MSF Sugar Limited

[2013] FWC 6332

[2013] FWC 6332

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.424 - Application to suspend or terminate protected industrial action - endangering life etc.

MSF Sugar Limited
(B2013/1166)

COMMISSIONER LEWIN MELBOURNE, 29 AUGUST 2013

Application to suspend or terminate protected industrial action - endangering life.

[1] This matter concerns an application by MSF Sugar Limited (MSF) under s.424 of the Fair Work Act 2009 (the Act) to suspend or terminate protected industrial action. The application is made in respect of protected industrial action which is allegedly being engaged in or is threatened, impending or probable by employees of MSF at its Mulgrave Sugar Mill in Gordonvale Queensland, for whom the The Australian Workers’ Union (AWU), the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) act as bargaining agents for a proposed Enterprise Agreement between MSF and those employees.

[2] The application was filed on 23 August 2013.

[3] S.424 of the Act is as follows:

424 FWC must suspend or terminate protected industrial action—endangering life etc.

Suspension or termination of protected industrial action

(1) The FWC must make an order suspending or terminating protected industrial action for a proposed enterprise agreement that:

(a) is being engaged in; or

(b) is threatened, impending or probable;

if the FWC is satisfied that the protected industrial action has threatened, is threatening, or would threaten:

(c) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or

(d) to cause significant damage to the Australian economy or an important part of it.

(2) The FWC may make the order:

(a) on its own initiative; or

(b) on application by any of the following:

(i) a bargaining representative for the agreement;

(ii) the Minister;

(iia) if the industrial action is being engaged in, or is threatened, impending or probable, in a State that is a referring State as defined in section 30B or 30L—the Minister of the State who has responsibility for workplace relations matters in the State;

(iib) if the industrial action is being engaged in, or is threatened, impending or probable, in a Territory—the Minister of the Territory who has responsibility for workplace relations matters in the Territory;

(iii) a person prescribed by the regulations.

Application must be determined within 5 days

(3) If an application for an order under this section is made, the FWC must, as far as practicable, determine the application within 5 days after it is made.

Interim orders

(4) If the FWC is unable to determine the application within that period, the FWC must, within that period, make an interim order suspending the protected industrial action to which the application relates until the application is determined.

(5) An interim order continues in operation until the application is determined.

[4] The application was heard on Tuesday, 27 August 2013 and Wednesday, 28 August 2013 at Brisbane, on the basis that an application for an order under s.424 must, as far as practicable, be determined within five days after it is made.

[5] The Commission is unable to determine the application within the five days after it was made.

[6] In these circumstances s 424(4) of the Act directs that an interim order suspending the protected industrial action to which the application relates must be made.

[7] An interim order suspending the protected industrial action until the application is determined will issue accordingly.

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