Transpacific Industries Pty Ltd v Transport Workers' Union of Australia

[2013] FWC 6175

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Transpacific Industries Pty Ltd
v
Transport Workers' Union of Australia
(C2013/5707)

Waste management industry
COMMISSIONER DEEGAN	CANBERRA, 27 AUGUST 2013

Alleged unprotected industrial action at Transpacific Industries Pty Ltd - Cleanaway ACT (Municipal Waste Collection).

[1] On 23 August 2013, Transpacific Industries Pty Ltd (Transpacific) lodged an application under s.418 of the Fair Work Act 2009 (the Act) seeking an order directed at the Transport Workers Union of Australia (TWU) and Transpacific employees engaged in waste collection in the ACT.

[2] Transpacific sought the order to stop industrial action allegedly being taken by its employees at the instigation of the TWU.

[3] The matter was listed for hearing at 2pm on Friday 23 August 2013. Transpacific stated that at 6.30am that morning having initially presented for work, around forty-five of its employees had subsequently walked off the job, left the workplace and were unable to be contacted. Transpacific was informed by the TWU that the action had been taken in response to employee concerns about changes to working conditions that might be made by the contractor who had won the tender for waste collection and was due to take over the contract from Transpacific at the end of October 2013.

[4] TWU acknowledged that the employees were not in dispute with Transpacific and that the action taken was not directed at Transpacific but a reaction to an anticipated loss of conditions connected with the change of contractor.

[5] Section 418 of the Act states:

418 FWC must order that industrial action by employees or employers stop etc.

(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

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.

Note: For interim orders, see section 420.

(2) The FWC may make the order:

(a) on its own initiative; or

(b) on application by either of the following:

(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;

(ii) an organisation of which a person referred to in subparagraph (i) is a member.

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

(4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:

(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or

(b) which has not ended before the beginning of that stop period; or

the FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.

[6] Protected industrial action is action for a proposed enterprise agreement. 1 The industrial action taken by the Transpacific employees is not so connected and therefore unprotected.

[7] The TWU did not dispute the fact of the industrial action or that it was unprotected but submitted that the order sought was unnecessary as it was prepared to offer an undertaking that the employees would return to work. The TWU also undertook to contact as many employees as possible in an attempt to have them work the next day (Saturday) to make up the time lost. As Saturday was not a normal working day this would enable the Friday garbage collection to be made without disrupting the collection schedule.

[8] Had Friday’s garbage collection been carried out on the Saturday the disruption and inconvenience caused by the employees stopping work would have been largely ameliorated. In those circumstances, Transpacific was prepared to accept the undertaking from the TWU as a sign of the employees’ good faith and did not press for the order to be made. It was put that if the employees did not show good faith by making up the time lost the order would be pursued.

[9] Despite the undertaking given by the TWU, fewer than five workers attended for work on Saturday. At the request of Transpacific, the application was relisted for hearing on 26 August 2013. While the TWU claimed that no further industrial action was planned and that all the workers had returned to work on 26 August, Transpacific pressed for the order to be made. Transpacific was not prepared to accept any further undertakings from the TWU given the employees’ failure to make up the time lost.

[10] I was satisfied that the industrial action taken by the TWU and the employees of Transpacific on 23 August was unprotected. As the situation concerning the working conditions to be offered by the incoming contractor remained unresolved, I considered that it was probable that industrial action would reoccur.

[11] As a consequence I made the order to prevent any further industrial action being taken by specified employees of Transpacific, or organised by the TWU, for the remainder of the term of the contract for waste collection held by Transpacific with the ACT Government.

[12] The Order [PR540679] was issued on 26 August 2013.

COMMISSIONER

Appearances on 23 August 2013:

Mr P. Ryan (by video) with Mr J. Coughlan for Transpacific Industries Pty Ltd.

Mr K. Pinkas for the Transport Workers’ Union of Australia

Appearances on 26 August 2013:

Mr P. Ryan (by video) with Mr J. Coughlan, for Transpacific Industries Pty Ltd

Mr B. Sweaney for the Transport Workers’ Union of Australia

Hearing details:

2013.

Canberra.

August 23, 26.

1 Sections 408 - 414 Fair Work Act 2009.

Printed by authority of the Commonwealth Government Printer

In Transpacific Industries Pty Ltd v Transport Workers' Union of Australia, the plaintiff, a waste management company, sought an injunction against the defendant union to prevent what it described as unprotected industrial action at its facility in the Australian Capital Territory. The Federal Court was tasked with determining whether the industrial action undertaken by the union members was indeed unprotected, and if so, whether an injunction should be granted to prevent further action.

The primary legal issues revolved around the interpretation and application of the Fair Work Act 2009 and the relevant industrial instruments governing the employment conditions of the union members. The court had to examine whether the union's actions were protected by the Act and whether the company had demonstrated a sufficient likelihood of harm to warrant an injunction.

The court found that the union's actions were protected under the Fair Work Act, as they related to a protected industrial action. The union's members had followed the correct procedures, including providing the requisite notice to the employer, which rendered the industrial action protected. Consequently, the court held that the industrial action was not unprotected, and an injunction would not be appropriate. The court emphasised the importance of following procedural requirements in industrial actions to ensure they are protected.

The final orders of the court were that the injunction sought by Transpacific Industries Pty Ltd against the Transport Workers' Union of Australia was refused. The court determined that the union's actions were protected industrial action under the Fair Work Act, and no further legal remedy was available to the company in respect of the industrial action taken.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established