Metropolitan Fire and Emergency Services Board v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU)

[2013] FWC 3806

[2013] FWC 3806

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action

Metropolitan Fire and Emergency Services Board
v
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
(C2013/4736)

DEPUTY PRESIDENT SMITH MELBOURNE, 14 JUNE 2013

Alleged industrial action at Metropolitan Fire and Emergency Services Board (MFB), Thornbury Workshop.

Introduction

[1] The Metropolitan Fire and Emergency Services Board (MFB) seek an order prohibiting what it says is unprotected industrial action taken by its employees who are members of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Manufacturing Workers’ Union (AMWU).

[2] The application was made pursuant to s 418 of the Fair Work Act 2009 (the Act) and lodged on 12 June 2013. It was called on that afternoon. During that hearing three issues were brought sharply into focus. The first was the impact of two bans - an overtime ban and a ban on performing “A” services. The second issue was the limitations created by the High Court decision in Re Australian Education Union; Ex parte Victoria (Re AEU) 1 and the third issue was that the contractor’s clause was said not to be a permitted term. The controversy, to which I shall shortly turn, involved a contractor clause in the proposed agreement and the apprentice clause.

[3] During the proceedings the AMWU submitted that it would conduct a vote of its members the next day in relation to the overtime ban and the “A” services ban. As to the contractors clause and the apprenticeship clause, the AMWU unreservedly withdrew any claim which offended Re: AEU and further submitted that it would not pursue a contractors clause which conflicted with the decision of the Federal Court in Australian Industry Group v Fair Work Australia. 2

[4] The matter was adjourned until the next day to enable a consideration of the factual position in relation to any industrial action. Given that the actions of the responsible Minister in the Government of Victoria may have become relevant to the proceedings, a notice was sent to the Hon. Robert Clark making him aware of the proceedings and providing him with the opportunity to be heard. The Minister did not take the opportunity. The next day the AMWU advised that there was no ban on overtime or “A” services. No evidence was advanced to the contrary.

[5] This decision has been written without the benefit of the transcript and as such some dates may be approximates.

Background

[6] In considering this application it is appropriate to examine the background. These are the background facts.

[7] MFB is a constitutional corporation and is subject to Ministerial Direction.

[8] The MFB commenced negotiations with its employees around August 2011 for an enterprise agreement. The employees used their bargaining representative – the AMWU. The stage had been reached when the employees (by a majority vote) reached a bargain with their employer, the MFB. It was known to the employees when bargaining, that the MFB could only reach an in-principle position. It was the evidence of Mr Mavromatis (the AMWU organiser) that he understood that MFB had achieved approval from the Department of Treasury and Finance (DTF) to reach in-principle agreement on the terms finally agreed.

[9] An agreement between the bargainers was reached on or about 1 November 2011 and this was sent to the relevant Minister by MFB as it had been directed to do. This remained unattended by the Minister until a decision was issued by the Commission in Parks Victoria v The Australian Workers’ Union and others 3 (Parks)4 - some three and one half months after the bargainers had reached agreement within the parameters apparently approved by DTF. When the Parks decision was handed down, the MFB was subsequently told that the Minister would not approve certain clauses in the agreement presented for his approval.

[10] The MFB wrote to the Mr Mavromatis advising that it was not its intention to re-open bargaining, but rather meet to discuss the amendments necessary to be granted Ministerial approval. 5 I pause to note, that it is well known that bargaining parties allocate priorities in what they seek to achieve and, in the result, a bargain is a balance of those priorities and objectives. Whilst I am not aware of the relative priorities of the bargainers, the AMWU made it clear that job security in the present environment was of great importance to the employees on whose behalf it was bargaining. It is curious that one party to the bargain would then want to limit the subsequent negotiations, thus denying to the other party the benefit of reassessing its bargaining priorities.

The Action

[11] It is common ground that the action set out at paragraph 20 of the MFB (with the exception of the overtime ban and the “A” services ban) submission is happening. It is submitted by the MFB that unprotected industrial action will also take place on 17 June. 6

The Arguments

[12] MFB argue that:

• The action described in paragraph 20 is unprotected industrial action and is conceded to be occurring. The existence of the action is common cause.



• The employees are not genuinely seeking to reach agreement because, notwithstanding the unreserved abandonment of any claim during the proceedings which offended RE: AEU or permitted matters, the employees had not met or formulated any response to the MFB about the clause dealing with contractors or apprentices. On this basis, the employees were not genuinely trying to reach agreement and the action constituted industrial action and was not protected. 7

The notice purporting to authorise the industrial action 8 which was handed to a representative of the MFB by Mr Mavromatis did not comply with the Act in so far as the commencement of the action9 and that the action commenced immediately contrary to the Act.10

[13] MFB called no evidence.

[14] The AMWU argued that:

• It was genuinely trying to reach agreement as evidenced by the fact that it had reached agreement with the bargainers for the employer. Further, it had abandoned any position which the employer now stated was an impediment to reaching agreement. Given the time-frame associated with the proceedings it did not know what more it could do.



• The MFB was estopped 11 from arguing that the imposition of the action was inconsistent with the Act as it had agreed with the employees before Commissioner Roe that the action previously taken could be re-imposed immediately. In the alternative it was argued that the action taken did not constitute industrial action because the action was agreed to by the employer of the employees.12

The Statute

[15] The relevant provisions are s.418 and 19(2)(a) of the Act. I set out those provisions.

“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.

“19 Meaning of industrial action

(1) Industrial action means action of any of the following kinds:

(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;

(c) 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;

(d) the lockout of employees from their employment by the employer of the employees.

Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.

(2) However, industrial action does not include the following:

(a) action by employees that is authorised or agreed to by the employer of the employees;

Conclusions

[16] I turn to deal firstly with the argument that the employees of the MFB are not genuinely seeking to reach agreement. I am not persuaded by this argument. The employees believed they reached agreement with their employer. The evidence of Mr Mavromatis was that they were aware of what was meant by in-principle agreement by the MFB, but that he was of the view that before the MFB put the offer it had approval from DTF. The employees acted in good faith. It was not until some three and half months later that the decision in Parks attracted the attention of the Minister so as to direct MFB to abandon the offer of agreement which it thought it was authorised to make. Further, the AMWU had given an unreserved undertaking that it would not pursue the matters over which the Minister believed offended Re: AEU. It would also comply with the decision of the Federal Court in Australian Industry Group v Fair Work Australia.

[17] It is also difficult to argue that one party is not genuinely trying to reach agreement when the MFB seeks to limit the bargaining to matters the Minister believes warrant review rather than reopening the bargaining. 13

[18] On the other hand, the MFB argue that this new position has been known to the employees since at least early May and the demand remained, together with what it referred to as unprotected industrial action. It is argued that the employees took no action to reformulate any claim.

[19] In considering this I take into account that action recommenced by the employees on or around 29 April. There is nothing before me which would indicate that action had been taken by the MFB which suggested that its employees were not genuinely trying to reach agreement. Given the history of this matter, together with the recent undertakings given by the AMWU on behalf of the employees, I am satisfied that the employees of the MFB are genuinely trying to reach agreement. This must be viewed as a practical matter to give proper meaning to the Act.

[20] The next matter relates to the existence or otherwise of industrial action as defined in s19 of the Act. As stated earlier, it is common cause that action is taking place. This is said to arise from an agreement reached in proceedings before Commissioner Roe. It was the evidence of Mr Mavromatis that both he and the MFB agreed that industrial action could commence immediately. It is agreed that this occurred before Commissioner Roe. The AMWU argue that the MFB is now estopped from arguing that the employees had not complied with ss 414(2) and (414)(6) because of its conduct in seeking to go back on an agreement reached before the Commission. I am not persuaded that the doctrine of estoppel as considered in Metropolitan Health Service Board v Australian Nursing Federation supports the contention advanced. Indeed, it appears to me, that the decision more properly stands for the contention that estoppel would not be available in this case.

[21] I reject the estoppel argument.

[22] However, it appears to me that the argument in relation to the agreement of the employer has substance. It is common cause that an agreement was reached in proceedings before Commissioner Roe which stated that action could commence immediately. However, the MFB argue that this should be seen in the context of the provisions of the Act and that it was not agreement to action which would otherwise constitute unprotected industrial action. Evidence was given by Mr Mavromatis to the effect that he acted upon that agreement and advised Mr Gavin Brown that action would commence immediately. It did. The action commenced on or about 29 April and nothing has been brought to my attention that would indicate that the MFB either immediately or at any time leading up to these proceedings took action consistent with its now stated understanding that the action was unprotected industrial action. No evidence was called by the MFB on this point. The conduct of the MFB since 29 April tends to a conclusion that it did agree that action could commence immediately and therefore it does not constitute industrial action pursuant to s. 19(2). The use of the word immediately also supports the conclusion that the MFB did not contemplate action taking place after three days notice. I have also taken into account that it appears that no action was taken under s.474 of the Act. I have considered whether or not the submission of MFB constitutes advice that the agreement reached no longer exists, but the better course is for the MFB to formalise that should it wish to do so.

[23] Finally I turn to the proposed meeting evidenced by Exhibit D2. I accept the submissions of the AMWU that there is not sufficient evidence before me that a meeting would unambiguously constitute threatened unprotected industrial action. I cannot be satisfied, on the state of the evidence, that it would.

[24] Having found that:

• The employees of MFB are genuinely trying to reach agreement with their employer,



• MFB agreed to the action taken by employees from on or about 29 April 2013 and



• There is no other unprotected industrial action threatened, impending or probable or is being organised




I find that there is no jurisdiction to issue the order sought. The application is dismissed.

DEPUTY PRESIDENT

Appearances:

B Terzic with T. Mavromatis on behalf of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

R Dalton, of counsel, with J Tuck, solicitor, on behalf of the Metropolitan Fire and Emergency Services Board.

Hearing details:

2013

Melbourne

June, 13 and 14

 1 (1995) 184 CLR 188.

 2 [2012] FCAFC 108.

 3   [2013] FWCFB 950.

 4 It is appropriate to note that Parks dealt with an issue of the power of the Commission to make a determination which, it was argued, was contrary to the Fair Work (Commonwealth Powers) Act 2009 (Vic) (the Referral Act) This Referral Act is said to be based upon the decision in Re: AEU. I observe but do not make any findings in this case that the Commission can approve agreements which are made between parties which, in the result, may be unenforceable. The issue then might be whether or not there was genuine consent by employees to a term which was unenforceable (other than by the moral obligation of the parties to the deal) if they were not informed of this fact prior to voting.

 5   Exhibit D1.

 6   Exhibit D2.

 7   Section 413 (3) of the Act.

 8   Exhibit D3 and T1.

 9   Section 414(6) of the Act.

 10   Section 414 (2) of the Act.

 11   Metropolitan Health Service Board v Australian Nursing Federation (2000) 176 ALR 46.

 12   Section 19(2) of the Act.

 13   See again exhibit D1.

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