Silcar Pty Ltd v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

[2011] FWA 660

[2011] FWA 660

FAIR WORK AUSTRALIA

STATEMENT

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)
(C2011/3145)

s.739 - Application to deal with a dispute

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
Silcar Pty Ltd
(C2011/19)

SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 1 FEBRUARY 2011

Alleged industrial action at Silcar Pty Ltd, Hastings, VIC.

[1] This statement arises from 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 and prevent industrial action, filed on 28 January 2011. It is related to an application under s.739 of the Act in Matter C2011/19, to deal with a dispute in accordance with the dispute resolution procedure of the BSL Western Port Maintenance Alliance Agreement 2010 - 2013 (the Agreement), which had been filed by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (AMWU) on 24 January 2011 and allocated to Commissioner Ryan.

[2] The s.418 application was listed at 10.00 am on 31 January 2011. At the outset of the s.418 proceedings, I indicated to the parties that I had given consideration as to whether an interim order should be made, pursuant to s.420 of the Act and decided, in the circumstances that there was a live argument as to whether the action complained of was unprotected industrial action or the maintenance of the pre-dispute status quo and where the making of an interim order would disturb the pre-dispute status quo, that it would be contrary to the public interest to make an interim order without affording the respondent an opportunity to be heard.

[3] With the consent of the parties, I adjourned the s.418 matter into conciliation. The relationship of the two matters was reinforced by the discussions within conciliation, such that the conciliation canvassed the matters which would arise in the s.739 matter before Commissioner Ryan in the conciliation phase, as required by the Agreement’s disputes procedure. The underlying issues in dispute concerned roster changes.

[4] The matters arising from the two applications were not settled, although the parties indicated a preparedness to further discuss the matters in dispute.

[5] Given the relationship between the two matters and the substantial conciliation in relation to the s.739 matters, I have reallocated the application under s.739 in Matter C2011/19 from Commissioner Ryan to myself.

[6] The two matters have been relisted for 1.00 pm on Wednesday, 2 February 2011, for further conciliation. Silcar did not seek to argue for an interim s.418 order.

[7] In the event that the matters are not resolved in further conciliation, bearing in mind substantial conciliation has already occurred, I will proceed to determine the s.418 application and, if necessary, proceed to arbitration in relation to the s.739 matter.

[8] Both Silcar and the AMWU should be in a position to put their case in relation to the s.418 application and the s.739 application at 1.00 pm on Wednesday, 2 February 2011. Both parties should also be available at 1.00 pm on Thursday, 3 February 2011, if required, in the event that any arbitration required cannot be concluded on 2 February 2011.

[9] To facilitate further discussions and, if necessary, conciliation and, if necessary, arbitration, Silcar has agreed to allow delegate Mr B Gurney time on Tuesday, 1 February 2011 to talk, both on-site and by telephone, to employees affected by the proposed roster changes. Further, Silcar has agreed to release affected employees, Wicks and Pursey, to attend the Fair Work Australia proceedings on Wednesday, 2 February 2011 if they choose to attend, provided they advise Silcar by midday on Tuesday, 1 February 2011, if they wish to attend in order that coverage can be arranged. Other affected employees, not rostered to work on Wednesday, 2 February 2011, may attend on their day off if they so choose. The AMWU will provide any further information about the issues of concern to affected employees to Silcar and any specific proposals to resolve the issues in dispute as early as possible and certainly prior to the Wednesday proceedings, in order that Silcar is in a position to respond before or at the latest at the commencement of the further conciliation on Wednesday, 2 February 2011.

SENIOR DEPUTY PRESIDENT

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