v/Line Maintenance Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; Australian Manufacturing Workers’ Union

[2024] FWC 583

[2024] FWC 583

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.418—Industrial action

V/Line Maintenance Pty Ltd
v

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; Australian Manufacturing Workers’ Union

(C2024/1299)

DEPUTY PRESIDENT COLMAN MELBOURNE, 4 MARCH 2024

Application for orders under s 418 that industrial action stop or not occur – whether proposed industrial action unprotected – application dismissed.

1. V/Line Maintenance Pty Ltd (VLM) has made an application under s 418 of the Fair Work Act 2009 (Act) seeking orders from the Commission to stop or prevent industrial action that VLM considers to be unprotected. The orders sought were directed at the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Australian Manufacturing Workers’ Union (AMWU), as well as officers and employees of the unions, and members of the unions who are employees of VLM and will be covered by a proposed new enterprise agreement (proposed agreement). I heard the application at 1.00pm today. At the conclusion of the proceeding, I advised the parties that I did not consider the industrial action in question to be unprotected and that the application for orders under s 418 was therefore dismissed. I indicated that I would publish brief reasons in the course of the afternoon, which are as follows.

1. VLM is contracted to provide maintenance on rollingstock operated by V/Line, a statutory authority that runs regional train and coach services in Victoria. Maintenance is organised across continuous rosters and is both planned and corrective. Since June 2023, VLM has been negotiating with the CEPU and the AMWU about the terms and conditions to be included in the proposed agreement. On 1 November 2023, the Commission issued protected action ballot orders (PABOs) under s 443 of the Act, pursuant to which members of the CEPU and the AMWU employed by VLM would vote on whether to approve various forms of industrial action in support of claims for the proposed agreement. A quorate majority of voting members of each union voted to approve the proposed industrial action.

1. On 28 February 2024, the CEPU and the AMWU issued to VLM notices of protected industrial action pursuant to s 414 of the Act. The notices were in substantially the same form and stated that the unions, their officers and employees, and members of the unions employed by VLM, intended to take employee claim action in the form of 7 consecutive stoppages of work for the duration of 1 hour each between the hours of 2.00am and 9.00am on Tuesday, 5 March 2024. They also notified VLM of an intention to take such action on 6, 7 and 8 March 2024, and on 11, 12, 13, 14 and 15 March 2024.

1. VLM contended that the unions’ notices under s 414 were defective in two related ways, the effect of each of which was to render unprotected the industrial action that is due to commence tomorrow morning at 2.00am. First, VLM submitted that the s 414 notices purported to authorise industrial action by persons not covered by the PABO, namely the CEPU, the AMWU, and officers and employees of those unions. VLM noted that the PABOs issued on 1 November 2023 had only authorised industrial action by employees who would be covered by the proposed agreement. Secondly, VLM contended that the s 414 notices contemplated industrial action by employees other than those who would be covered by the proposed agreement and the PABOs. It said that the notices stated very generally that the industrial action would be taken by members of the CEPU and the AMWU who are ‘employed by the Employer’. VLM said that this could mean any employee who was a member of the unions. VLM led evidence from Christopher Hagstrom, the industrial relations manager for VLM’s parent company, Alstom Transport Australia Pty Ltd, who said that when he read the CEPU and the AMWU notices, he was uncertain as to what they meant, because they appeared to authorise industrial action by persons not covered by the PABOs.  

1. In my view, the unions’ s 414 notices are not defective. As to VLM’s first contention, I accept that on one view, the unions’ notices could have been more precise by stating that the unions and their officers and employees would ‘organise’, rather than ‘take’, employee claim action. Strictly speaking, industrial action is taken or engaged in by employees, or, in the case of a lockout, by employers. Unions and their officers and employees on the other hand organise industrial action. This distinction is recognised in s 409(1)(b) of the Act, which provides that employee claim action is action that is ‘organised or engaged in’ either by a bargaining representative or by an employee. Section 409(1)(b) is intended to be read in a distributive manner, reddendo singula singulis; that is, employee claim action is organised by bargaining representatives, and engaged in by employees. See also CFMEU v BHP Coal Pty Ltd [2015] FCAFC 25.

1. However, in ordinary industrial language, it is common to refer to unions and their officials ‘taking’ industrial action, as the CEPU and the AMWU did in their s 414 notices. This expression was also used in a question put to Mr Hagstrom in cross-examination and he had no difficulty understanding its meaning. Mr Hagstrom did not identify any point of practical confusion about what the notified industrial action entailed. There was no serious question about who would do what. In my view, the objective meaning of the notices was clear. Consecutive stoppages of work would commence at 2.00am on 15 March 2024. Those stoppages would be engaged in by employees of VLM. The unions and their officers and employees would organise the stoppages.

1. The unions rightly noted that they require the protection of the immunity provisions in the Act in respect of industrial action just as much as employees, and in order to obtain that immunity, the s 414 notices must cover the unions’ involvement in the proposed industrial action. Describing the industrial action that unions and their members jointly will ‘take’ seems to me to be an acceptable way to do this.

1. As to VLM’s second point, I do not consider that the unions’ s 414 notices connote that industrial action can be engaged in by any union member who is employed by VLM. It is true that the second part of the introductory sentence in each document states that the unions give notice of their intention, and that of their members ‘employed by the Employer’, to take the specified action. But this must be read in the context of the first half of the introductory sentences of the notices. The AMWU notice states that the union is a bargaining representative for employees who will be covered by a proposed agreement in relation to the Employer; the CEPU notice states that the union is a bargaining representative for members employed by VLM who will be covered by the proposed enterprise agreement. The members of these unions who are employees to be covered by the proposed agreement are those who are also covered by the PABOs. In my view, it is clear when reading the second half of the introductory sentence in the context of the notices as a whole that the employees who will take the industrial action are the same ones referred to earlier.

1. VLM contended that the s 414 notices were inconsistent with the PABOs. I do not accept this. PABOs are concerned with authorising industrial action by employees (s 459). Section 414 notices advise the employer of employee claim action. It is to be expected that a union organising that action and issuing the notice would seek to attract the protection of the statutory immunity of s 415 through that notice. That is what the unions did here. Section 414(6) states that a notice given under s 414 must specify the nature of the action and the day on which it will start. In my view, the unions’ notices complied with this requirement. They were not uncertain about the question of who would engage in the industrial action.

1. Section 418 states that ‘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’, is either happening, threatened, impending or probable, or is being organised, the Commission must make an order that it stop, not occur or not be organised. At the conclusion of the hearing, it did not appear to me that this was the case and the application was therefore dismissed.

DEPUTY PRESIDENT

Hearing details:
2024
Melbourne
4 March

Appearances:
J. Hall for V/ Line Maintenance Pty Ltd
E. McGrath for the CEPU
A. Bonello for the AMWU

Printed by authority of the Commonwealth Government Printer

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