Thiess Pty Ltd v Construction, Forestry, Mining and Energy Union

[2014] FWC 1769

[2014] FWC 1769

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.

Thiess Pty Ltd
v
Construction, Forestry, Mining and Energy Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2014/3423)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 17 MARCH 2014

Summary: application under s.418 of the Act that unprotected industrial action stop and not be organised - adjournment application - Full Bench in Re: Fluor - application granted - application for interim order - whether s.420 of the Act ousts discretion to make an interim order under s.589 of the Act - jurisdiction - discretion not exercised - interim orders and safety - public interest.

[1] On 13 March 2014 an application under s.418 of the Fair Work Act 2009 (“the Act”) by Thiess Pty Ltd (“the Applicant”) was filed in the Commission (at 4.01 pm) and allocated to me.

[2] The application sought orders that the alleged unprotected industrial action by employees employed by the Applicant working under the Thiess Pty Ltd QCLNG Project Upstream Works Agreement 2011, the applicable agreement, and who perform work at the CSG project at QCLNG Thiess Woleebee Creek CPP and FCS Site (“the site”) stop taking unprotected industrial action, and that the CFMEU and the CEPU not organise unprotected industrial action.

[3] Upon being advised that an application was being made I directed the following (template) correspondence to the legal representatives of the Applicant (Herbert Smith Freehills):

Dear [...]

[....]

The Commission will seek from you at the commencement of the hearing or procedural hearing (see below) details regarding:

1. at what time and with what level of detail (and by what means) you informed the respondent(s) to the s.418 application about the intention to file the application;

2. at what time was (a) the application, (b) witness statements and (c) the order for substituted service (if sought) served on the respondent;

3. whether your client seeks to confer about the matter the substance of the application prior to the hearing of the matter;

4. whether, in the event an adjournment is sought by the Respondent, an application will be made for an interim order under s.589 of the Fair Work Act 2009 (“the Act”); and

5. whether, in the event an adjournment is sought by the Respondent, an application will be made for an interim order under s.420 of the Act?

If an adjournment is sought by the Respondent by early notice, a procedural hearing will be conducted at a time earlier than any listed substantive hearing to determine that application.

If an interim order is sought under s.589 of the Act, a statutory declaration will need to accompany any such application (going to the circumstances of the alleged unprotected industrial action etc). That declaration must be served on the Respondent prior to the hearing. It will also be expected that submission will made in relation to whether an interim order is contrary to the public interest.

I will at the time of any hearing time also allow the parties generally to make submission about the availability of any such orders as may be sought before any determination is made.

Finally, once the identity of the Respondent is known upon filing of the application, this correspondence will be forwarded to the person/persons/entity named (or the usual contacts of that entity).

Adjournment application

[4] An application for an adjournment was made by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”). As a consequence I convened a procedural hearing to deal with the application.

[5] The particular grounds on which that application was made were as follows:

• The CFMEU representative claimed he had no forewarning of the application before such time as it was served at or about 4.00pm;



• The CFMEU had been unable to obtain any instructions from members and officials (noting the Divisional Branch Secretary was named as being involved in the relevant activities on site). This was said to be because of telecommunication difficulties at the “remote” site.



• No witness statements had been filed in respect of which the CFMEU can seek instruction (though the application made set out a number of claims).

[6] The CEPU contended that its members have resumed work and should not be subject to the application.

[7] The CEPU was informed of the possibility of the s.418 application in the following terms at 2.40 pm on 13 March by email (which was provided to the Commission by the CEPU):

We act for Thiess Pty Ltd and have been instructed that employees at QCLNG - Thiess Woleebee Creek are engaging in unprotected industrial action and employees at QCLNG Thiess Bellevue are organising unprotected industrial action. We are instructed that these employees are members, or eligible to be members, of your union and that the industrial action has been organised by your union.

We will shortly be filing an application with the Fair Work Commission for an order to stop the unprotected industrial action. You will be served with all materials filed with the Commission in due course (by email), and we anticipate a hearing will be listed in the Commission this afternoon.

Whilst the hearing will be listed at short notice, our client intends to rely on this correspondence and oppose any application for an adjournment in this matter.

[8] The CEPU indicated that its members had resumed work after a short stoppage and sought to be removed from the application.

[9] The application was also complicated by the fact that the terms of the draft order were broad and extended to all employees working under the Thiess Pty Ltd QCLNG Project Upstream Works Agreement 2011 and who perform work at the CSG project at QCLNG Thiess Woleebee Creek CPP and FCS Site.

[10] Because the order was couched in such terms, it extended its scope to employees who performed work in classifications in respect of which the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (“the AMWU”) provides industrial representation. The AMWU therefore sought to appear to represent the interests of its members.

[11] At the time of the procedural hearing, the legal representative of the Applicant had no instructions in relation to whether the application was intended to have the scope that it did, given that the draft order sought to bind and apply to the CFMEU and the CEPU, and had only been served on those two employee organisations (as had the order for substituted service).

Should an adjournment application be granted?

[12] I should note at this juncture that the Applicant opposed the granting of an adjournment, so there was a contested matter to be determined.

[13] The issue of whether to grant adjournments in applications made under s.418 of the Act has been subject to consideration by the Full Bench in E. Allen and Ors v Fluor Construction Services Pty Ltd[2014] FWCFB 174 (“Re: Fluor”).

[14] There are some distinctions or distinguishing features between the facts of this matter and those considered in the matter before the Full Bench in Re: Fluor. In the matter before the Full Bench an order was not sought against the unions. Nor had the unions received any notice prior to the application being made. Service issues also arose in the particular context.

[15] Here the application (at the time of the procedural hearing) sought to bind and apply to two unions (the CFMEU and the CEPU) in addition to employees enumerated in a Schedule to the draft order.

[16] Further, the CEPU itself had been advised of the likelihood of an application under s.418 of the Act at 2.40 pm that day (prior to the application being made at 4.01 pm). This much is in evidence from the CEPU email materials directed to me prior to the hearing. The communication is specific as to details of the site and the allegations, and in respect of other matters.

[17] These are factors that in some circumstances could be decisive in not granting an adjournment in this matter.

[18] Notwithstanding this, I granted an adjournment, and did so for the following reasons:

[19] The Full Bench in Re: Fluor stated (at para 36) as follows:

True it is that the application made was urgent and that unprotected industrial action had the potential to cause damage and delay to the Respondent’s project but procedural fairness is not to be set aside because of such exigencies.

[20] There are procedural fairness issues afoot in the matter before me.

[21] None of the representative bodies have before them any statements in writing from any persons about the claims made about them or their members or officials. They cannot seek instructions at any particular or personal level at this point in time. Ordinarily, evidence in relation to such matters would be taken directly, viva voce. But this approach, following the decision in Re: Fluor and the statement of general principle cited above, may be exposed to question under some conditions.

[22] There is also confusion as to the scope of the orders to be sought (in relation to the AMWU). The Applicant’s legal representative has no instructions in that respect. The application would have needed to proceed where there was doubt about to whom it applied.

[23] The Full Bench in Re: Fluor made it sufficiently clear that, in the parochial jurisdiction at least, there is no balancing of the justice of granting an adjournment in relation to the damage caused to an employer by conduct that is said to be unprotected industrial action, with the opportunity to extend procedural fairness to those exposed to the order (even if that order only has application to employees who are taking unprotected industrial action and to unions that are organising such unprotected industrial action). The Applicant asserted it prospectively faced losses and penalties arising from the stoppage (which continued the following day in significant measure), but no weight can be attributed to this.

[24] I add that no issue was raised as to the effectiveness of service in relation to this matter, though I observe that the draft order seeks to bind and apply to some 90 employees. Given the findings of the Full Bench in Re: Fluor, a question about the adequacy of service (even if in the context of a substituted service order and where employees may have left site) in particular instances may give rise to an adjournment on the basis of procedural fairness.

Interim Order - jurisdiction

[25] Having granted the application for an adjournment, Thiess’ legal representative subsequently sought an interim decision to be made under s.589 of the Act.

[26] Section 589 of the Act provides as follows:

589 Procedural and interim decisions

(1) The FWC may make decisions as to how, when and where a matter is to be dealt with.

(2) The FWC may make an interim decision in relation to a matter before it.

(3) The FWC may make a decision under this section:

(a) on its own initiative; or

(b) on application.

(4) this section does not limit the FWC’s power to make decisions.

[27] Section 420 of the Act is headed, “Interim Orders etc”, and provides as follows:

Application must be determined within 2 days

(1) As far as practicable, the FWC must determine an application for an order under section 418 or 419 within 2 days after the application is made.

Interim orders

(2) If the FWC is unable to determine the application within that period, the FWC must, within that period, make an interim order that the industrial action to which the application relates stop, not occur or not be organised (as the case may be).

(3) However, the FWC must not make the interim order if the FWC is satisfied that it would be contrary to the public interest to do so.

(4) In making the interim order, the FWC does not have to specify the particular industrial action.

(5) An interim order continues in operation until the application is determined.

[28] It has been put to me by the CFMEU that s.420 of the Act is, in effect, a code or else otherwise exhausts the Commission’s jurisdiction in relation to its discretion to make an interim order against employees/organisations the subject of a s.418 application. That is, the CFMEU contented that s.420 operates to oust the operation of the general discretion to make interim orders under s.589 of the Act. The CFMEU put the matter this way, in essence:

The generalised power that your Honour referred the applicant to in your email exchange earlier today does not override the provision of this particular part of the Act where an interim order is specifically provided for where the application cannot be determined within two days. So I would submit that on a proper construction of the Act the power is not there for you to make an interim order in this circumstance, but in any event, your Honour, it is not appropriate for an interim order to be issued because it is clearly contrary to the public interest.

We have allegations of safety breaches on this particular job. We have an application that is not supported by statutory declarations. They are unsubstantiated allegations and nothing more, and the granting of an interim injunction would be completely inappropriate and it may well see workers return to work in an unsafe workplace and that clearly is against the public interest.

[29] As a matter of construction, I have come to conclude, though not without some preliminary doubt, that there are difficulties with this approach, and that s.420 and s.589 of the Act are capable of operating together and without conflict.

[30] Section 420 of the Act, on its plain terms, concerns an interim order that is obligatory in nature. Section 420 mandates the Commission to make such an order once certain preconditions are met - that being once the Commission is satisfied to the requisite degree that the application under s.418 of the Act cannot be determined within 48 hours.

[31] The interim order operates automatically, in effect, upon specific conditions being fulfilled.

[32] Section 420 of the Act is a carryover of the provision as introduced into the Workplace Relations Act 1996 by way of the 2005 amending legislation.

[33] The Explanatory Memorandum to the Workplace Relations Amendment (Work Choices) Bill 2005 put the rationale for the statutory amendment that introduced the provision in 2005 in the following way:

1524. Subsections 111(6), (7) and (8) would address the situation where the AIRC is unable to determine an application within 48 hours of it being made. In such circumstances, the [AIRC] would be required to issue an interim order (within 48 hours of the application being made), which would operate until the application is determined. The only circumstance in which the AIRC must not make an order is where it would be contrary to the public interest to do so. 1

[34] The Explanatory Memorandum reinforces my view that an interim order under s.420 of the Act is an order that only applies automatically (in so far as it is mandatory for the Commission to make such an interim order) upon the prescribed conditions being met.

[35] An interim order under s.589 of the Act, I have come now to conclude, is an order of a different (albeit procedural) kind that is generally available.

[36] Such an order is open to be made as a matter of discretion on application by a party or at the Commission’s own initiative.

[37] There is nothing mandatory in an interim order process under s.589 of the Act, and there are no statutorily prescribed conditions that must be met before it is made, other than that those principles implicit in the ordinary exercise of the Commission’s discretion must inform the discretion.

[38] Section 589 is not to be read subject to any qualification or condition.

[39] Thus s.420 of the Act does not constrain the accessibility of the general procedural or the particular powers under s.589 of the Act. Such powers are generally available to the Commission in the conduct of its proceedings and are not derogated from by s.420 of the Act. Though, as I discuss below, regard would need to be had to circumstances in which an interim order under s.589 of the Act and s.420 of the Act would apply.

[40] For these reasons I think s.420 of the Act and s.589 of the Act can be read together and that the provisions operate conformably (as I will discuss at a practical level below).

Whether interim order should be granted

[41] Given this, I now turn to whether I should make an interim order under s.589 of the Act, for which application has been made by way of a term of the application before me.

[42] I make clear that I do not have jurisdiction to make an order under s.420 of the Act as the relevant facts, or degree of satisfaction in relation to whether the matter under s.418 of the Act can be determined within 48 hrs are not evident to me.

[43] At the time of my decision making I had before me no appropriately executed statutory declaration or signed witness statement that provides any direct detail about the alleged unprotected industrial action taken at the site at the time, or the involvement of either of the (two) respondent unions (as they were at the time of the hearing). There was no viva voce evidence led under oath, either, which might have substituted.

[44] I had nothing before me about the reasons for the industrial action, other than it related to a safety issue. At the time of the procedural hearing, I did not know what the safety issue concerned.

[45] There was also confusion as to the scope of the order sought in which unions and which employees are to be subject to any prospective order.

[46] In such circumstances, where there is a paucity of material before me, I am not inclined to exercise my jurisdiction as I have found it to be to make an interim order under s.589.

Safety issues and public interest

[47] I add that so far as a safety issue is raised it may be an important issue in considering whether to exercise the discretion to make an interim order and whether any public interest issues are applicable in the circumstances. I think any consideration of an interim order must have regard to whether any such order, if granted, would be contrary to the public interest.

[48] Equally, however, in such same circumstances an interim order may be drafted in such a form as to conform to s.19(2)(c)(i) and (ii) of the Act, and to accommodate circumstances in which a safety issue was afoot, or may come to be on foot.

[49] That is, an interim order (for example only) might include that employees (at least) whose names are enumerated in the application (or otherwise as defined) stop taking any unprotected industrial action and perform available work, whether at the same workplace or another workplace, that is safe for the employees to perform. Such an order in such terms, of course, would not denigrate from an employee’s usual right to not perform work where they are on authorised leave, etc.

[50] Such an interim order might come into effect at the time specified and remain in place until such time as the substantive matter is determined (which is a matter to be considered in the context of the continuing operation of s.420 of the Act). Where an interim order was to come into effect for a period of more than 48 hours it would reasonably be necessary to set that order aside to allow for the ordinary operation of an interim order under s.420 of the Act. Equally, however, the interim order may be set aside where a member reaches the requisite degree of satisfaction that the substantive matter cannot be determined within 48 hours.

[51] I add only - by way of conclusion - that an application for an interim order can be sought on a continuing basis when circumstances change. This may be relevant where an initial application is refused and before such time as an order under s.420 of the Act must be made.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms C. Brattey of Herbert Smith Freehills, for the Applicant

Ms L. Midson, of the AMWU

Ms P. Rogers, of the CEPU

Mr T. O’Brien, of the CFMEU

Hearing details:

By phone

2014

13 March

 1   Schedule 1 ~ Main Amendments, House of Representatives page 239, Workplace Relations Amendment (Work Choices) Bill 2005.

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