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 in respect to the matters in dispute in C2013/3795, as described by UGL. In addition, the AWU confirmed a position earlier put, that it is not pursuing any claims in relation to the employment of specific persons.

Decision

[6] S.418 of the Act requires that:

“(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.”

[7] UGL brought evidence from three managers, some of it direct evidence and some evidence of what said to them by some employees and relied on security footage (vision only) of a mass meeting, conducted by officers of the unions on the morning of 4 April 2013 which preceded the non-attendance for work of the employees. What was said to various managers, conveyed to managers, was consistent with the direct evidence, including the security footage. The evidence of the managers went to a range of discussions with union organisers and delegates related to the matters in issue in C2013/3795, including threatened industrial action. It is clear that industrial action related to those issues was threatened, was organised by the unions and occurred. The unions brought no contrary evidence and it is reasonable to infer that the evidence of the relevant union officers and delegates would not have assisted its case.

[8] S.418 is directed to unprotected industrial action that is happening, is threatened, impending or probable; or is being organised. In the context of the operation of the Interim Order, I am not satisfied on the evidence that unprotected industrial action is happening, threatened or pending. Whilst, UGL contended that overtime bans were being currently organised, there was insufficient evidence to support a finding to that effect.

[9] However, given the history of threatened and actual industrial action, and its organisation by officers of the unions in relation to the matters in issue in C2013/3795 and failure of employees to attend work following the mass meeting of 4 April, 2013, I am satisfied that further industrial action in relation to the issues is probable, absent an order to stop and prevent such action and organised by officers/delegates of the unions.

[10] Accordingly, I am satisfied that the jurisdictional basis for the making of a s.418 order exists and, in those circumstances, I am required to make such an order.

[11] Given that the evidence of the organisation of industrial action, threats of industrial action and actual industrial action is limited to industrial action in relation to the matters in issue in C2013/3795, with there being no evidence of broader industrial action, I will limit the scope of the order to industrial action in relation to the matters in dispute, as described by UGL, in its application in C2013/3795. The order will not apply to employees and will remain in force until 31 March 2014, the nominal expiry date of the Agreement reflecting, in each case, the UGL application as amended.

[12] The Interim Order will expire in accordance with clause 6 upon the making of the final order.

SENIOR DEPUTY PRESIDENT

Appearances:

C Gianatti for UGL Operations & Maintenance Pty Ltd

J Maloney, for “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)

P Reilly for The Australian Workers’ Union

Hearing details:

2013.

Melbourne:

April 4 and 8.

 1   AE886392; PR510838.

 2   UGL application at point 4.

 3   PR535398.

 4   Transcript, at paras 28-34.

 5   C2013/2914.

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