Toll Ipec Pty Ltd v National Union of Workers

[2015] FWC 6598

[2015] FWC 6598

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action

Toll IPEC Pty Ltd
v
National Union of Workers
(C2015/6089)

COMMISSIONER GREGORY MELBOURNE, 29 SEPTEMBER 2015

Alleged industrial action at Toll IPEC Pty Ltd - Altona site.

[1] This matter involves an application by Toll IPEC Pty Ltd (“Toll IPEC”) under s.418 of the Fair Work Act 2009 (Cth) (“the Act”) for orders to stop unprotected industrial action. The orders are sought in regard to the employees of Toll IPEC, who are members of the National Union of Workers (“NUW”) and perform work on the afternoon shift at Toll’s Altona Road site, and the NUW, including its office holders and delegates who are Toll IPEC employees.

[2] The application was listed for hearing at short notice on 16 September 2015 at the request of the Applicant. Mr Henry Skene from Seyfarth Shaw was granted permission to appear on behalf of Toll IPEC under s.596(2)(a) of the Act. Mr Dario Mujkic appeared on behalf of the NUW. At the conclusion of the hearing the Commission issued a decision ex tempore. This is an edited version of that decision.

[3] Section 418(1) of the Act states:

“(1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:

(a) is happening; or

(b) is threatened, impending or probable; or

(c) is being organised;

the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.” 1

[4] Therefore, in circumstances where the Commission is satisfied the industrial action is not, or would not be, protected industrial action the Commission must make an Order that the industrial action stop, not occur, or not be organised, as the case may be, for a period to be specified in the Order and described in the Act as the “stop period.”

[5] The Act also requires that an application be made by a person who is affected, either directly or indirectly, by the industrial action. Section 418(3) also provides that when making an Order the Commission does not have to specify the particular industrial action.

[6] I have considered the evidence and the submissions that are before the Commission in this matter. I am satisfied in response that Toll IPEC is affected, either directly or indirectly, by the action, I am also satisfied the action that is the subject of this application is industrial action and is not, or would not be, protected industrial action. I am also satisfied, pursuant to s.418(1)(b), that further such action is “threatened, impending or probable.”

[7] I have come to this conclusion based on the evidence provided about the industrial action which took place during the afternoon shift that commenced at 2 p.m. on 14 September 2015, and the evidence of Mr Aaron Rau, the General Manager of Human Resources, Industrial Relations and Safety at Toll IPEC. He indicated that at the conclusion of normal working hours on that shift some employees did not continue to work for a further period of overtime in circumstances where it is customary for between two to three hours of overtime to be worked on each shift.

[8] I have also had regard to the fact further action then took place on the afternoon shift on the following day, being 15 September. Mr Rau’s evidence indicates that action initially involved a stop-work meeting and then a subsequent decision by a group of employees on the afternoon shift to not return to work until such time as the underlying issue in dispute had been resolved.

[9] That issue, as I understand from the evidence, has not been resolved and relates to an on-going issue about redundancy and, in particular, the number and identity of the employees to be made redundant from the group of employees currently working on the afternoon shift.

[10] As indicated, based on the evidence of Mr Rau, in particular, and the evidence about the action that has occurred on those two particular shifts, I am satisfied it is reasonable to conclude that further industrial action is at least “threatened, impending or probable” in terms of the afternoon shift on 16 September, and possibly in regard to further afternoon shifts in the future.

[11] I am also satisfied the action can be considered to be industrial action, based on the definition contained in s.19 of the Act. I refer, in particular, to s.19(1)(a) and the reference in that subsection to the performance of work by an employee in a manner different from that in which it is customarily performed. I am accordingly satisfied the action in the present matter falls within this definition. Having come to this conclusion the Act requires that the Commission must make an Order.

[12] A draft Order was provided by Toll IPEC in conjunction with its application. I intend to issue an Order in those terms, save for two amendments.

[13] The draft Order is amended to remove the words, “The NUW must not organise any industrial action involving any of the Toll employees.” In this context I have had regard to the evidence of Mr Rau and the submissions made about this issue. I am not satisfied that the evidence establishes the National Union of Workers can be considered to be involved in industrial action that is “being organised” by it, based on the evidence and submissions now before the Commission. That evidence does indicate that an NUW Union Delegate and a Union Organiser have been involved to some extent in the matter. However, I am not satisfied it establishes the NUW and its representatives are necessarily organising the action. It appears instead that they have acted as more of a conduit between the employer and the employees, as a representative of the employees, without necessarily organising the industrial action that has occurred or is proposed.

[14] I am, however, prepared to make the Order in the remaining terms set out in the draft. Various submissions were also made about the proposed term of the Order. The NUW submits that if an Order is to be made it should only be made for a period of 14 days. However, Toll IPEC’s preferred position is that the Order be made for a period extending until the latter part of November when the changes that are at the heart of this dispute are intended to have been implemented.

[15] I intend in response to make the Order for a period that provides some balance in regard to the respective interests of the parties in this matter. That period will be 28 days. This is primarily intended to provide an appropriate period of time to enable the issues that lie behind the dispute to be resolved.

[16] In making an Order for this specific period of time it is also noted that it does not follow that it will be appropriate at the conclusion of that 28 day period, if the dispute is not resolved, for further unprotected industrial action to be taken. It is intended instead that the Order be made for this period of time to provide an appropriate balance between the interests of the parties while further negotiations take place about the matters in dispute.

[17] An Order was accordingly issued on 16 September 2015 2 in accordance with the terms of this decision.

COMMISSIONER

Appearances:

Mr Henry Skene of Seyfarth Shaw appeared on behalf of Toll IPEC Pty Ltd.

Mr Dario Mujkic appeared on behalf of the National Union of Workers.

Hearing details:

2015.

Melbourne:

16 September.

 1   Fair Work Act 2009 (Cth) at s.418(1)

 2   PR571995

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