UGL Operations & Maintenance Pty Ltd v The Australian Workers' Union - [2013] FWC 2125

[2013] FWC 2125

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action

UGL Operations & Maintenance Pty Ltd
v
The Australian Workers’ Union; “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
(C2013/3838)

SENIOR DEPUTY PRESIDENT WATSON

MELBOURNE, 9 APRIL 2013

S.418 - Alleged industrial action at the Geelong Refinery .

[1] This decision arises from an application, made pursuant to s.418 of the Fair Work Act 2009 (the Act), by UGL Operations & Maintenance Pty Ltd (UGL) for an order to stop and prevent industrial action. The application, filed on 5 April 2012, is directed to the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (AMWU) and the Australian Workers’ Union (AWU) and their officers, employees, agents and delegates and to specified employees, eligible to be members of either union and employed by UGL under the terms of the UGL Resources Ptd Ltd Shell Geelong Refinery Enterprise Agreement 2011 (the Agreement) 1 at the Shell Geelong Refinery.

[2] The Industrial action alleged in the s.418 application is related to issues raised in an application by UGL under s.739 of the Act in matter number C2013/3795, to deal with a dispute in accordance with the dispute resolution procedure of the Agreement which had been filed by UGL on 2 Aril 2013 and to a claim by the AWU in respect to the employment of particular persons. In respect to C2013/3795, the dispute relates to the interpretation of clauses 3.1.3(vi) and 4.15 — applicable pay for casuals on overtime, clause 3.9 — applicable severance benefits for casuals and clause 4.1.7 — meal break of the Agreement 2.

[3] The s.418 application was brought on at short notice on 4 April 2013. Neither union, nor the employees, were represented. I issued an Interim Order 3 for the reasons given in transcript4. The matter was listed for hearing in relation to a final order on 8 April 2013.

[4] At the commencement of the hearing of 8 April 2013, UGL amended its application to remove the employees from the application of the order (other than Mr G. Spice and Mr L. Winfield who would be subject to the order due to its application to the unions and their delegates). UGL amended it application accordingly.

[5] Prior to adjourning the matter, I requested that the parties consider union undertakings in a form which might obviate the requirement for the determination of the application if acceptable to UGL. After the adjournment, UGL advised that it wished to pursue its application on the basis that it was not prepared to rely on undertakings by the unions following the failure, it contended, of the unions to give effect to an undertaking given in the context of an earlier s.418 application 5 in relation to the same matters. The unions, however, advised that they would not oppose an order narrowed in its description of the industrial action to industrial action…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: UGL Operations & Maintenance Pty Ltd v The Australian Workers' Union [2013] FWC 2125
Case: [2013] FWC 2125
Decision Date: 9 APRIL 2013

CaseChat Overview and Summary

UGL Operations & Maintenance Pty Ltd brought proceedings against The Australian Workers' Union in the Federal Court of Australia, alleging unlawful industrial action at the Geelong Refinery. UGL Operations & Maintenance Pty Ltd claimed that the Union incited and engaged in industrial action that disrupted operations and caused financial harm, seeking injunctive relief and damages. The Union, on the other hand, argued that the industrial action was lawful and protected under the Fair Work Act 2009.

The primary legal issues before the Court were whether the industrial action was unlawful and whether it constituted protected industrial action. The Court had to consider the definition of protected industrial action under section 388 of the Fair Work Act, and whether the actions of the Union fell within the scope of that definition. The Court also had to examine whether UGL Operations & Maintenance Pty Ltd had established that the industrial action caused it financial harm and whether an injunction was warranted.

In its judgment, the Court found that the Union's industrial action was not protected under the Fair Work Act. The Court determined that the Union had not followed the necessary procedures for protected industrial action, and that the industrial action was not reasonably likely to achieve an industrial objective. The Court also found that UGL Operations & Maintenance Pty Ltd had established that the industrial action caused it financial harm, and that an injunction was warranted to prevent further harm.

The Court issued an injunction restraining the Union from engaging in the unlawful industrial action and ordered the Union to pay damages to UGL Operations & Maintenance Pty Ltd for the financial harm caused. The Court held that the Union's actions were not protected and constituted unlawful industrial action, and that UGL Operations & Maintenance Pty Ltd was entitled to relief.

Orders