Silcar Pty Ltd v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
[2011] FWA 1853
•28 MARCH 2011
[2011] FWA 1853 |
|
DECISION |
Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.
Silcar Pty Ltd
v
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
(C2011/3735)
SENIOR DEPUTY PRESIDENT WATSON | MELBOURNE, 28 MARCH 2011 |
Alleged industrial action at Silcar Pty Ltd, Bayview Road, Hastings, Vic.
[1] This is an application, made pursuant to s.418 of the Fair Work Act 2009 (the Act), by Silcar Pty Ltd (Silcar) for an order to stop or prevent industrial action. The application arises in the context of a dispute between Silcar and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (AMWU) under the dispute resolution procedure of the BSL Western Port Maintenance Alliance Agreement 2010 - 2013 1 (the Agreement).
[2] This application relates to an earlier application 2 by Silcar under s.418 of the Act and an earlier application3 by the AMWU under s.739 of the Act to settle a dispute in relation to the agreement, arising out of a proposal by Silcar to reallocate employees across a maintenance shift within its Metal Coating Line (MCL) at its Westernport site. Those applications were decided in my decision4 of 17 February 2011. The background of the matters then in issue is set out in paragraph 2 of that decision and need not be repeated here.
[3] In my decision of 17 February 2011, I refused the s.418 application for an order and interpreted the Agreement to the effect that clause 12(b) did not apply to the proposed changes in the allocation of personnel onto particular roster crews. 5 In effect, Silcar was entitled to change the allocation of workers to particular shifts.
[4] Silcar did not require employees to alter their shifts until 20 March 2011 or shortly thereafter. The AMWU lodged an appeal against my decision on 10 March 2011. 6
[5] When Silcar did require some employees to change their shifts, they refused, relying on the status quo provisions of the Agreement, which, the AMWU contended, were reactivated upon it exercising its rights to institute an appeal under the dispute resolution procedure of the Agreement. On 23 March 2011 Silcar applied for an order under s.418, the current application, in light of the refusal of a number of employees to change shifts, on the basis that my earlier decision under s.739 of the Act extinguished the status quo provisions of the Agreement and the refusal to work as directed constituted industrial action for the purposes of s.418 of the Act.
[6] There is no doubt that, following my earlier decision in the s.739 matter, some employees refused to attend for work at the changed shift times advised to them. The central issue for determination in this matter is whether industrial action is happening – whether the refusal to change shifts constitutes industrial action or the exercising of a right, under the Agreement, to the maintenance of the status quo.
[7] The relevant provisions of the Agreement are found in clause 10.1, with the most immediately relevant sections in clause 10.1(d) and (h) underlined.
[8] Clause 10.1 of the Agreement states:
“10.1 Industrial Disputes
The mechanism and procedures for resolving industrial disputes will include, but not be limited to, the following:
a) The employee/s concerned will first meet and confer with their immediate supervisor. The employee/s may choose any person to act on their behalf.
Subject to i, ii, iii, and iv, below, where the employee’s representative is involved he/she shall be allowed the necessary time during working hours to interview the employee(s) and the supervisor.
b) If the matter is not resolved at such a meeting the parties will arrange further discussions involving more senior management as appropriate. The employee may invite a representative of his/her choice to be involved in the discussions. The employer may also invite into the discussions a representative of the employer.
c) If the matter remains unresolved, the employer may refer it to a more senior level of management. The employee may involve their employee representative in the discussions. In the event there is no agreement to refer the matter to a more senior level or it is agreed that such a reference would not resolve the matter the parties shall jointly or individually refer the matter to Fair Work Australia for assistance in resolving the matter.
d) In order to facilitate the procedure in 10.1:
i. The party with the grievance must notify the other party at the earliest opportunity of the problem;
ii. Throughout all stages of the procedure all relevant facts must be clearly identified and recorded;
iii. Sensible time limits must be allowed for completion of the various stages of discussion. However, the parties must co-operate to ensure that the disputes resolution procedures are carried out as quickly as possible.
iv. While the parties are attempting to resolve the matter the parties will continue to work in accordance with this Agreement and their contract of employment unless the employee has a reasonable concern about an imminent risk to his or her health and safety. Subject to relevant provisions of any State or Territory occupational health and safety law, even if the employee has a reasonable concern about an imminent risk to his or her health or safety, the employee must not unreasonably fail to comply with a direction by his or her employer to perform other available work, at the same enterprise, that is safe and appropriate for the employee to perform.
Subject to the order of Fair Work Australia (FWA) the pre-dispute status quo will apply.
e) Conciliation regarding disputes and potential disputes arising out of the operation of this clause will only commence if FWA is satisfied that:
i. Each of the preceding steps in this process has been fully complied with by the parties or either of them:
ii. The parties satisfy FWA that the matter is not able to be resolved by further discussion between the parties directly involved at the workplace.
f) If conciliation fails to resolve the matter in dispute the parties may jointly or individually refer the matter to FWA for arbitration. A matter may only proceed to arbitration under this procedure in the following circumstances:
i. Where FWA is satisfied that the matter is not able to be resolved by further conciliation; and
ii. FWA issues a formal finding to that effect.
If arbitration is necessary FWA may exercise the procedural powers in relation to hearings, witnesses, evidence and submissions, which are necessary to make the arbitration effective.
g) A party to the dispute may appoint another person, organisation or association to accompany or represent them in relation to the dispute.
h) The decision of FWA will bind the parties, subject to either party exercising a right of appeal against the decision to a Full Bench.”
[9] Silcar submitted that clause 10.1 does not have the effect of reapplying the pre-dispute status quo upon the institution of an appeal against a decision arising out of arbitration within the dispute resolution procedure of the Agreement. Rather, it submitted, it provides that the arbitration outcome is binding, unless the aggrieved party, utilising the appeal provisions of the Act, has the decision stayed or obtains permission to appeal and overturns the decision on appeal.
[10] The AMWU argued that clause 10.1(h) has the effect that an arbitration is binding until the aggrieved party exercises their right to institute an appeal. Once an appeal is instituted, the matter is put back into dispute, thus re-enlivening the status quo provisions of the Agreement.
[11] It is clear that clause 10.1(d) of the Agreement applies the pre-dispute status quo, whilst the dispute resolution procedures in clause 10.1 of the Agreement as a whole are followed through.
[12] It is then necessary to consider the purpose and effect of clause 10.1(h) of the Agreement: “The decision of FWA will bind the parties, subject to either party exercising a right of appeal against the decision to a Full Bench”.
[13] Read in the context of clause 10.1 as a whole, clause 10.1(h) is not intended to confer an independent right of appeal on a party to an arbitrated decision under clause 10.1(f) 7 or to incorporate access to a statutory right to institute an appeal within the dispute resolution procedures of the Agreement. Rather, the primary purpose of clause 10.1(h) is to establish that the outcome of an arbitration under clause 10.1(f) is binding on the parties to the arbitration,8 subject to a disturbance of that outcome arising from the exercise of a statutory right of appeal. Such a disturbance might occur as a result of either a stay of the decision, pursuant to s.606 of the Act, or the obtaining of permission to appeal under s.604 of the Act and a decision on appeal which alters or overturns the outcome of the arbitration.
[14] Such an interpretation, reflecting the words of clause 10.1(h) and read in the context of clause 10.1 as a whole, is not absurd or unreasonable. To the contrary, it accords with the general legal proposition that a successful litigant is entitled to the fruits of its litigation pending the determination of any appeal 9 unless and until they establish grounds for the making of an order staying the arbitrated outcome or succeed in their appeal.
[15] If the parties intended that an appeal form part of the dispute resolution procedure, which maintains the pre-dispute status quo, clause 10.1 could have been drafted to that effect. I note in that context that the dispute resolution procedure in the United Firefighters’ Union of Australia and Another v Metropolitan Fire and Emergency Services Board matter 10 relied upon by the AMWU, explicitly includes a provision that “Any determination includes access to appeal” within the 5 step dispute resolution procedure (in clause 12.7 of the Metropolitan Fire and Emergency Services Board, United Firefighters’ Union of Australia, Operations Staff Agreement 200211) with the process as a whole, including clause 12.7, being subject to the status quo provision within clause 12.9 of that Agreement.
[16] I find that the refusal by employees to attend for work at the changed shift times advised to them by Silcar and the encouragement of this action by the AMWU constitutes industrial action within the meaning of s.19(1) of the Act. In those circumstances an order under s.418 of the Act must be made. The order made reflects the terms of the draft order proposed by Silcar and is published in PR507881. It operates from midnight on Monday, 28 March 2011, and will remain in force until 28 June 2011 or until any order of Fair Work Australia which stays or quashes my decision of 17 February 2011 in [2011] FWA 1083.
SENIOR DEPUTY PRESIDENT
Appearances:
N Segbedzi with S. Gauci on behalf of Silcar Pty Ltd.
B Terzic with B Gurney and M. Webster on behalf of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).
Hearing details:
2011.
Melbourne:
March 25.
1 AE881263 PR502336.
2 C2011/3145.
3 C2011/19.
4 [2011] FWA 1083.
5 [2011] FWA 1083, at para 37.
6 C2011/3580.
7 See Soliman v University of Technology, Sydney [2011] FWAFB 1427 at paras 11-14.
8 See Soliman v University of Technology, Sydney [2011] FWAFB 1427 at para 14.
9 The Commissioner of Taxation v The Myer Emporium Ltd (1986) 160 CLR 220 at 222.
10 [2006] 152 FCR 18 at 23.
11 AG819934 PR925132.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR507873>
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