The Gallagher Group WA Pty Ltd v Construction, Forestry, Mining and Energy Union
[2009] FWA 194
•1 SEPTEMBER 2009
[2009] FWA 194 |
|
DECISION |
Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.
v
Construction, Forestry, Mining and Energy Union
(C2009/10336)
DEPUTY PRESIDENT MCCARTHY | PERTH, 1 SEPTEMBER 2009 |
Industrial action.
[1] On 27 August 2009 The Gallagher Group WA Pty Ltd ("the applicant") lodged an application for an Order to stop unprotected industrial action ("the application"). The applicant sought an order to be issued against the Construction, Forestry, Mining and Energy Union ("the CFMEU") and a number of persons identified by the application as employees of the respondent.
[2] The applicant is a building contractor performing works at the Raine Square site ("the site"), a building site in the Central Business District in Perth.
[3] The applicant asserts that unprotected industrial action has occurred at the site. They assert that the CFMEU either organised or recommended the industrial action. The industrial action is claimed to have occurred on:
- Tuesday, 25 August 2009, from about 8.30am until about 11.00am - 11.30am;
- Tuesday, 25 August 2009, when the employees left before the customary finishing time of 4.30am – 5.00pm;
- Wednesday, 26 August 2009, when the employees left before the customary finishing time of 4.30am – 5.00pm; and
- Thursday, 27 August 2009, for the whole day.
[4] The applicant asserts that the underlying reason for the industrial action was a dispute between the applicant, the CFMEU and employees about whether employees were entitled to various payments during some periods of absence such as annual leave.
[5] The CFMEU did not seriously contest that industrial action had not taken place nor the dispute that appears to have led to that industrial action.
[6] The applicant did not assert at the time of hearing that industrial action was happening but claimed that as the reasons for the previous industrial action had not been resolved there was a probability of further industrial action occurring. Mr Alan Burke, the Construction Manager for the applicant, gave evidence to that effect.
[7] Mr Michael Buchan gave evidence for the CFMEU. Mr Buchan stated that there were no plans for any industrial action and that the issue giving rise to the dispute was intended to be discussed with various parties with an interest in the project. He appeared to be confident that the matters would be resolved.
[8] The applicant asserted that there was no guarantee that the dispute would be resolved and if it were not then it was not improbable that further industrial action would occur.
[9] It appears to me that industrial action is not happening nor is it being organised. It also appears to me that industrial action is not threatened or impending.
[10] It appears to me that there is the possibility of further industrial action happening. For that possibility to become actual industrial action it would seem to me it would likely follow from (i) the discussions that are intended to take place to not occur or (ii) those discussions to not result in the resolution of the dispute and (iii) the CFMEU officials to organise or recommend industrial action and/or (iv) the employees at the site to decide to take industrial action.
[11] Mr Buchan and the applicant’s witnesses’ gave evidence that relationships between the applicant and the CFMEU officials at the site had been healthy and that other issues had been resolved without industrial action occurring. The evidence did not establish to my satisfaction that there had been a history of industrial action or a pattern of behaviour of industrial action or threats of industrial action.
[12] I am not satisfied at this juncture that the possibility of industrial action occurring is anything more than that. It does not appear to me that there is a probability of industrial action.
[13] The application is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
T. Caspersz on behalf of the applicant
S. Harben on behalf of the Australian, Building & Construction Commission
M. Swinbourn on behalf of the Construction, Forestry, Mining & Energy Union
Hearing details:
2009.
Perth:
August, 28, 31.
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