OneSteel Reinforcing Pty Ltd v Australian Workers' Union, The

[2018] FWC 6773

[2018] FWC 6773

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action

OneSteel Reinforcing Pty Ltd
v
Australian Workers’ Union, The
(C2018/6125)

COMMISSIONER MCKINNON MELBOURNE, 1 NOVEMBER 2018

Alleged industrial action at OneSteel Reinforcing Pty Ltd, Noble Park (Victoria) site.

[1] On Thursday 1 November 2018, OneSteel Reinforcing Pty Ltd (OneSteel) applied under section 418 of the Fair Work Act 2009 (the Act) for orders that unprotected industrial action stop, not occur and not be organised. The application was directed at The Australian Workers’ Union (AWU) and employees of OneSteel employed at its Noble Park site in Victoria (the Employees) who are covered by the OneSteel Reinforcing Enterprise Agreement 2013-2016 (the Agreement). The AWU opposes the application.

[2] The matter was listed for hearing on Thursday 1 November 2018. At the hearing, the AWU indicated that it sought to oppose the application as the conduct of employees in question was based on reasonable concerns about imminent risks to their health or safety. It sought additional time to file its materials in support of that position.

Relevant law

[3] Section 418 of the Act requires the Commission to make an order that industrial action stop, not occur or not be organised if satisfied that the relevant statutory conditions are met.

[4] Section 420(1) of the Act provides that, as far as practicable, an application under section 418 must be determined within 2 days after the application is made. If the Commission is unable to determine the application within that period, it must make an interim order that the industrial action to which the application relates stop, not occur or not be organised.

[5] In CPSU v Fredon Industries Pty Ltd t/a Fredon 1, a Full Bench of the Commission considered the making of interim orders under section 420, as follows:

“[13] The circumstances in which the duty in s.420(2) to make interim orders was required to be discharged was considered by a Full Bench in McKewin v Lend Lease Project Management & Construction (Australia) Pty Ltd. Three relevant propositions may be gleaned from that decision:

(1) A conclusion by the Commission that it is unable to determine an application within the two-day period specified in s.420(1) is a condition precedent for the making of an interim order under s.420(2). “Absent such a conclusion, the Commission is under no duty, and has no power, to make an interim order.”

(2) The requirements of procedural fairness apply to the making of an interim order under s.420(2), although depending on the circumstances the requirement to hear affected parties may be circumscribed by the time constraints imposed by s.420(1) and (2). 

(3) A failure to list an application for s.418 orders for final hearing expeditiously after an interim order has been made under s.420(2) may make it difficult to conclude that the Commission’s obligation in s.420(1) has been complied with.

[14] To these we would add a fourth proposition: the effect of s.420(3) is that the Commission must, prior to making an interim order under s.420(2), give consideration to whether the making of the interim order would be contrary to the public interest. A failure to consider the public interest in this way may result in an interim order being made contrary to the mandatory requirement in s.420(3).”

Consideration

[6] Having heard today from the parties, I find that I am unable to determine the application fairly within the two-day period specified in s.420(1). The AWU seeks to adduce materials in reply to the application and OneSteel does not object to that course.

[7] Procedural fairness weighs in favour of a short additional period being allowed so the parties can properly put their case. This must be weighed against the statutory imperative to deal with applications of this kind expeditiously. The AWU has given an undertaking that employees will return to work immediately pending final resolution of the matter. In the circumstances, I am satisfied that it would not be contrary to the public interest to make an interim order under section 420 pending determination of the substantive application.

Orders made

[8] I will issue an interim order under section 420(2) of the Act.

[9] The matter will be listed for hearing at 10.00am on Monday 5 November 2018.

COMMISSIONER

Appearances:

M Mead for OneSteel Reinforcing Pty Ltd

P Reilly for The Australian Workers’ Union

Hearing details:

2018.

Melbourne:

November 1.

 1   [2016] FWCFB 2744

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