Murray Goulburn Co-Operative Co. Limited

[2014] FWC 4932

[2014] FWC 4932

FAIR WORK COMMISSION

INTERIM DECISION

Fair Work Act 2009
s.418—Industrial action

Murray Goulburn Co-Operative Co. Limited
(C2014/5434)

COMMISSIONER RYAN MELBOURNE, 23 JULY 2014

Alleged Industrial Action of employees at various sites: Leongatha, Koroit, Tangambalanga, Cobram, Maffra and Rochester.

[1] An application for an order to stop unprotected industrial action was filed by Murray Goulburn Co-Operative Co. Ltd with the Fair Work Commission at 4.45pm on 16 July 2014. The application alleged that unprotected industrial action was being organised by both “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and was pending. In a covering letter with their application Murray Goulburn Co-Operative Co. Ltd requested that a hearing of the application be held after 10am on 17 July 2014.

[2] The application was listed for hearing at 10am on 17 July 2014 and the Notice of Listing was sent to each of the Respondent unions at 5.20pm on 16 July 2014 and a copy of the application was attached to the Notice of Listing.

[3] At the hearing on 17 July 2014 the AMWU was represented by Mr Barry Terzic. There was no appearance by the CEPU and the CEPU has not at any time contacted my Chambers to explain their non appearance at the hearing.

[4] The basis for the application being made by Murray Goulburn Co-Operative Co. Ltd was that it took the view that the Notice given by each of the AMWU and CEPU pursuant to s.414 that employees were intending to take protected industrial action was in fact invalid and therefore the proposed industrial action would not be protected industrial action but would in fact be unprotected industrial action.

[5] The nature of the industrial action identified in each of the s.414 notices given to Murray Goulburn Co-Operative Co. Ltd by each of the AMWU and CEPU was:

“Stoppages on the performance of all work for unspecified periods of time.”

[6] Murray Goulburn Co-Operative Co. Ltd came to the view that the notice under s.414 was defective because it alleged that the description of the proposed industrial action was too vague. Murray Goulburn Co-Operative Co. Ltd contended that their view was consistent with authorities on this point.

[7] The AMWU contended that it was very well aware of the authorities and that it had crafted the notice pursuant to s.414 so that the notice was a valid notice under s.414 and thus the proposed industrial action was protected industrial action.

[8] At the hearing I briefly heard from both Murray Goulburn Co-Operative Co. Ltd and the AMWU before suggesting to the parties that here may be value in the matter being adjourned to allow the parties an opportunity to resolve the key concern of Murray Goulburn Co-Operative Co. Ltd. Both parties agreed to this course and after conferring with each other both the AMWU and Murray Goulburn Co-Operative Co. Ltd came to an agreed position that the AMWU would rescind its notice under s.414 and re-issue a new notice with more specific details as to the timing of the proposed protected industrial action to be taken. On the basis that the AMWU would write to Murray Goulburn Co-Operative Co. Ltd in the afternoon of the 17 July 2014 formally withdrawing the notice issued pursuant to s.414 then Murray Goulburn Co-Operative Co. Ltd would discontinue the application in this matter.

[9] During the proceedings on 17 July 2014 Mr Terzic suggested (and I put it no higher than that) to the Commission and to Murray Goulburn Co-Operative Co. Ltd that the position of the CEPU was the same as the position adopted by the AMWU.

[10] I am very mindful that in workplaces where the AMWU and CEPU comprise a small maintenance workforce both unions often act in concert or in a complimentary manner to each other. In such workplaces the two unions will often have a single enterprise agreement covering maintenance employees which is different to the enterprise agreement covering production employees, the two unions will often make identical or near identical applications for protected action ballot orders and the two unions will invariably take the same protected action at the same time.

[11] I have also dealt with a number of disputes arising under the terms of an enterprise agreement in such workplaces which involve maintenance employees and where either the AMWU or CEPU will be the lead union and effectively represent the interests of the other.

[12] It was unsurprising then, that when the AMWU suggested that the CEPU adopted the same position as the AMWU, that both Murray Goulburn Co-Operative Co. Ltd and the Commission acted on a presumption that the AMWU and CEPU did have the same position on the proposed resolution of the issue raised by this application.

[13] At 5.32pm on 18 July 2014 the legal representative of Murray Goulburn Co-Operative Co. Ltd contacted my Chambers by email to advise that the CEPU were not agreeing to the resolution agreed to between the AMWU and Murray Goulburn Co-Operative Co. Ltd

“Dear Associate,

Further to our earlier email, we have received correspondence (below) from Mr Reidy indicating that the CEPU will not withdraw its notice of intended action dated 10 July 2014 (in breach of the agreement reached between the parties at yesterday’s hearing).

This is obviously an extremely disappointing development given the efforts made by the parties to resolve the matter at the hearing and the steps taken by the AMWU to comply with the agreement.

Our client will endeavour to reach agreement with the CEPU over the weekend. However, should agreement not be reached, our client may request that the Commissioner list the matter for hearing at an early stage next week. Obviously, our client does not press its application in relation to the AMWU’s notice (given that it is now withdrawn).”

[14] The legal representative of Murray Goulburn Co-Operative Co. Ltd contacted the Commission at 4.41pm on 22 July 2014 requesting that the matter be listed for hearing on the basis that the CEPU would not accept the resolution agreed to between the AMWU and Murray Goulburn Co-Operative Co. Ltd at the hearing on 17 July 2014. The email was as follows:

“Dear Associate,

Further to the email below, our client has unfortunately been unable to resolve the matters arising from the CEPU’s breach of last week’s agreement despite its best efforts.

With this in mind, we respectfully request that the Commission list the matter for hearing.”

[15] The matter was then listed for further hearing at 1pm on 23 July 2014 with the Notice of Listing being sent to all parties at 4.42pm on 22 July 2014.

[16] Overnight it occurred to me that the Commission had not considered the requirements of s.420 of the Act which provides as follows:

“420 Interim orders etc.

Application must be determined within 2 days

(1) As far as practicable, the FWC must determine an application for an order under section 418 or 419 within 2 days after the application is made.

Interim orders

(2) If the FWC is unable to determine the application within that period, the FWC must, within that period, make an interim order that the industrial action to which the application relates stop, not occur or not be organised (as the case may be).

(3) However, the FWC must not make the interim order if the FWC is satisfied that it would be contrary to the public interest to do so.

(4) In making the interim order, the FWC does not have to specify the particular industrial action.

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

[17] In the present circumstances the Commission erred in accepting and relying on the suggestion put to it by the AMWU that the CEPU adopted the same position as to resolution of the issue that had been agreed to between the AMWU and Murray Goulburn Co-Operative Co. Ltd.

[18] I make no criticism of Mr Terzic and none is warranted.

[19] Whilst it might be convenient in conferences in relation to a dispute arising under the terms of an enterprise agreement for the Commission to accept that in a dispute involving maintenance workers that the AMWU represents the CEPU or vice versa it is singularly inappropriate to act on the same presumption in a matter arising under s.418 in which both the AMWU and CEPU are separate respondents.

[20] In the present matter where the CEPU had been notified of the hearing on 17 July 2014 and had not attended that hearing then the AMWU could only represent the interests of the CEPU if the CEPU had in accordance with its rules given a formal and clear authority to the AMWU to represent the interests of the CEPU. Such an authority would either be a decision of the relevant committee of management or a written authority from an officer of the CEPU who themselves had the authority to issue such an authorisation. No such documented authority was presented to the Commission and in the absence of such documented authorisation the Commission was obliged to consider the need to issue an interim order pursuant to s.420 against the CEPU.

[21] Even though the application in this matter is listed for further hearing later today I must consider whether an interim order should be issued.

[22] As advised at the hearing on 17 July 2014 the industrial action complained of in this application has already occurred on one occasion.

[23] Whilst there is an issue to be resolved as to whether the s.414 notice issued by the CEPU is valid or not and whether the identified industrial action is protected or not, there is an arguable case that the identified industrial action is unprotected industrial action.

[24] I cannot be satisfied at this point of time that it would be contrary to the public interest to issue an interim order in this matter.

[25] Therefore pursuant to the requirement of s.420 I will issue an interim order against the CEPU in this matter.

COMMISSIONER

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