IPM Operations & Maintenance Loy Yang Pty Ltd v Construction, Forestry, Mining and Energy Union

[2013] FWC 1239

[2013] FWC 1239

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action

IPM Operations & Maintenance Loy Yang Pty Ltd
v
Construction, Forestry, Mining and Energy Union; Australian Municipal, Administrative, Clerical and Services Union; Keith Clark
(C2013/3232)

COMMISSIONER BISSETT MELBOURNE, 22 FEBRUARY 2013

Section 418 application to stop industrial action - alleged unprotected industrial action at Loy Yang B Power Station - application dismissed.

[1] IPM Operations & Maintenance Loy Yang Pty Ltd (‘IPM’ or the Applicant) has made application that the Commission issue orders under s.418 of the Fair Work Act 2009 (the Act) that unprotected industrial action that is being organised, threatened, impending or probable by members of the Construction, Forestry, Mining and Energy Union (CFMEU), the Australian Municipal, Administrative, Clerical and Services Union (ASU) (collectively ‘the Unions’) and by those employees represented by Keith Clark as a bargaining representative employed by IPM at Loy Yang stop.

[2] The application was made by IPM at 5.00pm on 20 February 2012 and was heard by me on 22 February 2012. At the conclusion of the hearing I indicated to the parties that, mindful of the requirements of s.420 of the Act to issue interim orders if an application could to be determined within two days of being made that I would, prior to the end of 22 February 2012 either issue an interim order pursuant to s.420 of the Act or issue a decision with reasons for that decision to follow as soon as possible thereafter.

[3] On 31 January 2012 the CFMEU, the ASU and Keith Clark each gave notice of intent to take employee claim action. The notices are each in the same form.

[4] The notice given is that employees for whom each of the unions and Mr Clark are bargaining representatives intend to take protected industrial action as follows:

1. A stoppage of work of one (1) hour in duration by day work employees (not rostered to shift work) commencing on Friday, 8 February 2013 at 3:00pm.

2. Bans on the working of higher duties by day work employees (not those rostered to shift work) commencing on Friday, 8 February 2013 at 4:00pm and continuing thereafter for an indefinite period.

3. Bans on the working of overtime by day work employees (not those rostered to shift work) commencing in Friday, 8 February 2013 at 4:00pm and continuing thereafter for an indefinite period.

4. Bans limiting the output of individual generators to four hundred megawatts (400 MW) between the hours of 7:00am and 7:00pm commencing on Wednesday, 6 February 2013 and continuing on a daily basis thereafter between the same times specified for an indefinite period.

[5] The Applicant does not take issue with the proposed action notified in points 1-3 of the notice but says the proposed action at 4 does not meet the requirements of the Act, in particular s.414(6) of the Act in that it does not specify the nature of the action to be taken.

[6] This is the second time, in the current round of bargaining, that the bargaining representatives have indicated an intention to take protected industrial action. As it is relevant to a consideration of whether point 4 of the current notice meets the requirements of the Act I understand that the previous notice was a similar form except that the output was limited to 450 MW and the time period within which the action was to be taken was shorter. I comprehend the form of the notice of the action, in all relevant respects, to have been the same.

[7] The parties will be aware that on 21 February I issued a decision in EnergyAustrlia Yallourn Pty Ltd v CFMEU 1 (Yallourn) in which I was required to determine if a notice in a form not dissimilar to the action notified by the did not meet the notification requirements pursuant to s.414(6) of the Act. In that matter the form of the notice was:

1. Bans limiting the output of individual generators to two hundred and forty megawatts (240 MW) between the hours of 7:00am and 9:00am commencing on Wednesday, 20 February 2013 and continuing on a daily basis thereafter between the same times specified for an indefinite period.

2. Bans limiting the output of individual generators to two hundred and forty megawatts (240MW) between the hours of 4:00pm and 6:00pm commencing on Wednesday, 20 February 2013 and continuing on a daily basis thereafter between the same times specified for an indefinite period.

[8] In that matter I determined that, in the circumstances relating to the particular enterprise I was satisfied the notice given by the CFMEU met the requirements of the Act.

Issues with the notice

[9] The Applicant raises the following deficiencies with the notice:

• That the notice specifies the effect of the ban and not the nature of the ban;



• That the notice misstates the nature of the action;



• That the Applicant cannot know when the action will commence and when it will stop;



• That the Applicant cannot know who will take the industrial action.

[10] I have addressed each of those issues in the decision in Yallourn.

Conclusion

[11] The evidence before me is that there are three ways in which an operator can take action such that the output of the generators is altered. First by physically selecting an output target and allowing the system to ramp up (or down) to that level, second by reducing fuel and third by reducing the air.

[12] Evidence was also given that, during the last period of similar industrial action (ie a ban limiting output) this was done by operators physically selecting an output target. Each time the ban was due to commence management asked the operator/s to run the generator at a particular level of output (normally 525 MW). An employee engaged in taking industrial action presumably told management that they would not do so.

[13] It seems to me that management of IPM, because of the nature of the enterprise, is well aware of the specifics of the action that will be taken by employees in that they will fail to follow (that is, ban) the direction of management that they operate the generators at a particular level.

[14] I am satisfied that the notice given by each union and Mr Clark describes the nature of the action such that management is aware of what will occur.

[15] The evidence of the Applicant is that, during the last period of industrial action, it was able to take action to advise the Australian Energy Market Operator (AEMO) of the change in output such that AEMO adjusted the demands they made on IPM.

[16] On the basis of this evidence I am satisfied that the Applicant has sufficient information to enable it to make relevant preparations to respond to the action by advising AEMO of the change in output.

[17] In reaching my decision I rely on the decision of the Full Bench of the Commission Telstra Corporation Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 2 (Telstra v CEPU) where it was found that:

it is implicit that the description of the action contained in the notice should be sufficient to put the employer in a position to make reasonable preparations to deal with the effect of the industrial action. In order to prepare for all eventualities contemplated by the notice in this case, Telstra would have to plan on the basis that every CEPU member would be on strike for the whole of the day in question. Yet that is not what the notice says. Given the nature of Telstra’s operations some greater specification would be required. Indeed, on one view the notice conceals more than it reveals about the industrial action that will in fact occur.

...

In concluding it should be emphasised that whether a particular notice meets the requirements in s.414(6) will depend upon the terms of the notice and the industrial context . Every case is different and each notice must be looked at having regard to all of the relevant considerations. 3

[18] I also rely on the decision in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Pinnacle Career Development Pty Ltd 4 per Greenwood J as outlined in the submission of the CFMEU.5

[19] As to whether the action is a ban, as I found in Yallourn, a notice placing a ban on overtime has not been held to be in breach of s.414(6) of the Act because it does not specify how that ban will be implemented. It sets out the result of the ban. In this instance IPM is aware that employees will ban compliance with directions from management to set the output of the generators at a particular level. My reasoning in Yallourn as to why what was notified was a ban applies here. There was nothing put to me that suggests the enterprise in this case was such that I should reach a different conclusion.

[20] As to the time the action will commence I am satisfied that the notice provides adequate advice that the action will commence at 7.00am. In any event I note that s.414(6) only requires that the notice specify the time the action will commence. Whilst this was an issue in the decision in Telstra v CEPU IPM is not of a size or diversity of locations that such an issue is relevant here.

[21] If IPM consider that the action commences before the time it is notified then there are steps they can take to stop unprotected industrial action. There is nothing before me to convince me that any action that is being organised will be unprotected on the basis of the time the bans are to commence and end each day.

[22] I do not consider it appropriate in determining these questions that I consider the matter from the view of a stranger. The questions to be answered relate to whether the notice given to IPM is sufficient and meets the needs of the Act. This requires an analysis from IPM’s standpoint. The evidence convinces me that the notice meets the requirements of the Act in that it sets out the nature of the action and the time that action will commence. IPM management know which group of employees will participate in the action and they know the time that it will commence.

[23] For these abbreviated reasons I find that the notice given by each of the CFMEU, the ASU and Keith Clark meet the requirements of s.414(6) of the Act. The application of IPM is therefore dismissed.

[24] Detailed reasons for my decision will be issued in the near future.

COMMISSIONER

Appearances:

F. Parry of Counsel with R. Dalton for the Applicant

S. Crawshaw of Counsel with B. Annson for the CFMEU and K. Clark

M. Harding of Counsel with D. Stoddart for the ASU.

Hearing details:

2013.

Melbourne:

February 22

 1   [2013] FWC 1202

 2   [2009] FWAFB 1698.

 3   [2009] FWAFB 1698, [16], [18].

 4 [2010] FCA 1350.

 5   CFMEU 3, [12].

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