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

[2018] FWC 1680

[2018] FWC 1680

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Broadspectrum Australia Pty Ltd
(C2018/1275)

COMMISSIONER MCKINNON MELBOURNE, 21 MARCH 2018

Dispute under s.739 – application for interim orders – application dismissed.

Introduction

[1] On 9 March 2018, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) applied to the Commission to deal with a dispute under section 739 of the Fair Work Act 2009 (the Act) with Broadspectrum Australia Pty Ltd (Broadspectrum).

[2] The dispute is about whether Broadspectrum met its consultation obligations under the Broadspectrum Australia Pty Ltd and ETU Enterprise Agreement 2010 – 2014 1(the Agreement) in connection with the redundancy of Mr Jeff Blokkeerus, Mr Glenn James and Mr Darren Buttigieg (the Employees). It is not in dispute that the Employees were covered by the Agreement.

[3] The CEPU initially sought interim orders preserving the status quo by maintaining the employment of the Employees pending resolution of the dispute in accordance with the Agreement.

[4] On 16 March 2018, a hearing was held and the parties agreed to a process for dealing with the dispute, including the filing of consent orders. The parties did not ultimately agree to the form of the proposed consent orders and the Employees were dismissed on 19 March 2018. The CEPU now seeks that they be reinstated pending resolution of the dispute and presses its application for interim orders on that basis.

[5] Broadspectrum opposes the application and the application for interim orders. It says it has complied with its consultation obligations under the Agreement and that, in any event, the pre-dispute status quo was its process of reducing employee numbers in accordance with a direction from Mobil.

[6] The matter was heard in Melbourne on 20 March 2018. The CEPU led evidence from Mr Gerry Glover, CEPU Organiser. No other evidence was led.

[7] This decision deals with the application for interim orders.

Interim orders

[8] Section 589 of the Act provides that the Commission may make procedural and interim decisions, as follows:

“589 Procedural and interim decisions

(1) The FWC may make decisions as to how, when and where a matter is to be dealt with.

(2) The FWC may make an interim decision in relation to a matter before it.

(3) The FWC may make a decision under this section:

(a) on its own initiative; or

(b) on application.

(4) This section does not limit the FWC’s power to make decisions.”

[9] The principles relevant to the making of interim orders are well established. 2 In summary, the Commission must determine if there is a serious issue to be tried and where the balance of convenience lies, having regard to the nature of the substantive application, the jurisdictional context in which the application is being considered, and the circumstances of the parties.3

[10] An applicant for interim orders does not need to demonstrate that it is more probable than not they will succeed but rather whether there is a sufficient likelihood of success to justify the preservation of the status quo pending trial. In relation to the balance of convenience, it is relevant to consider whether inconvenience or injury to the applicant from a refusal to issue an interim order outweighs the injury the respondent would suffer if such an order were granted. 4

Serious question to be tried

[11] The Agreement confers jurisdiction on the Commission to resolve disputes over permitted matters as defined in the Act 5 or over the application of the Agreement or the NES, including by conciliation and/or arbitration.6 The dispute in this case falls within that description. It is about whether Broadspectrum has met its consultation obligations in relation to redundancy under clause 30.1(b) of the Agreement, which is clearly within the ambit of permitted matters.

[12] The obligations on Broadspectrum under clause 30.1 of the Agreement are to, as early as practicable after a decision has been made to implement major change:

1. Discuss with employees affected and their representatives:

a. the introduction of the major change (in this case, the termination of employment by reason of redundancy);

b. the effects the change is likely to have on employees; and

c. measures to avert or mitigate the adverse effects of such changes on employees;

2. Give prompt consideration to matters raised by employees and/or their representatives in relation to the changes;

3. Provide in writing to employees concerned and their representatives all relevant information about the changes including the nature of the changes proposed, expected effects of the changes on employees and any other matters likely to affect employees (but not confidential information if its disclosure may be contrary to Broadspectrum’s interests). For employees from non-English speaking backgrounds, the information is to be provided in languages other than English; and

4. Take reasonable steps to mitigate the adverse effects of change upon employees.

[13] The chronology of events in this matter, which was not contested, is summarised below.

[14] On 22 February 2018, Broadspectrum advised the CEPU that it was proposing to implement redundancies at the Mobil Refinery at Altona and that it was commencing a consultation period in relation to the redundancies which would end on 1 March 2018. 7

[15] On 23 February 2018, the CEPU sought a meeting to discuss the proposed redundancies with Broadspectrum. According to Mr Glover of the CEPU, no response was received to this request. 8

[16] On 26 February 2018, the CEPU advised Broadspectrum that it was in dispute in relation to the proposed redundancies under the Agreement: specifically, clauses 15.2(a) (dispute resolution), 19 (redundancy) and 30 (consultation). 9

[17] The parties participated in a telephone conference on 28 February 2018 to discuss the proposed redundancies and measures to avert or mitigate them. 10

[18] On 1 March 2018, the CEPU raised its concerns about the proposed redundancies with the Mobil Refinery and wrote to Broadspectrum confirming its earlier suggestion that redundancies could be avoided by employees taking excessive leave. 11

[19] On 2 March 2018, the CEPU sought a copy of the skills matrix used to select employees for the proposed redundancies as well as information about whether voluntary redundancies would be offered. Broadspectrum agreed to offer voluntary redundancies and did so. It appears that no employees volunteered for redundancy. 12

[20] On 9 March 2018, the Employees were advised they were being considered for redundancy and were stood down on full pay. 13

[21] On 13 and 14 March 2018, the parties attended the Commission and discussed the proposed redundancies. A blank copy of the skills matrix was provided to the CEPU. The CEPU requested further information, including a copy of the advice from Mobil regarding the reduction in employee numbers and the completed skills matrix sheets for each of the Employees. This information was not provided to the CEPU. 14

[22] On 15 March 2018, the Employees were requested to attend a meeting with Broadspectrum. 15

[23] On 19 March 2018, the Employees were made redundant. 16

[24] The evidence before me suggests that Broadspectrum asked the Employees to meet to discuss the proposed redundancies. However, it is not apparent that any such meeting(s) took place. The evidence also suggests that there was a request for information from the CEPU about the redundancies and that while some of that information was provided, some was not. In each respect, it appears to me at least arguable that the consultation obligations in the Agreement were not met.

[25] While Broadspectrum has not yet led any evidence in the matter, I am satisfied that if the evidence remains as it is, there is an arguable case with some reasonable prospect of success that it did not meet its consultation obligations under the Agreement in relation to the redundancy of the Employees.

Balance of convenience

[26] While there is an arguable case in relation to compliance with the Agreement’s consultation obligations, the strength of that case is not yet apparent.

[27] The Act provides a range of remedies to deal with disputes over redundancy, including applications of this kind, court proceedings dealing with enterprise agreement contraventions and applications for unfair dismissal remedies. In dealing with contraventions of the Act, the courts have power to order reinstatement. 17 In the unfair dismissal jurisdiction, reinstatement is the primary remedy and if that is not appropriate, orders can be made for compensation. If there is a dispute about genuine redundancy, compliance with consultation obligations in a relevant enterprise agreement is a key consideration.

[28] The point is that there are various avenues open to the Employees to seek redress for the dismissal. At least one of those is being pursued, and on 19 March 2018, a second application was made under section 739 by the CEPU also seeking the reinstatement of the Employees. 18 In the circumstances, it is difficult to see how irreparable harm will flow to the Employees such that orders of the kind now sought should be made.

[29] On the other hand, if Broadspectrum are required to restore the employment of the Employees, its costs of doing so will be incurred until the dispute is determined and there is no apparent avenue for it to recover those costs should the CEPU ultimately be unsuccessful. The CEPU has offered an undertaking to cover those costs in that event. The undertaking was first proposed when consent orders were in contemplation and could have included an order giving effect to the undertaking proposed. Ultimately, however, the parties were unable to finalise consent orders and as a result, no order in relation to the undertaking was made. It is not apparent how, absent such an order, the undertaking would be enforceable. 19

[30] The context for the Employee’s dismissal is also important. In each case, their positions have been made redundant and there is no evidence that, were they to be reinstated, there would be any work for them to do. While productive work for Broadspectrum might well mitigate against any costs it incurs in employing them, if no work is available, then clearly it will not.

[31] For the reasons set out above, I am satisfied that the balance of convenience weighs against the grant of the interim orders sought by the CEPU.

Conclusion

[32] The CEPU has established an arguable case that the consultation obligations under the Agreement were not met in relation to the redundancy of the Employees. However, the balance of convenience weighs against the grant of the interim orders it seeks.

[33] The application for interim orders is dismissed.

COMMISSIONER

Appearances:

A Kendall for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

S Patten for Broadspectrum Australia Pty Ltd

Hearing details:

2018.

Melbourne:

March 20.

<PR601380>

 1   AE889843

 2   Australian Manufacturing Workers’ Union v WW Wedderburn Pty Ltd[2016] FWC 2260, (2016) 258 IR 12, citing Quinn v Overland  [2010] FCA 799

 3   Bayly [2017] FWC 1886

 4   Snow [2017] FWC 6910

 5   Fair Work Act 2009 (Cth), s.172

 6   Clause 15.2 of the Agreement

 7   Exhibit 1

 8   Exhibit 1

 9   Exhibit 1

 10   Exhibit 1

 11   Exhibit 1

 12   Exhibit 1

 13   Exhibit 1

 14   Exhibit 1

 15   Exhibit 1

 16   Email from Stephen Patten to the Commission, 19 March 2019 at 4.50pm.

 17   Fair Work Act 2009 (Cth), s.545(2)(c)

 18   C2018/1439

 19   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation PR933892, (2003) 125 IR 88; citing National Australia Bank Ltd v Bond Brewing Holdings Ltd (1990) 169 CLR 271

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