Kimberly-Clark Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union

[2018] FWC 2665

[2018] FWC 2665

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action

Kimberly-Clark Australia Pty Ltd
v
Construction, Forestry, Maritime, Mining and Energy Union
(C2018/2464)

COMMISSIONER MCKINNON MELBOURNE, 11 MAY 2018

Alleged industrial action at Kimberly-Clark Australia Pty Limited Millicent Mill Site, 75 Glens Lane, Tantanoola, South Australia.

[1] Kimberly-Clark Australia Pty Limited (the Applicant) has applied to the Commission for orders under section 418 of the Fair Work Act 2009 (the Act). The application seeks to prevent and restrain employee claim action notified by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) scheduled to commence at 2.30pm today (the Action) on the basis that it is not protected industrial action. It is uncontroversial that the CFMMEU seeks to take the Action for the purposes of section 459, to preserve its ability to organise, and its’ members ability to take, industrial action that is authorised by a protected action ballot.

[2] The Applicant contends that the Action will not be protected industrial action because it will not be authorised by a protected action ballot. It says that to be protected industrial action must be taken within the period prescribed by section 459. In this case, it says the Commission extended the period by more than 30 days to 31 days, contrary to section 459(3).

[3] The CFMMEU says that the Commission’s order under section 459 is valid and that in any event, it contains an obvious error which can be corrected under section 602 of the Act.

Background

[4] On 7 February 2018, the Commission issued a protected action ballot order in relation to a proposed agreement between the parties. 1

[5] The results of the ballot were declared by the Australian Electoral Commission on 14 March 2018. 69.49% of persons on the roll voted in the ballot to approve industrial action in various forms.

[6] The CFMMEU subsequently applied for an extension of the 30 day period in which to commence industrial action under section 459. The Commission granted the application on 10 April 2018 and issued an order (the Order) extending the 30 day period in the following terms:

“[1] On 7 February 2018 the Fair Work Commission (the Commission) ordered that a protected action ballot be held in matter B2018/79.

[2] This Order concerns the commencement of a protected action period arising from the declaration of the result of that protected action ballot (PR600225) held in matter B2018/79 and declared on 14 March 2018.

[3] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has made an application pursuant to section 459(3) of the Fair Work Act 2009 (the FW Act) to extend the 30 day period in which industrial action is authorised by the relevant protected action ballot.

[4] Section 459(3) of the FW Act provides as follows:

“(3)  The FWC may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a) an applicant for the protected action ballot order applies to the FWC for the period to be extended; and

(b) the period has not previously been extended.”

[5] The application made by the CFMMEU contends that each of the relevant requirements have been met and they have indicated that the period should be extended by a further 30 days, being to 13 May 2018.

[6] Scott Whicker, Mill Manager, for Kimberly-Clark Australia Pty Ltd has advised the Commission on 10 April 2018 that the application is not opposed.

[7] I am satisfied that the relevant requirements of the FW Act have been met and that the application should be granted given the express statutory terms.

[8] Accordingly, pursuant to section 459(3) of the FW Act, I order that the 30 day period for the commencement of protected action for eligible CFMMEU members employed by Kimberly-Clark Australia Pty Ltd be extended to 13 May 2018.

[9] This Order will operate on and from 10 April 2018.” 2

[7] On 7 May 2018, the CFMMEU gave notice to the Applicant of intended employee claim action in the form of a one hour stoppage from 2.30pm to 3.30pm on 11 May 2018 in the stores area at the Millicent Mill.

[8] On 9 May 2018, the Applicant made this application and the matter was listed for hearing on the morning of 11 May 2018. Both the Applicant and the CFMMEU appeared.

Relevant law

[9] Section 19 of the Act defines ‘industrial action’, which relevantly includes a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work although there are some exceptions to the definition.

[10] Section 459 of the Act provides as follows:

“459 Circumstances in which industrial action is authorised by protected action ballot

(1) Industrial action by employees is authorised by a protected action ballot if:

(a) the action was the subject of the ballot; and

(b)  at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and

(c)  more than 50% of the valid votes were votes approving the action; and

(d)  the action commences:

(i)  during the 30-day period starting on the date of the declaration of the results of the ballot; or

(ii)  if the FWC has extended that period under subsection (3)--during the extended period.

Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.

(2)  If :

(a) the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and

(b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;

then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).

(3)  The FWC may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a)  an applicant for the protected action ballot order applies to the FWC for the period to be extended; and

(b)  the period has not previously been extended.”

(3)  The FWC may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a)  an applicant for the protected action ballot order applies to the FWC for the period to be extended; and

(b)  the period has not previously been extended.”

[11] Section 418 of the Act provides as follows:

“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.”

[12] Section 420(1) of the Act requires that as far as practicable, an application under s.418 be determined within 2 days after it is made.

Consideration

[13] The question in this case is whether the Action is protected industrial action for the purposes of section 418. If not, there is a further question about whether the other requisite elements of section 418 are met such that an order must be made.

[14] Save as to the question of whether or not it is protected industrial action, there is no dispute that the Action falls into the category of purported “employee claim action”. 3 Relevantly, employee claim action is industrial action for the purpose of supporting or advancing claims in relation to a proposed enterprise agreement if the claims are about permitted matters (or reasonably believed to be). It is action organised or engaged in against an employer that will be covered by the agreement and that meets the common requirements in section 413 of the Act.4 It must be authorised by a protected action ballot.5

[15] No party contended that the Action would not meet the description of industrial action in section 19 of the Act or that any of the relevant exceptions applied. I am satisfied that the Action is industrial action for the purposes of section 19.

[16] There was no dispute, and I find, that the Action will be industrial action by one or more employees of the Applicant.

[17] I am satisfied that the Action is both impending and probable, and that it is being organised by the CFMMEU. 6

Is the industrial action protected?

[18] The question is whether the industrial action is protected, and in particular, whether it is authorised by a protected action ballot for the purposes of section 459. No issue was raised in relation to whether any of the other common requirements were met and I am satisfied on the material before me that the action will be in support of a single-enterprise agreement; that the bargaining representatives are genuinely trying to reach agreement; that the notice requirements have been met and that there is no relevant contravention of orders or other provisions of the Act; that the Action will not be taken during the nominal life of an enterprise agreement and there is no order suspending or terminating industrial action. No issue as to any claim for unlawful terms, pattern bargaining or demarcation dispute arose in the proceeding. Save for the matter dealt with below, I am satisfied that the common requirements for the taking of protected industrial action have been met.

[19] As to whether the Action is authorised by a protected action ballot, there is no dispute that the Action was the subject of a protected action ballot declared by the Australian Electoral Commission on 14 March 2018. At least 50% of employees on the roll of voters for the ballot voted in the ballot and more than 50% of valid votes approved protected industrial action, including “an unlimited number of stoppages of the performance of all work for one hour in all or a part of the workplace”.

[20] I am satisfied that the Action is proposed industrial action of a nature that is authorised by the protected action ballot declared on 14 March 2018.

[21] There is no dispute that the Action did not commence during the 30 day period starting on the date of the declaration of the results of the ballot, which ended on 12 April 2018 or that the CFMMEU applied for the period to be extended and that it had not previously been extended.

[22] There is also no dispute that, if the Order is valid, the Action is proposed to commence during the extended period set by the Order and also within the 30 day period immediately following 12 April 2018.

[23] The dispute is about whether, because the Order is expressed as extending the initial 30 day period to 13 May 2018, it is an order of the type contemplated under section 459(3).

[24] For the reasons that follow, I am satisfied that it is.

[25] Section 459(3) of the Act empowers the Commission to extend the period by “up to 30 days” after the initial 30-day period prescribed by section 459(1). The total period, including the initial 30 day period and the additional period of up to 30 days is calculated “starting on the date of the declaration of the results of the ballot” and ending no more than 30 days after the end of that period. 7 In this case, the initial 30 day period started on 14 March 2018 when the results of the ballot were declared and finished on 12 April 2018. The extended 30 day period started on 13 April 2018 and will end tomorrow, 12 May 2018.

[26] A fair reading of the Order in my view establishes that this was what was intended. Paragraph [5] of the Order is as follow:

“[5] The application made by the CFMMEU contends that each of the relevant requirements have been met and they have indicated that the period should be extended by a further 30 days, being to 13 May 2018.” 8

[27] It goes on at paragraphs [7] - [8] of the Order to find:

“[7] I am satisfied that the relevant requirements of the FW Act have been met and that the application should be granted given the express statutory terms.

[8] Accordingly, pursuant to section 459(3) of the FW Act, I order that the 30 day period for the commencement of protected action for eligible CFMMEU members employed by Kimberly-Clark Australia Pty Ltd be extended to 13 May 2018.” 9

[28] The reference to 13 May 2018 in paragraph [8] of the Order followed the earlier reference to that date in paragraph [5], which identified the date calculated as the end of a “further 30 days”.

[29] Be that as it may, the Order was expressed in terms of extending the period to 13 May 2018, one day more than the Act permits. To that extent, it was invalid. It should be read as extending the period to 12 May 2018 only.

[30] It follows that industrial action taken in accordance with the protected action ballot and within the 30 day period from 13 April 2018 to 12 May 2018 is authorised by the ballot declared on 14 March 2018.

[31] I am satisfied that the industrial action scheduled to commence this afternoon is authorised by the protected action ballot. It is protected industrial action.

Obvious error

[32] The CFMMEU submitted that the reference to 13 May 2018 in the Order was an error which is capable of correction under s.602 of the Act as an obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the Commission.

[33] The Applicant did not oppose the CFMMEU on this point but subsequently filed submissions emphasising that section 602 should be approached with caution and only in circumstances where the use of the “slip rule” was permissible. 10

[34] I am satisfied that the Order contains an error that is appropriately categorised as an obvious error in relation to a Commission decision. While the matter was first raised one day after the Order was issued on 11 April 2018, so was the suggestion that the Commission’s power was now constrained by the doctrine of ‘functus officio’. While the reasons are not apparent, what is clear is that the Order was not changed.

[35] The parties appear to agree that the last date of the extended period was 12 May 2018, and to that extent there does not appear to be any significant controversy on the question. In those circumstances, I am satisfied that had the error been mentioned in the proceedings, it would have been corrected. 11

[36] It is not necessary to correct the Order because, for the reasons set out above, I am satisfied that the industrial action is protected for the purposes of section 459. Had it been necessary to do so, the consequences that flow from taking unprotected industrial action under the Act would in my view have weighed in favour of a correction that provided certainty to the parties.

Conclusion

[37] The application is dismissed.

COMMISSIONER

Appearances:

A Farr for the Kimberly-Clark Australia Pty Ltd

D Malbasa for the Construction, Forestry, Maritime, Mining and Energy Union

Hearing details:

2018.

Melbourne:

May 11.

Printed by authority of the Commonwealth Government Printer

<PR607022>

 1   [2018] FWC 827; PR600225

 2   PR601870

 3 Section 408, Fair Work Act 2009 (Cth)

 4 Section 409, Fair Work Act 2009 (Cth)

 5 Section 409(2) , Fair Work Act 2009 (Cth)

 6   Notice of industrial action, 7 May 2018, Audio recording of hearing 11 May 2018

 7 Section 459(1)(d), Fair Work Act 2009 (Cth)

 8   PR601870

 9   PR601870

 10   Rotometrics Australia Pty Ltd v AMWU [2011] FWAFB 7214

 11   [2011] FWAFB 7214

Printed by authority of the Commonwealth Government Printer