitted to roll out electrical cable or whether this was a task that should be carried out exclusively by electrical trades employees.

[5] Evidence was taken in the proceedings from Mr Byrom, the Employee Relations adviser for the project since October 2012, Mr Gambling, the Construction Manager, Mr Hayes, the CEPU delegate for Hub 4 and Mr McGore, the CEPU Organiser with responsibility for the project.

[6] Following a lengthy examination of the evidence, I made a decision in transcript in relation to this application. That decision, redacted only for purposes of the correction of the more shameful grammatical infelicities, which arose in the context of its ex tempore delivery, is as follows.

Ex Tempore Decision

[7] I have before me an application by the Clough Downer Joint Venture (CDJV), in relation to the Fairview project. The Applicant in this matter, CDJV, is seeking an order under section 418(1)(b) of the Act that the industrial action that is pending or threatened be the subject of an order to ensure that it does not transpire.

[8] The industrial action upon which the application was premised was said to have occurred on 5 June at Hubs 4 and 5. The evidence is sufficient, in my view, to demonstrate that the industrial action did occur on that day on those two sites. It followed a robust discussion with, as I am told, between the Applicant and a representative of the Applicant and the CEPU organiser, Mr Ong.

[9] The industrial action that was taken on 5 and 6 June arose over cable pulling responsibilities. The industrial action occurred on that day only and in the context as indicated in writing to the joint venture. Industrial action ceased at the conclusion of that day, and ordinary work was resumed at the commencement of the next shift on 6 June 2013.

[10] As I have implied in what I have said so far, I have no doubt that the industrial action that took place on 5 June would have been unprotected industrial action to which an application under section 418 could have been made and in respect of which an order under section 418 may possibly have been applied.

[11] That said, that industrial action has ceased. That industrial action does not provide the basis for jurisdiction of this matter in the sense that the industrial action is no longer happening, but, as I said at the very start of my decision, industrial action is now said to be probable or threatening such that an order should be applied.

[12] But is the industrial action threatened or probable or impending as is claimed by the Applicant?

[13] A number of matters in the evidence are relevant to this matter, or to the answer to that fundamental question.

[14] Firstly, the cable-pulling activities continued on 6 June, that is the next day after the industrial action, and no industrial action arose on that next day.

[15] There have been subsequent meetings between the employer and the representatives of the employees which have heightened the awareness of the dispute resolution clause and the relevant procedures, and the escalation procedures in particular, including to the commission for dispute resolution.

[16] It was acknowledged in the Applicant’s evidence that the delegates - that is Mr  Cram in particular - had given an impression to the employer that there was some remorse as to the failure to apply the dispute resolution procedure at that particular time, or at least a belated recognition that it should have been applied at that time.

[17] In one of those meetings a warning letter was issued to employees about the impact and consequences of continued unprotected industrial action. That is, the employer has taken steps subsequent to 5 June to warn the employees about the implications of their involvement in further industrial action, and have advised again of the importance of maintaining the integrity of the dispute resolution clause which is an element of the industrial agreement to which they both are bound and in respect of which they both have obligations.

[18] The delegates have acknowledged the dispute resolution clause and they have also acknowledged that they are seeking to control the tensions that may have existed in the workforce as a result of the issue arising in relation to the respective responsibilities of the electrical trades and the civil labourers in respect of cable pulls. That is to say that the delegates are conscious of the importance of controlling the tensions at the workforce level and the delegates themselves are not attempting to instigate or incite or to organise or aid or abet, or in some other way encourage industrial action.

[19] Mr Gambling gave evidence that the delegates had acknowledged on 5 June that there were arrangements that could be put in place for purposes of facilitating the pulling out of heavy HV cable where higher degrees of manual labour were required, and that there might be other arrangements negotiated or put in place in relation to the lighter cable pullouts. Again, this evidence suggests to me - that is, from the Applicant’s perspective - that steps have been taken since 5 June to come to some managed arrangements for the future about the issues in respect of which they had fallen into contest, and which had resulted in industrial action on 5 June 2013.

[20] Mr Hayes himself, the delegate for the hub 4, if I recall, also gave evidence that since the consultation or arrangements were put in place, or else since such time as the employer had agreed to give advice about its intentions, that he held no concerns subsequently that there would be a further outbreak of industrial action. He also confirmed, under my questioning, that from his role as a delegate he foresaw that any other future concerns about cable pullouts would be subject to the dispute resolution clause in the agreement.

[21] None of this, I should say, is a guarantee that industrial action will not occur again. None of it is a guarantee that there is not a potential for further industrial action, but all those matters that I have raised above - that is, in my earlier comments - demonstrate that since the industrial action of 5 June 2013, some considerable amount of water has passed under the bridge.

[22] That is, there have been discussions, there have been meetings, there have been written warnings, there have been communications about intentions, consultations and the manner in which future concerns will be managed and through what processes. That is, there has been a considerable amount of interaction between the parties since the industrial action took place on 5 June 2013.

[23] This is not a case where the industrial action in stark terms took place, there has been minimal consultation between the parties subsequently, the matters remain all in contest and unresolved, and there is therefore a likelihood or a probability that the course of action taken at the prior time will be replicated at a later time in a situation where the prior circumstances are replicated.

[24] In my view the matters that have been on foot, and the contest over what degree of involvement of trades and non-trades are to be involved in cable pullouts of various kinds, and over what lengths of pullouts that are required, are matters that I think are still realistically matters about which the parties will likely fall into conflict and argument from time to time.

[25] But I think on the basis of what I have heard through the evidence tonight, they are not matters to which there will be an uncontrolled reaction, such as what occurred on 5 June 2013. It appears to me that all that has passed since that date is such as to place that issue within proper processes and to give parties a more considered perspective on the course of action that they would take when and if those matters came into contest again.

[26] All in all, therefore, I am of the view that time has passed, discussions have occurred and the likelihood of industrial action has dissipated. I am sufficiently realistic to acknowledge, as I have said before, that the issues have not been fully resolved and that there is a potential for further industrial action, but none of those matters give me cause to reach findings that the industrial action is probable or in some other way threatened.

[27] In my view, no order should issue in this matter and I will, as a consequence, dismiss the application.

[28] But in doing so I bring to the parties’ mutual attention that we have explored in some detail all the matters dealing with the dispute that arose from 5 June onwards over the course of this afternoon. It has been put to me by all sides - that is particularly also the union delegates, the organiser Mr McGaw and Mr Hayes, the delegate for HB 4 - that there is an acute awareness on their parts as to the importance of negotiation, discussion and the utilisation of the dispute resolution procedure.

[29] It has also been put to me, and has not been challenged, that there have been letters of warning issued by the employer to the employees, and the employees are also on notice of the importance of dealing with [...] through proper procedures.

[30] Having put all those things on the table, having explored all of those matters, having increased awareness on the part of all parties as to the importance of those practices and procedures, it would strike me as a somewhat serious step for employees to again take industrial action in the future in relation to these matters.

[31] In that context, the circumstances of this matter and all that has transpired since 5 June 2013 would come into play for affecting any future judgment that might be made by the Commission about the applicability of any order in relation to the employees, and the duration of that order that should apply to the employees, given all that has passed having been explained and communicated to them and clearly understood by them as well.

[32] That said, to summarise, my conclusion on this matter: no order will be in relation to this matter because the jurisdictional precedent or preconditions for an order to be made have not been made out.

[33] But then I also place the employees on notice that, given my findings and given the materials that I have explored tonight by way of the evidence, should there be industrial action in the future, those circumstances would play heavily on my judgment in relation to any future application.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr Ian Turner, AMMA, for the Applicant.

Ms Pat Rogers, CEPU, for the Respondent.

Hearing details:

2013.

Brisbane.

11 June.

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