CPB Contractors Pty Limited T/A CPB Contractors v Construction, Forestry and Maritime Employees Union
[2024] FWC 2715
•30 SEPTEMBER 2024
| [2024] FWC 2715 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.418—Industrial action
CPB Contractors Pty Limited T/A CPB Contractors
v
Construction, Forestry and Maritime Employees Union
(C2024/6824)
| DEPUTY PRESIDENT LAKE | BRISBANE, 30 SEPTEMBER 2024 |
Application for stop order for unprotected industrial action – mass meeting – stop work – order issued,
On 27 September 2024, CPB Contractors Pty Ltd (CPB) made an application to the Fair Work Commission (the Commission) seeking to stop industrial action by the Construction, Forestry and Maritime Employees Union (CFMEU) under s.418 of the Fair Work Act 2009 (the Act).
CPB were represented by Mr James Ford of Counsel and Mr Elliot Dalgleish appeared for the CFMEU. The CFMEU objected to CPB being represented. However, given the nature of industrial action in this matter is sufficiently complex, representation in this instance would allow the matter to run more efficiently. I granted permission for the Applicant to be represented at Hearing under s.596 of the Act.
The matter was allocated to me on 27 September 2024. Section 420(1) of the Act requires that as far as practicable, an application under s.418 be determined within 2 days after it is made. I listed the matter for hearing on 27 September 2024 as the Applicant alleged that industrial action “is happening, is threatened, impending or probable or is being organised.”
Upon the conclusion of the hearing, I made an Order to stop industrial action as it was not protected industrial action, and I provide my reasons below.
Is the proposed action undertaken by the CFMEU constitute industrial action?
Section 19 of the Act provides as follows:
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.
The relevant Explanatory Memorandum which accompanied the Fair Work Bill 2008 (Cth) stated at para 90 that:
“The legislative note at the end of subclause 19(1) alerts the reader to the decision of the AIRC in Automotive Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Ltd [2004] AIRC 1254. The note is included to clarify that the definition of industrial action is only intended to cover actions that have an industrial character and occur within the area of disputation and bargaining.”
The decision of French J in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Laing (1998) 89 FCR 17, affirmed in Adams v Director of the Fair Work Building Industry Inspectorate (2017) 258 FCR 257 at [46]-[60] discusses the term “industrial action”. The term “industrial action” is widely defined:
“So communication can be industrial action. And industrial action, verbal or non-verbal, can be communication in a wider sense. The withdrawal of labour because of an industrial dispute may be seen as a signal from employee to employer of a grievance or as underlining, from the employee’s perspective, the seriousness of a grievance which has been communicated verbally. To say that industrial action sends a signal to the employer or communicates in this sense is not to take it out of the class of conduct to which s 127 applies.
Industrial action may be caught by the section notwithstanding that it is intended to send a signal or communicate some message other than about a dispute with the employer. It is not necessary for the application of s 127 that it relate to an industrial dispute if it relates to work regulated by an award or a certified agreement. Thus, employees might stop work without the authority of their employer and in breach of their contract of employment in order to attend a rally at Parliament House or some other form of demonstration or public meeting to express views about some issue not arising out of their relationship to their employer. In such a case where their work is regulated by an award or a certified agreement, s 127 is capable of application.”
On 26 September 2024, a right of entry notice was provided by Mr Dean Mattas from the CFMEU that he would enter the Gabba site at 12:00pm on 27 September 2024. A CFMEU delegate communicated with the workers, stating that there was a meeting at 12:30pm to 46 workers, of whom 9 were direct employees of CPB.
Mr Ritchie Atuluola, who is a CFMEU delegate at the Gabba site, told the workers on site that there were a couple of CFMEU officials coming to site to “address everyone on the vote at 12:00pm or 12:30pm”.
There were no scheduled mealtimes or breaks around this time for the direct employees, or the subcontractors. The employees and workers at the Gabba tunnels have their breaks scheduled at 9:30am and 1:00pm. Sub-contractors have different breaks.
CCTV footage was provided of workers from the CFMEU gathering before 1:00pm in what appears to be a “stop work”. Upon the evidence before me, I am satisfied that there were employees in attendance at this meeting who were not on their scheduled lunch or smoko break.
Given that there were communications sent by the CFMEU delegates about a grievance of the proposed Enterprise Agreement during working hours, this constituted industrial action under s.19(1)(a) of the Act, given that action was “industrial” in character, and that there was an adoption of a practice in relation to work by these workers in a delay of the performance of work.
Has the proper notice of the industrial action been given?
Section 414 of the Act provides as follows:
414 Notice requirements for industrial action
Notice requirements--employee claim action
(1) Before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.
(2) The period of notice must be at least:
(a) subject to paragraph (b):
(i) if subparagraph (ii) of this paragraph does not apply--3 working days; or
(ii) if the proposed enterprise agreement is a multi - enterprise agreement--120 hours; or
(b) if a protected action ballot order for the employee claim action specifies a longer period of notice for the purposes of this paragraph--that period of notice.
There are no minimum notice requirements in the protected ballot action order and therefore it was expected that the CFMEU give at least 3 working days’ notice regarding their stop work/industrial action to CPB. Notice of these meetings were not given to CPB and therefore did not meet the proper notice requirements under s.414 of the Act.
Order
As I am satisfied that the actions undertaken by the CFMEU are not protected industrial action, and the action is happening, and is being organised, it is appropriate to make an Order to stop the industrial action under s.418 of the Act. I am satisfied that given the events that occurred at the Gabba site, it is probable that similar industrial action is being planned to occur at the Albert Street site.
“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.
Note: For interim orders, see section 420.
(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.”
In United Voice v Foster’s Australia Limited,[1] the Full Bench noted that there must be a “rational connection between the period of the order and the purpose for which it was required to be made”. With this consideration, I have made an order that the CFMEU stop industrial action in the form of “stop work” and that the workers cannot engage in this action until after 2 October 2024, when the Agreement access period is completed.
An Order has been issued to this effect on 27 September 2024.
DEPUTY PRESIDENT
Appearances:
J. Ford as Counsel for the Applicant
E. Dalgleish appearing for the Respondent
Hearing details:
27 September 2024
Brisbane
Hearing via Microsoft Teams
[1] United Voice v Foster’s Australia Limited[2014] FWCFB 4104.
Printed by authority of the Commonwealth Government Printer
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