Jemena Asset Management Pty Ltd v Australian Municipal, Administrative, Clerical and Services Union

[2016] FWC 5716

[2016] FWC 5716

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.418—Industrial action

Jemena Asset Management Pty Ltd
v
Australian Municipal, Administrative, Clerical and Services Union
(C2016/4879)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 17 AUGUST 2016

Alleged industrial action at Jemena Asset Management Pty Ltd - industrial action protected - order not issued.

[1] On 12 August 2016, Jemena Asset Management Pty Ltd (Jemena) filed an application under s.418 of the Fair Work Act 2009 (the FW Act) for an order that industrial action proposed to be taken by members of the Australian Municipal, Administrative, Clerical and Services Union (the ASU) from 15 August 2016 not occur and stop being organised.

[2] Jemena’s application was heard the day it was filed and I gave my decision at the close of the hearing. I declined to issue the order sought, as I found that the industrial action proposed to be taken was protected. These are my reasons for that decision.

Background

[3] Jemena owns and operates electricity, gas and water infrastructure assets throughout Australia. In Victoria, Jemena employs members of the ASU whose employment is regulated by the Jemena Asset Management Enterprise Agreement (Vic) 2013 1 (the agreement). The agreement reached its nominal expiry date on 31 December 2014.

[4] Jemena is currently undertaking electrical power works for the upgrade of the electricity network in Northland Shopping Centre (Northland). In particular, works are currently being undertaken by Jemena to allow the main switchboards in the shopping centre to be upgraded.

[5] On 30 September 2015, the Fair Work Commission (the Commission) made a Protected Action Ballot Order (the PABO) on application by the ASU. The results of the PABO were declared on 28 October 2015, with a majority of employees voting to approve the proposed industrial action.

[6] On 9 November 2015, the ASU sent a notice to Jemena stating that industrial action would commence from 6:00 am on Friday, 13 November 2015. Action 4 of that notice was ‘indefinite or periodic ban on planned interruptions (customer shut down) excluding those initiated by the customer’.

[7] On 5 August 2016, the ASU sent a notice to Jemena stating that:

‘In accordance with section 414 of the Fair Work Act 2009, we wish to advise that members of the ASU will be engaging in industrial action notified to you on 9 November 2015:

Item 4: “Indefinite ban on planned interruptions (customer shutdown) excluding those initiated by the customer.”

This action relates to scheduled works due to take place at the Northland shopping centre in Preston commencing on or around 15 August 2016.’

Jemena’s submissions

[8] Jemena submitted that the proposed industrial action was not protected on two grounds:

● The notification referred to ‘an indefinite ban on planned interruptions (customer shutdown) excluding those initiated by the customer’. This ban ceased in March 2016. In those circumstances, the notified action cannot be said to be ‘an indefinite ban’.
● The works proposed to occur at Northland do not involve a ‘customer shut down’, as no customer will be taken off supply, that is, electricity supply to Northland will continue throughout the works proposed to commence on that date.

The evidence

[9] Oral evidence was provided by Trevor Woolley, Jemena’s Networks Program Manager and Michael Tame, Team Leader at Jemena and also an ASU delegate. Mr Woolley denied that the work proposed to take place on 15 August 2016 at Northland Shopping Centre constituted a ‘customer shut down’. When asked why, he said:

‘The normal usage of the term “customer shutdown” would be that the customer effectively loses power. Now, we do many customer shutdowns where the customers effectively lose power from the Jemena network. In this case Northland are not losing the majority of their supply.’ 2

[10] During his cross-examination, Mr Woolley agreed that what was occurring constituted ‘a planned interruption to supply’ for two affected transformers. 3

[11] The following interchange with Mr Woolley also took place:

‘THE SENIOR DEPUTY PRESIDENT: …will there be any part of the shopping centre that will have its supply stopped for a period of time? …I understand the cinema will keep on operating and a lot of the shops …are probably going to be empty…but … will there be parts of the shopping centre that, if you like, you went to turn your light on, the light wouldn’t go on, putting it crudely? --- Yes, indeed, in fact and specifically, these two transformers that are being removed are for house services to a portion of the shopping centre, and for some mechanical services. So the fact is that in certain corridors of the shopping centre there will be no lights, and in certain portions of the shopping centre there will be no fire services; however, that is only for a very discrete period…There is an element where a portion of the customer being Northland that provides these mechanical services to the broader shopping centre will lose its power for a small window…But not all of its supply.’ 4

[12] Mr Woolley further agreed that the two transformers that are going to be worked on will be completely shut down, and ‘so for that customer being Northland, there will be a shutdown of those two transformers.’ 5

[13] Mr Woolley also gave evidence that from November 2015 and the start of April 2016, he (and his counterpart within the maintenance area) regularly received emails in the morning identifying activities that were going to be the subject of bans. However, since the start of April there had not been any bans placed on interruptions that would have involved a customer shut down. 6

[14] Mr Tame gave evidence that the planned work at Northland involved ‘turning off a customer supply to a customer.’ 7

[15] During his cross-examination, Mr Tame was asked whether it was correct that there had been no bans on planned interruptions for customer shut downs since April 2016. He responded:

‘I know a decision was made to be more strategic in where it was applied.’ 8

Consideration

[16] Whether an order should be made under s.418 turns on whether, in the context of bargaining for a new enterprise agreement, the industrial action notified by the ASU on 5 August 2016 would be protected. Section 418 does not apply to protected industrial action.

[17] The FW Act allows employees to take protected industrial action in support of a proposed enterprise agreement.

[18] For industrial action to be protected, it must be authorised by a protected action ballot. Section 437 allows a bargaining representative of employees to apply for an order that a protected action ballot be conducted to determine whether the employees they wish to engage in particular protected industrial action. Section 437(3)(b) provides that the application ‘must specify ... the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.’ Section 443 provides that the Commission must make a protected action ballot order if the application has been made under s.437 and the Commission is satisfied each applicant has been, and is, genuinely trying to reach agreement with the employer. Section 443(3)(d) provides, relevantly, that;

‘A protected action ballot order must specify the following:

...

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.’

[19] The Commission made a PABO on 28 October 2015 which included the following question:

‘In support of reaching an Enterprise Agreement with Jemena Asset Management Pty ltd, do you endorse the taking of industrial action, which may be taken separately, concurrently or consecutively described in Schedule A to this Ballot Paper?

SCHEDULE A

…

4. Indefinite or periodic ban on planned interruptions (customer shut down) excluding those initiated by the customer.’

[20] I am satisfied that the proposed industrial action contained in the notice would involve imposing a ban on ‘a planned interruption (customer shut down)’. Mr Woolley agreed that the activities that were to be banned involved ‘a planned interruption’. While he denied that they involved ‘a customer shutdown’, I found this unpersuasive. He agreed that, for a period of time, power to a customer would indeed be shut down – even if it would only affect part of the customer’s premises.

[21] I must admit to having some difficulty understanding Jemena’s contention that the proposed industrial action would not be protected because the notification was only for an ‘indefinite ban’ and it appears that customer shut downs had been allowed to take place in an unimpeded fashion between April and August 2016.

[22] I note that PABOs are orders of the Commission. Under s.13 of the Legislation Act 2003, the Acts InterpretationAct 1901 applies to legislative instruments (as defined in s.8). Moreover, under s.46 of the Acts Interpretation Act 1901, the Act applies to instruments made pursuant to a power conferred by a statutory provision. A PABO would be captured under either. Under s.23(b) of the Acts Interpretation Act 1901:

‘Words in the singular number include the plural and words in the plural number include the singular.’

[23] This means, in effect, that the reference to ‘an indefinite or periodic ban’ in the PABO can also be read as a reference to ‘indefinite or periodic bans’. There is nothing in the PABO that means that there can only be one ‘indefinite ban’ of the relevant type and that once a ban has stopped there cannot be further bans. Nor is there anything in the word ‘indefinite’ that suggests this. All that would normally distinguish an indefinite ban from any other type of ban is that there is no set time for when it will cease.

[24] Section 409, in addition to requiring a protected action ballot prior to employee claim action being taken, also provides that a number of other pre-requisites must be met. These include what are described as the ‘common requirements’ and are in Subdivision B of Division 2 of Chapter 3 of the FW Act. That subdivision contains two sections, ss.413 and 414.

[25] Section 413(4) provides that notice requirements as set out in s.414 must have been met in relation to the proposed industrial action. Section 414 provides that before a person engages in employee claim action, a bargaining representative of the employee must have given written notice of the action to the employer. Section 414(6) provides that the notice must specify the nature of the action and the day on which it will start.

[26] The notice given on 5 August 2016 clearly indicated the nature of the proposed industrial action and the time it would take place.

[27] Jemena sought to rely on an interlocutory decision of Goldberg J of the Federal Court of Australia in support of its contention that the proposed industrial action was not covered by the notice. 9 However that decision concerned a different issue, namely:

‘… whether industrial action specified in a notice and not taken on the date specified as the commencing date or for a period of time, is covered by the notice if it occurs at a later point of time.’ 10

[28] I am satisfied that the proposed industrial action is protected. It is authorised by a protected action ballot, and the notice given on 5 August 2016 met the requirements of s.414 of the Act.

Conclusion

[29] As indicated on transcript at the close of proceedings on 12 August 2016, I decline to issue the order sought. The application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

A Bell of counsel with L Mummé for Jemena Asset Management Pty Ltd.

D Victory, solicitor, for the Australian Municipal, Administrative, Clerical and Services Union.

Hearing details:

Sydney with video-link to Melbourne.

2016.

August 13.

 1   AE402737.

 2   PN138.

 3   PN175.

 4   PN178-PN181.

 5   PN184-PN185.

 6   PN144, PN148.

 7   PN221.

 8   PN229.

 9   PWB Anchor Ltd v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union (No 2) [2000] FCA 1491.

 10 Ibid [18].

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