Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Carter Holt Harvey Wood Products Australia Pty Ltd
[2011] FWA 101
•11 JANUARY 2011
[2011] FWA 101 |
|
DECISION |
Fair Work Act 2009
s.425 - Application to suspend protected industrial action, cooling off
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Carter Holt Harvey Wood Products Australia Pty Ltd
(B2010/3745)
COMMISSIONER BLAIR | MELBOURNE, 11 JANUARY 2011 |
Application to suspend protected industrial action, cooling off.
[1] On 23 December 2010 I rejected an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) for an Order to suspend or terminate protected industrial action.
[2] This decision, now edited, was given in transcript at the conclusion of proceedings on 23 December 2010.
[3] This is an application under section 425 of the Fair Work Act 2009 (the Act). Section 425(1) states;
“FWA must make an order suspending protected industrial action for a proposed enterprise agreement that is being engaged in if FWA is satisfied that the suspension is appropriate taking into account the following matters.
(a) whether the suspension would be beneficial to the bargaining representatives for the agreement because it would assist in resolving the matters at issue;
(b) the duration of the protected industrial action;
(c) whether suspension would be contrary to the public interest or inconsistent with the objects of the Act;
(d) any other matters that FWA considers relevant.”
[4] It is interesting that the application in this matter is made by the CEPU where generally applications under section 425, as in Mammoet Australia Pty Ltd v Construction, Forestry, Mining and Energy Union 1, are generally made by employers.
[5] Having considered the material provided to the Tribunal, and noting that in correspondence issued on 16 December 2010, the CEPU proposed 11 forms of industrial action, Mr Follett on behalf of the respondent in the matter, indicated that the only action available to the employer was in fact a lock-out action.
[6] Taking into account the requirements of the Act, the Tribunal is mindful of the comments made by His Honour Deputy President McCarthy in the Mammoet case where he says;
“I do agree with the CFMEU that unless there was a finding that a cooling off period would assist in the resolution of the matter then it would be unlikely that it would be appropriate to issue an order.” 2
[7] His Honour further said paragraph 31;
“Mammoet argued that the absence of the ability to take industrial action would be beneficial as it would provide an environment free of industrial action and therefore have the effect that the bargaining representatives concentrating on their differences” 3
[8] This was the argument relied upon by the CEPU in this matter.
[9] His Honour continued;
“The CFMEU on the other hand argued that it was the exercise of the capacity to take industrial action and indeed the taking of it that had the affect reducing the differences between the parties and making an agreement more likely.” 4
[10] The key point at hand in this particular matter, and Mr Follett touched on this, is that the CEPU seek to have a separate agreement, opposed to the CFMEU agreement, and the company has made it abundantly clear that they have no intentions of entering into a separate agreement either with the CEPU or any other union.
[11] Although it is in regards to an application under section 424, the principles of the decision of the Full Bench in the National Tertiary Education Union v University of South Australia 5 in the Tribunals view apply to section 425. The Full Bench states;
“The Bill recognises that employees have the right to take protected industrial action during bargaining. These measures recognise that while protected industrial action is legitimate during the bargaining for an enterprise agreement, there may be cases where the impact of that action on the parties, or on third parties, is so severe that it is in the public interest, or even potentially the interests of those engaging in the action that the industrial action cease at least temporarily.
It is not intended that these mechanisms be capable of being triggered where the industrial action is merely causing an inconvenience. Nor is it intended that these mechanisms be used generally to prevent legitimate protected industrial action in the course of bargaining.” 6
[12] In taking into account the submissions of the parties and the references I’ve made to in the Mammoet case and the University of South Australia, the Tribunal is not satisfied that it should exercise its discretion and issue the orders suspending the industrial action on the part of both parties, therefore the application is rejected.
COMMISSIONER
Appearances:
K Reidy and P Mooney for the applicant
M Follett with S Millen for the respondent
Hearing details:
2010
Melbourne
December 23
1 [2010] FWA 4389
2 [2010] FWA 4389 at para 27
3 [2010] FWA 4389 at para 31
4 [2010] FWA 4389 at para 31
5 [2010] FWAFB 1014
6 [2010] FWAFB 1014 at para 8
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