ECL Services Pty Ltd v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

[2009] FWA 1671

[2009] FWA 1671

FAIR WORK AUSTRALIA

DECISION

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

ECL Services Pty Ltd
v
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
(C2009/11127)

ECL SERVICES (AUST) PTY LTD COLLECTIVE BARGAINING AGREEMENT 2006-2009
(AG2006/3692)  [AG849099]

Metal industry
COMMISSIONER BLAIR	MELBOURNE, 10 DECEMBER 2009

Alleged dispute in relation to failure to follow a lawful instruction.

[1] This matter came to Fair Work Australia (the Tribunal) by way of a s739 application by ECL Services Pty Ltd (the Company) with the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) being the respondent.

[2] The matter in dispute relates to an allegation of an employee’s failure to follow a lawful instruction.

[3] The matter was heard in Portland, Victoria, with the Australian Workers’ Union (AWU) intervening.

[4] The lawful instruction relates to fitters doing rigging and dogging work (wire rope inspections) which they are capable of and have been trained in and fits within their classification.

[5] As part of the hearing process it was made very clear to the Tribunal that the issue in question relates to a demarcation dispute between the AMWU and the AWU (PN25 of transcript).

[6] At the conclusion of the hearing the Tribunal stated the following:

“THE COMMISSIONER: ... Can I suggest that the company forward the documentation that you reply upon to the AMWU with a copy to myself. I will look at the documents along with Mr Solly, who will look at the documents.

If, after I confer with Mr Solly, and that would include documents, if you have any documents, from WorkSafe or an opinion from WorkSafe, I’m content that what’s being asked is within the skills and competencies of the fitter then I will issue a decision accordingly and part of that decision will state that in the Tribunal’s view section 409(5) is applicable and therefore is not protected industrial action.”

[7] The Tribunal has since reviewed all the documentation and conferred with Mr Solly of the AMWU. Having done so the Tribunal would determine that the fitter or fitters in question are able to perform the work in question, as it fits within their classification and they are appropriately trained to do so.

[8] The Company are therefore entitled to issue a direction that such work be carried out by the appropriately trained fitters. Failure to follow such a direction, in the Tribunal’s view, would constitute failure to follow a lawful instruction.

[9] The Tribunal would also determine that any ban on such work does not fall under the heading of “protected industrial action” as this matter relates to a demarcation dispute as mentioned above.

[10] This position is reinforced by section 409(5) of the Fair Work Act 2009 (the Act), which states:

“Industrial action must not relate to a demarcation dispute etc.

(5) The industrial action must not, if it is being organised or engaged in by a bargaining representative, relate to a significant extent to a demarcation dispute or contravene an FWA order that relates to a significant extent to a demarcation dispute.”

[11] This position is also reinforced by section 410(2) of the Act, which states:

“Industrial action must not relate to a demarcation dispute etc.

(2) The industrial action must not, if it is being organised or engaged in by a bargaining representative, relate to a significant extent to a demarcation dispute or contravene an FWA order that relates to a significant extent to a demarcation dispute.”

COMMISSIONER

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<Price code A, AG849099  PR991782>