Fredon Industries Pty Ltd T/A Fredon v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

[2016] FWCFB 2744

[2016] FWC 2529 [Note: An appeal pursuant to s.604 (C2016/911) was lodged against this decision.- refer to Full Bench decision dated 6 May 2016 [[2016] FWCFB 2744] for result of appeal.]

FAIR WORK COMMISSION

INTERIM DECISION

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

Fredon Industries Pty Ltd T/A Fredon
v
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2016/3415)

COMMISSIONER RIORDAN SYDNEY, 20 APRIL 2016

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

[1] This decision relates to an application by Fredon Industries Pty Ltd (Fredon) in accordance with section 418 of the Fair Work Act, 2009 (the Act) to stop the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) from taking industrial action, by way of a 48 hour strike, effective from 12.01am on Thursday, 21 April 2016.

[2] Leave was granted in accordance with section 596(2) of the Act to allow Fredon to be represented by Mr G. Boyce of Counsel. The CEPU was represented by Mr O. Fagir of Counsel and Mr J. Kennedy from Hall Payne Lawyers.

[3] Witness statements were attested by Mr A. Blachura 1, the NSW Electrical Division General Manager of Fredon and Mr D. McKinley2 an Assistant Secretary of the CEPU.

[4] For the record, I am a former Officer of the CEPU and a former Chairman of the Electro Group Training Company. Mr previous work experience is well known to the parties. Neither party made application for me to excuse myself in relation to this application.

[5] The principal issue in relation to this application is that the impending industrial action is not “employee claim action” in accordance with section 409(1)(a) of the Act;

“409 Employee claim action

Employee claim action

(1) Employee claim action for a proposed enterprise agreement is industrial action that:
(a) is organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement that are only about, or are reasonably believed to only be about, permitted matters. 3

[6] There is no dispute that the CEPU and Fredon have been involved in enterprise bargaining over the past few months. There is no dispute that the proposed industrial action has been authorised by a protected action ballot.

[7] There is no suggestion that the CEPU is engaging in pattern bargaining with Fredon.

[8] Mr Blachura submitted that the proposed action is unprotected action because the CEPU is trying to regulate the wages and conditions of apprentices who are employed through a third party, namely, a group training company. Annexure 2 of Exhibit F1 is an email from Mr McKinley to Mr Blachura which contained the following comments:

“From: Dave McKinley

Sent: Thursday, 14 April 2016 24:41pm

To: Andrew Blachura

Cc: Stewart Edward; Fred Barbin; Steve Banks

Subject: ETU Position

Andrew

The following is the position the members of Fredon have endorsed as their final claim:

• Delegates Rights Clause



• Supplementary Labour Clause requiring the company to ensure that any supplementary labour employee is engaged on terms no less favourable than those contained in the Fredon agreement



• Apprentice Clause requiring the company to ensure that any apprentice engaged through a group training company is engaged on terms no less favourable than those contained in the Fredon agreement



• All other conditions in current EBA rolled over except for wages which are outlined below” 4

(my emphasis)

[9] Relevantly, the wage schedules did not contain any rates of pay for apprentices.

[10] Mr Fagir argued that Mr McKinley’s evidence should be regarded as being paramount in this matter. Mr McKinley testified that he has concerns that if the rates of pay that are currently paid to apprentices by Fredon revert down to the Modern Award rates, then the job security of the Electricians and Trades Assistants directly employed by Fredon may be in jeopardy on the basis of the flexibility of the classifications in the industry.

[11] As a result, Mr Fagir argued that the evidence of Mr McKinley satisfies the “reasonably believed” test of section 409 of the Act.

[12] Mr Blachura makes no mention of any correlation between the job security of employees and the rates of pay being paid to apprentices of group training company ever being discussed during an EBA meeting. Under cross examination, Mr McKinley admitted that he had not been at every meeting for the current EBA but recalled discussions in relation to this issue during the negotiations of previous Agreements. Unfortunately, the CEPU Official who has had carriage of these negotiations is on leave and the Union’s delegate is unwell and unavailable.

[13] In my view, it would be premature for industrial action to occur if the parties had not had the opportunity to discuss this issue.

[14] It would be inappropriate to determine this application on the basis of the evidence that is currently before the Commission. At this stage, such a determination would be at odds with the overall objectives of the Act.

[15] Section 420(2) of the Act, allows the Commission to issue interim orders. I am of the view, that an interim order to stop the pending industrial action is the appropriate course of action in this circumstance.

[16] In accordance with section 420(2) of the Act, I hereby Order that the industrial action planned for 12.01am on 21 April 2016 not proceed.

[17] In accordance with s.420(5) of the Act the interim order will operate until the application is determined.

[18] I direct the parties to confer in relation to the job security concerns raised by Mr McKinley.

[19] The matter will be listed for further hearing and determination on 29 April 2016 at 9am.

COMMISSIONER

 1   Exhibit F1 Witness Statement – Mr Andrew Blachura

 2   Exhibit C1 Witness Statement – Mr Dave McKinley

 3   Section 409(1)(a) – The Fair Work Act, 2009

 4   Exhibit F1 – Annexure 2

Printed by authority of the Commonwealth Government Printer

<Price code A, PR579327>