DRW Pty Ltd T/A Wettenhalls v Transport Workers' Union of Australia

[2018] FWC 2554

[2018] FWC 2554

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.418 - Application for an Order that industrial action by employees or employers stop etc.

DRW Pty Ltd T/A Wettenhalls

v

Transport Workers' Union of Australia

(C2018/2407)

COMMISSIONER CAMBRIDGE SYDNEY, 9 MAY 2018

Application for an Order that industrial action by employees or employers stop etc.

1. This matter involves an application made under s. 418 of the Fair Work Act 2009 (the Act), seeking that the Fair Work Commission (the Commission) makes an Order that industrial action that is occurring, or threatened, or impending, or probable, or being organised, be stopped and not occur.

1. Section 418 of the Act is in the following terms:

“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.”

1. The application has been made by DRW Pty Ltd T/A Wettenhalls (Wettenhalls). The application seeks an Order against the Transport Workers' Union of Australia (TWU) and members of the TWU who are employees of Wettenhalls engaged to perform work at and from site operations conducted at 90 Moorebank Avenue Moorebank, NSW.

1. The industrial action that is the subject of the application relates to employees of Wettenhalls who are members of the TWU, and for whom the TWU has given a notice of intention to take industrial action pursuant to a Declaration of the Results of a Protected Action Ballot. There was no dispute that the industrial action which is the subject of the notice given by the TWU would satisfy the definition of industrial action as established under the Act.

1. Further, there was no dispute that the threatened industrial action was action that was authorised in accordance with the Declaration of the Results of a Protected Action Ballot. The relevant Protected Action Ballot was conducted in accordance with an Order of the Commission made on 20 March 2018, in Transport Workers Union of Australia v Wettenhalls Group [2018] FWC 1609, (the PABO Decision).

1. There was no suggestion that the employee claim industrial action to be taken by the TWU and its members employed by Wettenhalls, did not comply in respect of the notice requirements for industrial action as prescribed by s. 414 of the Act.

1. The industrial action which is the subject of the application has been challenged by Wettenhalls as being unprotected industrial action because it was asserted that the work that would be the subject of the industrial action was covered by the terms of the Wettenhalls National Enterprise Agreement 2017 (the National EA). The National EA is an enterprise agreement that had not passed its nominal expiry date, and consequently the industrial action was asserted to offend both  s. 417 of the Act and the common requirements that apply for industrial action to be protected industrial action, specifically that requirement contained in subsection 413 (6) of the Act.

1. The asserted coverage of the National EA in respect to the work that is the subject of the challenged industrial action, was said to arise from the terms of clause 3.2 of the National EA which provides for an exemption or carve out of the coverage of the National EA for employees who are covered by the “ “Wettenhalls Group Goodman Fielder (NSW) Enterprise Agreement 2017.” However, no such enterprise agreement has been made or approved. The PABO Decision was made in respect to enterprise bargaining for an agreement to replace the Wettenhalls Group Goodman Fielder (NSW) Enterprise Agreement 2011 (the 2011 EA).

1. It is also relevant to note that Wettenhalls has made an application under s. 225 of the Act for termination of the 2011 EA (the s. 225 application). That application has yet to be determined by the Commission.

1. The evidence that was provided during the Hearing of the matter has established that the wording in clause 3.2 of the National EA mistakenly anticipated that the 2011 EA had been replaced with a 2017 enterprise agreement as an outcome from the enterprise bargaining that is the subject of the PABO Decision.

1. Consequently, the application in this matter which seeks to stop unprotected industrial action relies upon what on any reasonable and objective assessment, must be the mistake made in clause 3.2 of the National EA which incorrectly identifies an enterprise agreement which does not exist, and did not exist at the time that the National EA was made and approved. Further, at the time that the National EA was made, the 2011 EA operated, and an earlier National enterprise agreement contained an exemption or carve out of its coverage for the 2011 EA.

1. Further, if the position as advanced by Wettenhalls in respect to the coverage of the National EA was correct, the PABO Decision would be rendered null and void. In addition, if the position as advanced by Wettenhalls in respect to the coverage of the National EA was correct, it would be unnecessary for it to have made the s. 225 application to terminate the 2011 EA because the National EA covered and applied to the employees covered by the 2011 EA.  Wettenhalls has not discontinued the s. 225 application.

1. As a result, the application made in this matter is fundamentally misconceived to the extent that it represents an attempt to negate the PABO Decision. In simple terms, if Wettenhalls believed that clause 3.2 of the National EA operated to cover the employees covered by the 2011 EA then, properly, it should have challenged the PABO Decision, rather than attempt to stop industrial action which is protected by the Declaration of the Ballot that followed that Decision.

1. Separately, the applicant did not satisfactorily deal with the service requirements in respect to the employees of Wettenhalls who would be potentially the subject of any Order if granted.

1. Consequently, the Order sought by Wettenhalls must be refused as there is no proper basis to establish that the industrial action that is the subject of the application is not protected industrial action taken in accordance with the relevant requirements of the Act.

1. Accordingly, the application in this matter is dismissed.

COMMISSIONER

Appearances:

Mr D Houlihan of First IR Consultancy Pty Ltd appeared for DRW Pty Ltd T/A Wettenhalls.

Mr G Webb appeared for the Transport Workers’ Union of Australia.

Hearing details:

2018.
Sydney:
May, 9.

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