Tas Paper Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) and Construction, Forestry, Mining and Energy Union
[2009] FWA 1872
•22 DECEMBER 2009
[2009] FWA 1872 |
|
DECISION |
Fair Work Act 2009
s.425 - Application to suspend protected industrial action, cooling off
v
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
and
Construction, Forestry, Mining and Energy Union
(B2009/11214)
SENIOR DEPUTY PRESIDENT WATSON | MELBOURNE, 22 DECEMBER 2009 |
Application for order to suspend or terminate protected industrial action.
[1] This decision arises from an application by Tas Paper Pty Ltd (Tas Paper), pursuant to s.425 of the Fair Work Act 2009 (the Act) for an order to suspend protected industrial action notified by the Construction, Forestry, Mining and Energy Union (CFMEU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) for a cooling off period of two weeks.
Background
[2] The background to the application is as follows:
- The current agreement, the Australian Paper Agreement 2006-2009, 1 passed its nominal expiry date on 30 June 2009.
- Relevantly, the current agreement operates at Australian Paper Tasmanian Mills (Tas Paper) located at:
• Wesley Vale Mill - 226 Mill Road, Wesley Vale, Tasmania; and
• Burnie Mill - Marine Terrace, Burnie, Tasmania.
- Negotiations for a replacement agreement in respect of Tas Paper commenced in mid-2009.
- The negotiations were suspended, at the request of Tasmanian Paper in July whilst the parent company, PaperlinX Ltd, undertook a business review of the Tasmanian Paper operations.
- Arising from the review, PaperlinX announced that it would sell in part or in whole its Burnie and Wesley Vale operations or close them down.
- Negotiations for an agreement recommenced in October 2009.
- The CFMEU and the AMWU, both bargaining representatives for employees, introduced into the bargaining negotiations, new claims in relation to redundancy and the security of entitlements which would arise in the event of full or partial closure of the Tasmanian operations. In respect of these claims, the company tabled a “cross guarantee deed” by which PaperlinX would guarantee redundancy obligations of Tas Paper. 2 The unions indicated in negotiations that their concern was the security of the entitlements in the event that the business was sold to a third party.3 The minutes record that “The Company pointed out that if the business was sold, discussions about entitlements would be held between the Company, the Unions and the new owner. This is not part of EBA discussions, but part of transmission of business”.4
- On 27 October 2009, Commissioner Gay made a s.443 protected industrial action ballot order in relation to the bargaining. 5
- On 18 November 2009, the Australian Electoral Commission reported that a majority of employees supported industrial action in various forms, including an unlimited number of one hour stoppages of work in all or part of the workplace.
- The unions, on 8 December 2009, gave the company notice of protected industrial action to commence on 14 December 2009, which was not proceeded with on the basis of an agreement as to the conduct of a paid workforce meeting.
- On 9 December 2009, PaperlinX Ltd announced to the stock exchange that it would close the Wesley Vale operation and the B4 plant at Burnie. It also announced that it would sell or close the B10 plant at Burnie.
- On 17 December 2009, the unions gave the company notice of protected industrial action in the form of one hour stoppages of work at 1.00 pm and 8.00 pm on 23 December and 1.00 pm on 24 December 2009.
- On 18 December 2009, the current application was made.
- On 21 to 24 December 2009, representatives of a potential buyer of the B10 plant at Burnie are meeting with Tas Paper and Tas Paper is trialling, for the potential buyer, the production of paper rolls from imported paper pulp and the dispatch of the rolls to the potential buyer’s overseas operations, to be made into A4 paper.
The legislation
[3] Part 3-3—Industrial action - Division 6—Suspension or termination of protected industrial action by FWA – of the Act sets out a range of circumstances in which Fair Work Australia must suspend of terminate protected action. Section 425 deals with the suspension of protected industrial action – cooling off period, as follows:
“(1) 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 following matters:
(a) whether the suspension would be beneficial to the bargaining representatives for the agreement because it would assist in resolving the matters at issue;
(b) the duration of the protected industrial action;
(c) whether the suspension would be contrary to the public interest or inconsistent with the objects of this Act;
(d) any other matters that FWA considers relevant.
(2) FWA may make the order only on application by:
(a) a bargaining representative for the agreement; or
(b) a person prescribed by the regulations.”
Jurisdiction
[4] The CFMEU, supported by the AMWU, submitted that there is no jurisdiction for Fair Work Australia to make the orders sought. It submitted that Fair Work Australia must make an order, if satisfied of the matters in s.425(1)(a) to (c) of the Act,only in circumstances where protected industrial action for a proposed enterprise agreement “is being engaged in”. It submitted that this means protected industrial action which is occurring and not threatened, probable or imminent industrial action. It submitted that in the absence of any current protected industrial action occurring, no jurisdiction exists to make an order suspending the protected industrial action.
[5] Whilst the CFMEU relied on a decision 6 of Senior Deputy President O’Callaghan, in the context of s.423 of the Act, it provides little guidance in the current circumstances because it was decided by reference to s.423(6) of the Act, which requires that Fair Work Australia be satisfied that the protected industrial action has been engaged in for a protracted period of time (emphasis added).
[6] The Australian Industry Group, representing Tas Paper, submitted that the expression “engaged in” in s.425 of the Act includes future industrial action. It submitted that the protected action has been notified to the company and is known and clear, as are the significant consequences of such action – a significant risk to the possible sale of the B10 plant at Burnie and the potential to retain up to 170 jobs in Burnie. It submitted that the inclusion of future known industrial action in the expression “engaged in” in s.425 was intended by the Parliament. Otherwise, it submitted, a cooling-off order would not be available in relation to foreshadowed protected industrial action, even in circumstances where Fair Work Australia was satisfied that an order should be made, having regard to the matters in s.425(1)(a) to (c) of the Act.
Conclusion
[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.
[14] In conclusion I note that there remains an opportunity for further discussions before the intended action advised to Tas Paper occurs, which might result in an understanding as to the protection of entitlements sufficient to avoid the occurrence of the action. Fair Work Australia is available to assist the parties in that regard, at short notice.
SENIOR DEPUTY PRESIDENT
Appearances:
S Caylock for Tas Paper Pty Ltd.
R Read for the Construction, Forestry, Mining and Energy Union.
M Hogan for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).
Hearing details:
2009.
Melbourne:
December 21.
1 AC303325.
2 Exhibits CFMEU 1 and 2. See also 10 December 2009 letter in Exhibit O’Brien 3, point 7.
3 Exhibit CFMEU 2.
4 Exhibit CFMEU 2.
5 PR990283.
6 Nystar Port Pirie Pty Ltd v Construction, Forestry, Mining and Energy Union and Others [2009] FWA 1148.
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