Queensland Cane Growers’ Association Union of Employers

[2013] FWC 6987

[2013] FWC 6987

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.426—Industrial action

Queensland Cane Growers’ Association Union of Employers
(B2013/1164)

COMMISSIONER LEWIN MELBOURNE, 19 SEPTEMBER 2013

Application to suspend protected industrial action, significant harm to a third party - jurisdictional objection - meaning of industrial action “being taken” - scope of s.426 - past industrial action not a jurisdictional basis for an order suspending industrial action under s.426.

Introduction

[1] This matter concerns an application by Queensland Cane Growers’ Association Union of Employers, the Applicant, under s.426 of the Fair Work Act 2009 (the Act) to suspend or terminate protected industrial action.

[2] The application is made in respect of protected industrial action by employees of MSF Sugar Limited (MSF) at its Mulgrave Sugar Mill in Gordonvale, Queensland, for whom 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 Representatives for a proposed Enterprise Agreement, between MSF and those employees (the Bargaining Representatives).

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

Statutory Provisions

[4] S.426 of the Act is as follows:

426 FWC must suspend protected industrial action—significant harm to a third party

Suspension of protected industrial action

(1) The FWC must make an order suspending protected industrial action for a proposed enterprise agreement that is being engaged in if the requirements set out in this section are met.

Requirement—adverse effect on employers or employees

(2) The FWC must be satisfied that the protected industrial action is adversely affecting:

(a) the employer, or any of the employers, that will be covered by the agreement; or

(b) any of the employees who will be covered by the agreement.

Requirement—significant harm to a third party

(3) The FWC must be satisfied that the protected industrial action is threatening to cause significant harm to any person other than:

(a) a bargaining representative for the agreement; or

(b) an employee who will be covered by the agreement.

(4) For the purposes of subsection (3), the FWC may take into account any matters it considers relevant including the extent to which the protected industrial action threatens to:

(a) damage the ongoing viability of an enterprise carried on by the person; or

(b) disrupt the supply of goods or services to an enterprise carried on by the person; or

(c) reduce the person’s capacity to fulfil a contractual obligation; or

(d) cause other economic loss to the person.

Requirement—suspension is appropriate

(5) The FWC must be satisfied that the suspension is appropriate taking into account the following:

(a) whether the suspension would be contrary to the public interest or inconsistent with the objects of this Act;

(b) any other matters that the FWC considers relevant.

Order may only be made on application by certain persons

(6) The FWC may make the order only on application by:

(a) an organisation, person or body directly affected by the protected industrial action other than:

(i) a bargaining representative for the agreement; or

(ii) an employee who will be covered by the agreement; or

(b) the Minister; or

(ba) if the industrial action is being engaged in 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; or

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

(c) a person prescribed by the regulations.

Hearing of the application

[5] The application was heard on Wednesday, 28 August 2013 at Brisbane. I decided to dismiss the application, ex tempore, on that day. These are my reasons for that decision.

Jurisdictional Objection

[6] Prior to and at the hearing of the application the aforementioned Bargaining Representatives objected to the application, on the basis that there was no industrial action being engaged in by employees of MSF in respect of which the Order sought could be made.

[7] It was submitted by the Bargaining Representatives that, having regard to the provisions of s.426(1), where there is no relevant protected industrial action that is being engaged in, the Commission has no jurisdiction or power to make an order of the kind sought by the Applicant.

[8] In response to this objection the Applicant filed written submissions which were marked as Exhibit A1 and are set out below in full.

Consideration

[9] It will be noted that the submission of the Applicant addresses the Applicant’s standing to make the application and the objection of the Bargaining Representatives that the jurisdiction and power to make the Order sought by the application was not available to the Commission, in relation to protected industrial action by the relevant employees of MSF.

[10] For reasons which follow, it is not necessary to determine the competence of the Applicant to make the application.

[11] In the submissions above a chronological narrative of industrial action by employees of MSF is set out. That narrative was not disputed by the Bargaining Representatives for the purpose of my determination of the jurisdictional objection raised by them.

[12] It will be observed that the submissions of the Applicant do not rely upon the fact of extant industrial action by MSF employees at the time of the hearing or indeed any prospective industrial action notified by the Bargaining Representatives, in respect of which the Commission could reach the conclusion that industrial action was “being engaged in”.

[13] Rather, the submissions rely on the fact that industrial action “was taking place” on Friday 23 August 2013, when the application was made.

[14] In my view, past industrial action which has ceased cannot of itself give rise to the power conferred upon the Commission by s.426 of the Act.

[15] It seems to me that the terms of s.426 of the Act are much narrower than, for example, those of s.424 of the Act, which confer jurisdiction and power upon the Commission to Order the suspension or termination of industrial action being taken and industrial action which is threatened, impending or probable.

[16] In my view, the absence of the power to make an Order terminating industrial action under s.426 of the Act and the absence of power to suspend threatened, impending or probable industrial action commands a much narrower reading of the power conferred upon the Commission by s.426 of the Act than that conferred by s.424 of the Act. If I am correct in this the legislature intends that the powers conferred by s.426 of the Act are directed to a more limited set of facts and circumstances and a more limited remedy with which to affect such facts and circumstances.

[17] In this respect, it should be noted that the power conferred by the provisions of s.424 of the Act is also temporally confined and directed to extant industrial action “being engaged in” and industrial action “threatened, impending, or probable”, in the future. No reference to protected industrial action which was or has been taken but is no longer “being engaged in” appears in those provisions.

[18] Consequently, it seems to me that the submissions of the Applicant, which rely exclusively on past industrial action to ground the power to make the Order sought by the application are incompatible with the terms of s.426 of the Act, which should be considered in the overall context of Division 6, Part 3-3, Industrial Action of Chapter 3 of the Act.

[19] I respectfully agree with my colleagues Senior Deputy President Watson and Commissioner Spencer who have reached similar conclusions in the cases of Tas Paper Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 1 (Tas Paper) and Sucrogen Australia Pty Ltd v The Australian Workers’ Union; “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia2 (Sucrogen).

[20] The applicant’s submissions above make accurate reference to the decision of Commissioner Spencer in the Sucrogen case. In addition I refer to the “Conclusion” in the Tas Paper decision of Senior Deputy President Watson below. While the Tas Paper decision dealt with the power conferred by s.425 of the Act, for my purposes, the reasoning is equally applicable to the provisions of s.426 of the Act.

[7] The expression “engaged in” in s.425 must be read in the context of the Act in which it appears and in the context of Division 6 in particular. Division 6 sets out a range of circumstances in which Fair Work Australia must suspend or terminate protected industrial action.

[8] Section 423 of the Act deals with the suspension or termination of protected industrial action in relation to “significant economic harm etc.” It provides that “FWA may make an order suspending or terminating protected industrial action for a proposed enterprise agreement that is being engaged in if (statutory) requirements …. are met”. One of those requirements in s.423(6) is that “the protected industrial action has been engaged in for a protracted period of time”.

[9] Section 424 of the Act deals with the suspension or termination of protected industrial action in relation to “endangering life etc.” It provides that:

“FWA 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 FWA is satisfied that the protected industrial action has……”

[10] The provision in s.425 of the Act, provides that “FWA must make an order suspending protected industrial action for a proposed enterprise agreement that is being engaged in if FWA is satisfied that the suspension is appropriate taking into account the (statutory) matters”.

[11] Section 426 of the Act, concerning significant harm to a third party, provides that “FWA must make an order suspending protected industrial action for a proposed enterprise agreement that is being engaged in if the (statutory)requirements …..are met”.

[12] Within Division 6 of Part 3-3, the Parliament has associated the making of orders suspending or terminating protected industrial action in ss.423, 425 and 426 of the Act to action that is being engaged in. Section 424 of the Act, by contrast, deals with orders in circumstances of protected industrial action that is being engaged in; or is threatened, impending or probable. This distinction within Division 6 suggests that s.425 is restricted in its operation to protected industrial action which is occurring and does not extend to threatened, impending or probable.

[13] Whilst protected industrial action has been foreshadowed by the unions in their notices of intended industrial action, there is at this time no protected industrial action that is being engaged in. In that circumstance, there is no jurisdiction to make the order sought.

Conclusion

[21] For the reasons stated above, at Brisbane on 28 August 2013, I decided that there was no industrial action being engaged in by employees of MSF at its Mulgrave Mill to which the application was directed and accordingly there was no jurisdiction to make the Order sought by the application. The application was dismissed ex tempore. A formal Order dismissing the Application is attached to these reasons for decision.

Appearances:

Mr. G. Trost for the Applicant

Ms L Butler for the AMWU

Ms K Inglis for the ETU

Mr T McKernan for the AWU

Hearing details:

Before Commissioner Lewin

2013

Brisbane:

28 August 2013.

 1   [2009] FWA 1872.

 2   [2010] FWA 6192.

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