Downer EDI Rail Pty Limited v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

[2012] FWA 5068

[2012] FWA 5068

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.

Downer EDI Rail Pty Limited
v
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
(C2012/4138)

COMMISSIONER STANTON NEWCASTLE, 13 JUNE 2012

Alleged unprotected industrial action proposed by employees of Downer EDI Rail Pty Limited at its Cardiff facility - application for an order to stop industrial action - whether threatened, impending or probable conduct is industrial action.

[1] This decision concerns an application under s.418 of the Fair Work Act 2009 (the Act) by Downer EDI Rail Pty Limited for an order that threatened, impending or probable industrial action scheduled to take place today, 13 June 2012, not occur or not be directed, authorised or encouraged.

[2] The application was filed late yesterday afternoon and was subsequently listed for hearing and conference by telephone link at 5.00pm. The threatened, impending or probable industrial action concerned a decision taken at three lunchtime mass meetings yesterday that employees stop work at 10.00am today and attend an AMWU rally commencing at 11.30am prior to attending the Unions NSW/Newcastle Trades Hall Council protest against proposed changes to workers compensation benefits at 12.30pm.

[3] Shortly stated, s.418 of the Act requires the Tribunal to make an order that all forms of industrial action shall stop, not occur or not be organised (as the case may be) where it appears to the Tribunal that industrial action by one or more employees that is not protected industrial action is happening or is threatened, impending or is probable or is being organised.

[4] Having heard the parties and considered the witness statement filed by Mr Sven Govender, General Manager Operations - Cardiff, Downer EDI Rail Pty Limited, I formed the view during the proceedings last night that the threatened, impending or probable industrial action subject to this application was industrial action that clearly fell within the definition of “industrial action” in s.19 of the Act. Accordingly, the Tribunal made an Order (PR525085) substantially in the terms sought to operate, for reasons set out below, from 8.00am today to apply for 7 days.

[5] During the course of the hearing, a series of private conferences were convened to establish whether there was a capacity to resolve the matter in conciliation.

[6] The parties subsequently agreed to the following course of action:

i. Downer EDI would convey the terms of the Order made during the course of ‘tool box’ meetings commencing at 6.00am, Wednesday, 13 June 2012.

ii. A communications meeting would be convened at 7.00am to enable the AMWU to put certain proposals to employees that would not require employees to engage in industrial action as defined in s.19 of the Act. Those proposals included an option that an agreed number of employees could apply for paid leave to attend the rally and protest scheduled to commence from 11.30am, Wednesday, 13 June 2012.

[1] Shortly after 8.00am this morning, the Tribunal was advised that employees had voted to send a delegation to the rally and protest with normal work continuing for approximately 200 direct employees engaged at the Cardiff facility. Members of the delegation would be granted annual leave.

[2] This matter was heard under difficult circumstances. The issues subject to the application were both urgent and serious. I congratulate the parties for adopting a mature approach and resolving their differences ultimately in a consultative and co-operative manner. Given this application was filed in Brisbane shortly before 4.00pm yesterday, the prompt action and efficiency demonstrated by both the Queensland and New South Wales Service Teams is highly regarded and appreciated.

COMMISSIONER

Appearances:

Mr S Prince, of Counsel, instructed by Ms C O’Connor, solicitor for Downer EDI Rail Pty Limited.

Mr J Kennedy, Legal Officer and Mr J O’Neill, State Organiser for the AMWU.

Hearing details:

2012
Newcastle
12 June

Printed by authority of the Commonwealth Government Printer

<Price code A, PR525157>