Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Laing O'Rourke Australia Construction Pty Ltd

[2013] FWC 4498

[2013] FWC 4498

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Laing O'Rourke Australia Construction Pty Ltd
(C2013/4563)

The Australian Workers’ Union
v
Laing O'Rourke Australia Construction Pty Ltd
(C2013/807)

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 8 JULY 2013

Summary: issue about compliance with consultation clause - whether jurisdiction for exercising discretionary powers (making a recommendation).

[1] On 8 July 2013 - at the same time as this decision was published - I issued a Recommendation to the parties (as a private document).

[2] The Recommendation concerned the suspension by Laing O’Rourke Australia Construction Pty Ltd (“the Employer”) of its APLNG project work across various work sites effective from 30 May 2013 until 6 June 2013. The AWU and the CEPU both lodged dispute applications under s.739 of the Fair Work Act 2009 (“the Act”). Their applications were in mirror terms (and I will discuss them below).

[3] The work performed across the sites is regulated by the Laing O’Rourke CSG, and Associated Infrastructure Greenfields Agreement 2011-2015 (“the Agreement”).

[4] Section 595 of the Act stipulates the Commission’s powers in respect of disputes, and it relevantly includes the following:

(1) The FWC may deal with a dispute only if the FWC is expresslyauthorised to do so under or in accordance with another provision of this Act.

(2) The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:

(a) by mediation or conciliation;

(b) by making a recommendation or expressing an opinion.

[…]

[5] Following the dispute conference, which was held on 31 May 2013, I proposed to issue a Recommendation and afforded an opportunity for the parties to peruse the Recommendation in advance of it being issued (as there were a number of factual issues that needed to be reviewed).

[6] Following that step being taken, the Employer - for reasons set out below - came to assert that the Commission had no jurisdiction to issue the Recommendation as the union parties to the dispute applications had failed to comply with the dispute resolution procedure in the Agreement.

[7] I have been provided with written responses and various other materials from the parties about what has transpired between them and will by this decision determine the issue of jurisdiction.

Background

[8] The suspension arose from a view taken by the Employer that there had been an increase in safety incidents across the relevant sites in recent times and this had to be addressed. The Employer took the further view that unless awareness of its safety systems was re-emphasised immediately through retraining to supervisors and leading hands, the health and safety of its direct employees and those employees of sub contractors would be put at risk. The course it chose was to act quickly before any such incident could occur, and before its liabilities were exposed and any injury was incurred.

[9] As alluded to above, the Employer came to request that I not exercise any powers arising from the dispute conference for reason it alleged (at a time after the conference) that I had no jurisdiction to do so as there had been no compliance with the dispute resolution procedure under the terms of the Agreement in relation to the claim the Employer had breached the consultation clause in its Agreement.

[10] The Employer went on to argue (notwithstanding there had been a lengthy discussion of the issues and that there had been no objection to a Recommendation being issued at the conference) that no Recommendation be made until the Commission had had the benefit of hearing “the full details of the dispute.”

[11] Ultimately, the position as I saw it was put to the parties in my email to them of 4 June 2013, which relevantly provided as follows:

As is apparent, the Employer opposes the Recommendation on the basis that “the dispute, raised by the parties, was regarding payment to employees over the period they would not be required to work.”

It seems to me that both applications, which were in identical terms, stated as follows at paragraph 4.3: “The [unions] do not believe that the Employer has complied with the provisions of the Agreement.” Paragraph 4.4 goes on to say: “Specifically, the [unions] believe [...] that the Employer cannot stand down employees in the terms outlined in the email by Mr Simonds.

Further, the employer failed to consult the Unions in relation to this proposal, which is a “major change ... [that] is likely to have a significant effect on the Employees (see Clause 8.5.1) [of the Agreement].

The relief the Unions sought (by way of the application) was the payment of the rostered hours for the employees they claimed had been “stood down”. This relief was extended to the unions prior to the conference at the Employer’s initiative.

The conference proceeded at the unions’ request in relation to the adequacy of consultation in major change contexts. The unions sought relief over the course of the conference in relation to that matter (which was the only subject of the conference).

Applications ordinarily will morph in relation to the relief to be given over the course of discussion (though they must, of course, arise from an articulated dispute – as was the case here – that has been subject to the disputes clause in the relevant agreement).

The Employer did not claim at the time of the conference that the issue of consultation, which formed part of the subject matter of the articulated dispute had not been progressed through the escalation procedures in the dispute resolution clause. Thus the draft Recommendation was issued on the terms discussed.

It appears to me that the issue of consultation was made sufficiently clear by the terms of the applications, and the subject matter of the conference, which was not opposed. The draft Recommendation has a direct connection to the application, bears on a clause in the Agreement but does not seek to change the Agreement as was made and the Employer’s obligations under that Agreement. It appears to me that the making of a Recommendation is jurisdictionally competent in relation to these known circumstances.

However, if the Employer now contends - and it seems that it does - that the issue of the adequacy of the consultation processes in relation to the “stand down” were not carried out prior to the application being dealt with by the Commission, then the making of a Recommendation would be outside of jurisdiction. If this was the case, I could not make a Recommendation until such time as the parties had conferred at the appropriate levels about the issue of consultation.

The facts of this process having been completed are unknown to me. Given there was no resistance to the dispute application, its terms, and the subject of the conference on 31 May 2013, I have assumed the consultation processes had been subject to the disputes clause in the Agreement. I now await the confirmation of the parties that this assumption was properly founded, or that further discussions (perhaps with the aid of the draft Recommendation) are afoot, and that I will be advised when they are completed (and whether the issue of the draft Recommendation must be revisited).

[12] The unions and the Employer subsequently provided to me information from their respective perspectives about what had transpired in the course of their discussions prior to the dispute being escalated to the Commission.

[13] As best as I can ascertain matters, and despite the claim to the contrary by the Employer, there was limited, practical opportunity for the initial steps in the dispute resolution clause to be given effect. This was because the employees had been directed to leave site from the time of the pre-start announcement, and there was little scope for local, site level discussions once the significant change decision had been implemented.

[14] I add that the CEPU for its part did assert that its delegates were advised some minutes before the pre-start meeting (referred to above) and advised of the changes that were to occur. At that time, it appears that at least one of the CEPU’s delegates agitated the issue of the absence of notification.

[15] I cannot discern from what is before me that there was ever a practical opportunity in the circumstances for the site level steps in the disputes agreement to have been given full effect, though arguably the pre-start meeting with the delegates may of its own right have fulfilled those requirements to some extent. It does not seem, in any event, that the issues raised by the delegates took the matter any further or had any effect on the Employer’s decision as it had made (and given the safety-related circumstances, it would be surprising if they had).

[16] Time would have constrained opportunities regardless. What happened on the morning of 30 May 2013 was that the employees were informed of the circumstances at 6:30 AM, required to pack up all tools, equipment and plant, and return them to stores. Thereafter employees were required to return to their accommodation at 9:00 AM (to pack up where they were going on R&R the next week), and then vacate the accommodation at 10:00 AM (unless staying in camp for the duration).

[17] This means that the only effective opportunity (or next step) for the dispute resolution procedure to come into effect was at the organisational level - for example, between the State Manager and higher level officials of the unions.

[18] But had the allegations about the breach of the consultation provisions of the Agreement been the subject of such discussions at this step in the disputes procedure, which is the point agitated by the Employer?

[19] I think that the elemental exchanges early on the morning of the site closure (evidenced at least through the emails copied to the Commission as part of the file), between the Employer and the CEPU (through the agency of the Assistant State Secretary) and the AWU (through the agency of the District Secretary) and the Employer, effectively were steps taken in accordance with the disputes procedure.

[20] The emails demonstrated that the exchanges between the unions and the Employer concerned the lack of consultation over the Employer’s decision making (which was the subject of this dispute). The Assistant State Secretary of the ETU raised the issue of the absence of consultation in particularly prosaic terms with the Employer’s Regional Employee Relations Manager. A telephone message had been left before that time on the same Manager’s mobile telephone.

[21] The District Secretary of the AWU requested, amongst other things, an explanation as to why the Employer had failed to consult regarding closing the sites for work.

[22] It appears to me that these were exchanges of a kind that met the requirements of sub clause 8.2(d) of the disputes procedure in the Agreement (which provides for an escalation from the site level to higher levels of management and senior union officials). The consultation issue, which formed part of the emails, was not resolved at the time (and was not answered expressly in the email reply by the Employer’s Regional Employee Relations Manager later that day).

[23] I am aware that there may have been other telephone conversations between the AWU, the CEPU and the Employer over the course of the morning, but none of the parties claimed the content of those calls went to the consultation issue. The email of later that day (referred to immediately above) did not suggest any prior resolution of the consultation issue.

[24] Therefore, given that the circumstances did not permit the ordinary operation of the site level disputes procedures (sub clause 8.2(a)-(c) of the Agreement), sub clause 8.2(d) had been given effect regardless (in respect of the consultation issue the subject of the dispute application). As mentioned above, that issue remained unresolved at the time of the application.

[25] Consequently, given a conference also has been completed in relation to the dispute applications, I consider the jurisdiction to make the Recommendation to be available to me.

SENIOR DEPUTY PRESIDENT

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