Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Chubb Fire & Security Pty Ltd T/A Chubb Fire
[2021] FWC 3682
•25 JUNE 2021
| [2021] FWC 3682 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 418 - Application for an order that industrial action by employees or employers stop etc
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Chubb Fire & Security Pty Ltd T/A Chubb Fire
(C2021/3577)
DEPUTY PRESIDENT ANDERSON | ADELAIDE, 25 JUNE 2021 |
Alleged industrial action at Chubb Fire & Security Pty Ltd – whether employer conduct in face of employee claim action is industrial action – return of company vehicles and mobile phones – found not industrial action – removal from on-call roster found to be industrial action – no utility in making order
[1] On 24 June 2021 (10.57.00am) the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) applied under section 418 of the Fair Work Act 2009 (FW Act) to stop alleged industrial action by Chubb Fire & Security Pty Ltd (Chubb) that is said not to be protected.
[2] The Commission must, as far as practicable, determine such applications within two days after being made 1.
[3] On 24 June 2021 I issued directions requiring both the CEPU and Chubb to file materials in advance of a hearing.
[4] I heard the matter by video on 25 June 2021.
Facts
[5] The CEPU and Chubb are negotiating a proposed enterprise agreement for persons employed as sprinkler fitters (the relevant employees). There are currently five persons in the group. The proposed agreement would be a renewal of the existing Chubb Fire and Security (South Australia) Sprinkler Fitters Collective Agreement 2016-2020.
[6] By decision and order of the Commission on 23 April 2021 the CEPU was authorised to hold a protected action ballot of the relevant employees.
[7] Results of the ballot were declared by the ballot agent on 4 June 2021. Industrial action was authorised.
[8] On 21 June 2021 the CEPU gave Chubb “Notice of Intended Employee Claim Action” 2. Various forms of industrial action were notified to occur between 6.00am on Friday 25 June 2021 until 7.00am Saturday 26 June 2021:
“Nature of intended industrial action:
• A ban on the performance of work commencing at 6am on Friday the 25/06/21 and ceasing at 6pm Friday the 25/06/21.
• A ban on the performance of overtime commencing at 3pm on Friday the 25/06/21 and ceasing at 7am on Saturday the 26/06/21
• A ban on the performance of callouts commencing at 7am on Friday the 25/06/21 and ceasing at 7am on Saturday the 26/06/21
• A ban on the use of mobile phones commencing at 7am on Friday the 25/06/21 and ceasing at 7am on Saturday the 26/06/21
• A ban on the performance of shiftwork commencing at 6pm on Friday the 25/06/21 and ceasing at 6am on Saturday the 26/06/21”
[9] On the morning of Thursday 24 June 2021 (confirmed in writing at 1.35pm that day) Chubb verbally advised employees and the CEPU that:
“employees are to return their company issued tool of trade motor vehicles and mobile phones to the office at the end of their rostered shifts today, if they should choose to participate in the proposed industrial action on the 25th June 2021. Also there is no longer a requirement for those individuals that were rostered to be on Call On to be available for on Call from 24 June to 27th June.”
[10] The relevant employees ceased their rostered shift at 3.00pm on Thursday 24 June 2021.
[11] But for the industrial action notified, the relevant employees were due to next be rostered at 6.00am or 7.00am Friday 25 June 2021.
[12] Further, one employee from within the relevant group (referred to as Employee A) was rostered to be on-call between 3.00pm Thursday 24 June 2021 until 7.00am Friday 25 June 2021 (from that time the notified industrial action concerning a ban on call-outs would commence).
[13] Upon commencing employment with Chubb, each of the relevant employees were supplied a company vehicle and mobile phone subject to the terms of their contract of employment: 3
“You will be allocated a commercial Company vehicle as a tool of trade which is to be used for legitimate business use only…The Company reserves the right to vary of cease usage of the vehicle for any reason during your employment, including during periods of leave”; and
“Mobile phones are provided as a business tool at the discretion of the Company and your entitlement of the phone may be cancelled or modified at any time. The Company reserves the right to cease providing you with a Company mobile phone at any time, including where it is alleged that you have breached Company policy in relation to phone usage or any other matter.”
[14] At 3.00pm on 24 June 2021, upon the conclusion of their shift, each of the relevant employees returned their Company vehicle and Company supplied mobile phone to Chubb as had been directed by their employer.
[15] At or about 3.00pm on 24 June 2021, Employee A was advised by Chubb that the employee would not be required to be on-call from 3.00pm 24 June 2021 until 7.00am 25 June 2021, as the employer had made alternate arrangements to cater for on-call requests by customers during the notified industrial action.
Submissions
[16] The CEPU seek a stop order under section 418 of the FW Act, to stop what it says is industrial action by Chubb which is threatened, impending, probable or that is happening.
[17] Three forms of action taken by Chubb are said by the CEPU to be unprotected industrial action:
• the direction that the relevant employees be required to return their Company supplied vehicle at the end of the shift on 24 June 2021;
• the direction that the relevant employees be required to return their Company supplied mobile phone at the end of the shift on 24 June 2021; and
• the direction by Chubb to Employee A that this employee not be rostered on-call between 24 to 27 June 2021.
[18] The CEPU submit that the employer’s conduct is retaliatory conduct but is not protected as employer response action under the FW Act.
[19] Chubb oppose the application. It submits that its decision to withdraw cars and phones and to not require employees to be on-call are legitimate business decisions taken as a consequence of the threatened industrial action. It says that the conduct is not industrial action within the meaning of the FW Act and cannot therefore be the subject of a stop order under section 418.
Consideration
[20] Section 418 provides:
“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.
(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.” (notes omitted)
[21] Thus, section 418 requires the Commission to make an order stopping any industrial action engaged in by an employee or an employer that is not protected. The scheme of the Act is only to permit an employee or an employer to engage in protected industrial action as defined in sections 408, 409, 410 and 411. All other industrial action is subject to being stopped by order of the Commission pursuant to section 418.
[22] It is clear that a finding that industrial action is happening, or is threatened, impending or probable, or is being organised, is necessary in order for the Commission to be able to make a stop order.
Is the action by Chubb “employer response action”?
[23] The statutory scheme provides for “employer response action” in response to employee claim action (whether the employee claim action is protected or not).
[24] Chubb does not assert that its conduct is “employer response action”. I agree that it cannot be so characterised. Whilst it was taken in consequence of the Notice of Employee Claim Action, it was not notified as employer response action within meaning of section 411 of the FW Act. It is therefore not protected by section 408(c), were it industrial action.
Is the action by Chubb “industrial action”?
[25] “Industrial action” is defined by section 19 of the FW Act:
“19 Meaning of industrial action
(1) Industrial action means action of any of the following kinds:
(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d) the lockout of employees from their employment by the employer of the employees.
(2) However, industrial action does not include the following:
(a) action by employees that is authorised or agreed to by the employer of the employees;
(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;
(c) action by an employee if:
(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.” (notes omitted)
[26] Section 19 contemplates that an employer may take industrial action in the form of a lock-out by preventing employees from performing work under their contracts of employment without terminating those contracts: sections 19(1)(d) and 19(3).
[27] It is also possible that a ban or limitation by an employer on the “performance of work” or on the “acceptance of or offering for work for an employee” is industrial action: section 19(1)(b).
[28] However, not all conduct by an employer in the context of or in preparation for employee claim action is industrial action. As noted by a Full Bench of the Commission in CFMEU v Anglo Coal (Capcoal Management) Pty Ltd t/a Capcoal: 4
“Employees who engage in protected industrial action are “protected” in that their action is not unlawful under the Act and that they are immune from certain civil and criminal liability for engaging in the action. This does not, however, mean that an employer of employees who take protected industrial action is not able to respond to protected industrial action, or to circumstances created by such action, in a manner that addresses its legitimate business interests, provided it meets its obligations under the Act.”
[29] Those obligations include the obligation to bargain in good faith (section 228(1)) and the obligation to not take adverse action because a person has a workplace right (Part 3-1).
[30] In previous cases, the Commission has observed that employer conduct in the face of employee claim action can fall on either side of the definition of industrial action. For example, an airline responding by grounding a fleet has been held to have made a commercial decision 5. Conversely, it has been said that employers will be at risk of breaching good faith bargaining obligations if they make employees redundant without having legitimate business reasons for doing so6.
[31] It is necessary to consider each of the three categories of conduct by Chubb individually as to whether the conduct falls within the definition of “lockout” in section 19(3) or otherwise within section 19(1) (and are not excluded by section 19(2)).
Return of Company Vehicles
[32] Other than with respect to Employee A (considered below), Chubb’s requirement that the relevant employees return the company vehicle at the end of the shift immediately preceding the commencement of employee claim action did not “prevent the employees from performing work under their contracts of employment”. Given that the company vehicle was provided as a tool of trade and not for personal use, its return cannot be said to have “prevented” work in any material sense because the employees were not required to work between 3.00pm 24 June 2021 and the commencement of employee claim action.
[33] The direction to return the company vehicle was not a “lockout” within the definition of “industrial action” in section 19(3).
[34] Nor was the direction to return the company vehicle “a restriction on the performance of work or on the offer or acceptance of work” within the meaning of section 19(1)(b) given that no work by the relevant employees was or was intended to be performed or rostered in this period.
[35] In any event, were section 19(1)(b) satisfied, it is tolerably arguable that the terms of the contracts of employment of the relevant employees are such that each agreed to the provision of the vehicle on the basis that it could be withdrawn at Chubb’s discretion including in these circumstances – though I need not decide that question.
Return of Mobile Phones
[36] I draw the same conclusion, and for the same reasons, with respect to the provision of the mobile phones. They were provided as a tool of trade. As (other than in the case of Employee A) no work was performed or rostered between the end of the shift on Thursday 24 June 2021 and the commencement of employee claim action, the phone was not capable of being used as a tool of trade in this period.
[37] The direction to return the mobile phone was not a “lockout” within the definition of “industrial action” in section 19(3) nor a restriction on the performance of work or on the offer or acceptance of work within the meaning of section 19(1)(b).
Removal from call-out
[38] None of the relevant employees other than Employee A were required to be on-call between the end of the shift on Thursday 24 June 2021 and the commencement of employee claim action the next day. For those persons, Chubb’s action cannot be characterised as preventing or restricting the performance of work or the offer or acceptance of work within the meaning of section 19(1)(b) or 19(3) of the FW Act.
[39] However, the position with respect to Employee A is different.
[40] Employee A was rostered to be on-call between the end of the shift on Thursday 24 June 2021 and the commencement of employee claim action the next day. Employee A would have, but for the conduct of Chubb, secured whatever benefit of being on-call provided for by the relevant industrial instrument, and been required to respond to any call-out that evening or following morning by using the company supplied mobile phone and been entitled to use the company vehicle to attend to any call-out in this period.
[41] In these circumstances, I am satisfied that, in issuing the direction that Employee A was no longer required to be on-call from 3.00pm 24 June 2021 until the commencement of employee claim action at 6.00am the next day and in requiring Employee A to return the company vehicle and mobile phone at 3.00pm 24 June 2021, Chubb limited or restricted the performance of work and the acceptance of or offering for work by Employee A in this period.
[42] Put more colloquially, with respect to Employee A, Chubb jumped the gun; what would have been a legitimate business decision to make alternate arrangements for on-call servicing of customers during the period of employee claim action, was industrial action within the meaning of the FW Act given that those arrangements were activated some sixteen hours before the employee claim action commenced. There is no evidence before me that this need have occurred such that the alternate arrangements legitimately put in place compelled the withdrawal of Employee A’s on-call roster.
[43] For the sake of completeness, I add that Chubb’s conduct relating to Employee A was industrial action within the meaning of section 19(1)(b) and not obviated by any of the exclusions in section 19(2).
[44] As the conduct relating to Employee A was industrial action and as it was not protected employer response action under the FW Act, it was unprotected action capable of being the subject of a stop order under section 418.
Conclusion
[45] I find that, other than with respect to Employee A, neither the requirement to return the company vehicle nor to return the company supplied mobile phone was industrial action within the meaning of section 19 of the FW Act. It cannot therefore be the subject of a stop order under section 418 of the Act.
[46] In arriving at this conclusion I emphasise two points.
[47] Firstly, I have not dealt with, and make no observation on whether Chubb’s conduct in these respects was consistent with the statutory good faith bargaining obligation or otherwise could give rise to issues under Part 3-1 of the FW Act (general protections).
[48] Secondly, it is well arguable by the CEPU that if either the company vehicles or the company supplied mobile phones are not returned to the relevant employees when all or any of them make themselves available to next work as rostered (that is, once the employee claim action ceases), the employer may be engaging in industrial action within the meaning of section 19 of the FW Act and that action may be unprotected unless it can be established that the supply of such tools is genuinely a discretionary benefit that would not have been provided in that period.
Disposition
[49] The relevant jurisdictional fact for orders to be made under section 418 of the FW Act (being that unprotected industrial action is happening or being threatened, pending, probable or being organised) has not been established except with respect to Employee A.
[50] With respect to Employee A, the industrial action is not happening. It has happened. The period during which the action happened was the on-call period between 3.00pm 24 June 2021 and the end of the on-call period and commencement of employee claim action at 7.00am 25 June 2021.
[51] Chubb’s direction that the relevant employees (including Employee A) not be on-call was expressed by Chubb to apply “from the 24th June to 27th June.” There is no evidence before me that Employee A was to be on-call after the expiry of the notified employee claim action and until the end of calendar day 27th June 2021.
[52] In these circumstances, it is not possible to conclude that the industrial action relating to Employee A, whilst unprotected, is either “happening” or “threatened, impending or probable” or “being organised” (sections 418(1)(a)(b) and (c)).
[53] As these are the statutory preconditions for the making of a stop order, and as those pre-conditions do not exist at the time a prospective order would be issued, a stop order cannot be made.
[54] Further, having made clear my determination on the application, there is no utility in making a retrospective order (if there were power to do so) with respect to Employee A.
[55] The CEPU’s application is disposed of on this basis.
DEPUTY PRESIDENT
Appearances:
Ms J Rogers and Ms E Hennessy, for and on behalf of, theCommunications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
Mr I Dixon, on behalf of, Chubb Fire & Security Pty Ltd T/A Chubb Fire
Hearing details:
2021
Adelaide (by video conference)
25 June
Printed by authority of the Commonwealth Government Printer
<PR731069>
1 Section 420(1)
2 R3
3 R1
4 [2017] FWCFB 317 at [38]
5 Australian and International Pilots Association v Fair Work Australia [2012] FCAFC 65 at [53] per Lander J
6 CFMEU v Anglo Coal (Capcoal Management) Pty Ltd t/a Capcoal [2017] FWCFB 317 at [37]
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