Downer EDI Rail Pty Ltd v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
[2012] FWA 9947
•23 NOVEMBER 2012
[2012] FWA 9947 |
|
DECISION |
Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.
Downer EDI Rail Pty Ltd
v
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
(C2012/6110)
COMMISSIONER BULL | SYDNEY, 23 NOVEMBER 2012 |
Application to stop etc unprotected industrial action at Downer EDI Rail Pty Ltd.
[1] On 22 November 2012, Downer EDI Rail Pty Ltd (Downer) filed an application pursuant to s.418 of the Fair Work Act 2009 (the Act). The matter was listed for hearing that evening.
[2] An order was issued substantially in the terms sought by Downer to cover the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the employees taking unprotected industrial action.
[3] Mr Dearden of Counsel (his appearance was not opposed) appeared on behalf of Downer. The AMWU was represented by Mr Walkaden.
[4] Downer submitted that its employees at the Rail Freight Maintenance Facilities at Port Kembla were currently taking unprotected industrial action. Further industrial action was threatened or probable and was being organised by the AMWU.
[5] The employees concerned were said to be covered by the in-term Downer EDI Rail Freight Maintenance Enterprise Agreement 2010 - 2013 (Enterprise Agreement). The AMWU and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) were covered by the Enterprise Agreement as per s.183 of the Act. The Enterprise Agreement was approved by Fair Work Australia (FWA) on 8 July 2011 with a nominal expiry date of 2 December 2013.
[6] The AMWU did not consent to the order being issued and made no admissions or concessions on the facts as alleged by Downer. The AMWU submitted that the Applicant must prove to the satisfaction of the Tribunal that unprotected industrial action is happening, threatened or probable.
[7] The Applicant advised that its day shift employees had ceased work at approximately 12:00pm and the afternoon shift employees had also withdrawn their labour, despite having been told the matter was before FWA.
[8] In demonstrating its case, the Applicant relied on the evidence of Mr Anthony Spain, Facilities Manager - Port Kembla. The AMWU opposed Mr Spain giving evidence on the basis that he could not be sworn over the telephone, nor could his identity be verified. These objections were dismissed by the Tribunal.
Evidence of Mr Spain
[9] Mr Spain gave evidence by telephone from the administration office at the Applicant’s Port Kembla work site and he was sworn in over the telephone.
[10] Mr Spain told the Tribunal that the Port Kembla Facility was responsible for the maintenance of Pacific National’s coal fleet, which operates in the south of New South Wales and for a section of the Pacific National rail fleet as they progress through the Illawarra and southern New South Wales region. This work was undertaken by 32 maintenance employees who worked a six day by 24 hour roster.
[11] Mr Spain advised the Tribunal that in the previous week on 14 November 2012, a storeperson was suspended with pay and subsequently terminated at 10:00am on Wednesday 21 November 2012.
[12] Mr Spain advised that he had met with the day and afternoon shift employees and explained the reasons for the termination of the employee. He explained that the dismissed employee could make an unfair dismissal application if he wished.
[13] At approximately 11:10am on Wednesday 21 November 2012, Mr Spain was contacted by an AMWU Official, Mr John Stewart, who requested permission to enter the Rail Freight Maintenance Facilities at Port Kembla at 12:00 pm the following day. Mr Stewart advised the purpose of the meeting was to explain the AMWU’s version of events in relation to the dismissal of the employee.
[14] Shortly thereafter, Mr Stewart emailed Mr Spain requesting permission to hold a combined meeting of day and afternoon shift employees at 2:30pm on Thursday 22 November 2012. Mr Spain did not accede to the request on the basis that the meeting would cause too much disruption to operations.
[15] The following day, Mr Stewart arrived on site to conduct the previously agreed meeting. Mr Spain asked Mr Stewart if he could attend the meeting to which Mr Stewart declined permission. At approximately 12:50pm Mr Stewart and the AMWU shop steward, Mr Barry Lloyd, met with Mr Spain and advised that the day shift employees were withdrawing their labour.
[16] Mr Spain stated that he later phoned Mr Stewart to clear up what was happening with the afternoon shift. Mr Stewart advised that the afternoon shift employees would be commencing work but would also hold a meeting on their meal break at 6:00pm. Mr Spain stated that he approached Mr Lloyd just prior to the 6:00pm meeting and told him the matter had been listed for hearing in FWA. Mr Lloyd returned from the 6:00pm meeting and advised Mr Spain that the afternoon shift employees had decided to support the day shift employees and would leave site, which they subsequently did. Mr Lloyd also said that Mr Stewart had told employees of the potential impact of their decision to take industrial action.
[17] Mr Stewart further advised there would be a meeting on site the next day at the start of day shift, commencing at 07:00am, to discuss any further action that may be taken. Mr Spain understood that the employees had demanded that the dismissed employee be reinstated. Mr Spain told the Tribunal that all employees had taken industrial action on the day and afternoon shifts and there was a mixture of AMWU and CEPU membership amongst the employees.
[18] Mr Spain was cross-examined by the AMWU and acknowledged that he could not identify which employees were members of the AMWU.
Submissions of Downer
[19] The Applicant submitted that the evidence demonstrated industrial action was happening, and that further action was threatened or probable and was being organised by the AMWU. Given this, the Applicant submitted that the s.418 order must be issued.
[20] The Applicant submitted that the order should operate from 8:00am Friday 23 November 2012, and remain in place for a period of 14 days, which is analogous to the statutory time frame for an unfair dismissal claim.
Submissions of AMWU
[21] The AMWU highlighted the serious consequences flowing from a s.418 order and from employees inadvertently acting in breach of the order. The AMWU objected to a number of the terms of the proposed order as not being within the power of the Tribunal to make.
[22] The AMWU stated that the order should not be made against employees who had not participated in the industrial action, for example, those that may have been on sick leave or annual leave.
Legislative framework
[23] Section 418 of the Act mandates FWA, to order that proposed industrial action not take place, if it appears that proposed industrial action is not protected.
418 FWA must order that industrial action by employees or employers stop etc.
(1) If it appears to FWA 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;
FWA 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.
[24] Section 420 of the Act requires the Tribunal, as far as practicable, to determine an application for an order under s.418 within two days after the application is made.
[25] Possibly due to the short notice given in listing the matter for hearing, neither party provided or relied upon any authorities to support their respective positions.
[26] I have had regard to the majority decision of the Full Court of the Federal Court of Australia in Transport Workers’ Union of New South Wales v Australian Industrial Relations Commission 1(‘TWU case’) and the Full Bench decision of FWA in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) v UGL Resources Pty Ltd; Conneq Infrastructure Services (Australia) Pty Ltd2(‘UGL case’) in arriving at this decision.
[27] There was no application made against the CEPU who are covered by the Agreement and no evidence presented that CEPU officials were involved in the organising, promoting or encouraging of the unprotected industrial action.
[28] There was no submission made or evidence given to contradict what was said in evidence by Mr Spain.
[29] The AMWU, while not conceding to any of the facts asserted by the Applicant, did not submit that what was put by the Applicant was incorrect. The AMWU gave no undertakings that their members would return to work the following day, nor did the AMWU attempt to assert that the action being taken was other than unprotected industrial action, e.g. the conduct was not industrial action as per s.19(2) of the Act.
[30] Further, the AMWU did not submit that it was not associated with the taking of the unprotected industrial action.
[31] I am satisfied on the evidence provided by Mr Spain that unprotected industrial action is happening and that further industrial action is threatened, pending or probable. I am further satisfied that the AMWU, through its officials and site delegates, is organising, promoting or encouraging the unprotected industrial action (see s.347(c) of the Act).
[32] As such I am required to issue an order that the unprotected industrial action stop, not occur or not be organised.
[33] I am however, persuaded that the terms of some of the proposed orders as set out at clause 4 of the draft order as submitted by the Applicant, are not within the power of the Tribunal to make.
[34] It is within the power of the Tribunal when making orders under the Act to make associated orders that are necessary, incidental, or consequential to giving effect to an order. As stated by Mildren J, with whom Martin CJ agreed in Alice Springs Town Council v Mpweteyerre Aboriginal Corporation (1997) 115 NTR 25:
“Where, by an Act of Parliament, a right or a power is created, there must by implication carry with it the power to do everything which is indispensable for the purpose of exercising the right or power, or fairly incidental or consequential to the power itself...”
[35] It appears to me that an order requiring the AMWU to write to the Applicant and advise what steps were taken in complying with the order, could not be regarded as necessary, incidental or consequential upon the making of an order that industrial action stop, not occur or not be organised (see TWU case at 53), such an order will not be included.
[36] The proposed order as sought, seeks to cover all employees who are engaged at the Rail Freight Maintenance Facilities at Port Kembla regulated by the Enterprise Agreement. As submitted by the AMWU, this would apply to employees who were on annual leave, sick leave etc and not engaged in taking the unprotected industrial action. As such, the order will only apply to those employees currently engaged in taking the unprotected industrial action.
[37] As per the reasons outlined above, a s.418 order [PR531669] will issue to operate from 8:00am Friday 23 November 2012, and will remain in place for a period of 14 days.
COMMISSIONER
Appearances:
A Dearden Counsel on behalf the Applicant.
A Walkaden on behalf of the AMWU.
Hearing details:
2012.
Sydney:
22 November 2012.
1 [2008] FCAFC 26.
2 [2011] FWAFB 4777.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR531670>
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