1
Fair Work Act 2009
s.604—Appeal of decision
Construction, Forestry, Mining and Energy Union
v
Delta Coal Mining Pty Limited
(C2016/7428)
SENIOR DEPUTY PRESIDENT DRAKE
SENIOR DEPUTY PRESIDENT HAMBERGER
DEPUTY PRESIDENT BULL
SYDNEY, 9 JANUARY 2017
Appeal against an Order [PR588682] of Deputy President Sams at Sydney on 16 December
2016 in matter number C2016/7338.
[1] On 19 December 2016, the Construction, Forestry Mining and Energy Union
(CFMEU) filed an application to appeal an Order1 made by Deputy President Sams on 16
December 2016. The Order was made under s.418 of the Fair Work Act 2009 (the FW Act) in
relation to alleged unprotected industrial action taken by employees of Delta Coal Mining Pty
Ltd (Delta Coal) engaged at the Appin mine site in New South Wales operated by South32
Ltd. The Deputy President issued written reasons for the Order on 21 December 20162 (the
Decision).
[2] The Order was in the following terms:
‘1. Title
1.1 This order shall be known as the Delta Coal Industrial Action Order 2016 (No.1)
(the Order).
2. Parties Bound and application of Order
2.1 This Order is binding on:
(a) the Construction, Forestry, Mining and Energy Union (CFMEU);
(b) the officers, delegates, employees or representatives of the CFMEU;
(c) employees of Delta Coal Mining Pty Ltd (DC) who are:
(i) members, or are eligible to be members, of the CFMEU; and
(ii) engaged at the Appin mine (Mine); and
(iii) engaged in work that is regulated by the DC Enterprise Agreement 2014.
(the Employees).
[2017] FWCFB 7
DECISION
E AUSTRALIA FairWork Commission
[2017] FWCFB 7
2
3 Industrial action to stop, not occur or be threatened
3.1 Each Employee must immediately cease and stop all Industrial Action, and must
not recommence, engage in or threaten to engage in Industrial Action while this Order
is in force.
3.2 Subject to the exclusions in clauses 4(d) to (f) below, each Employee must be
available for work and perform work as required by DC, including in accordance with
the roster as varied by DC in accordance with clause 5.1 of the DC Enterprise
Agreement 2014
3.3 The CFMEU, its officers, employees, agents and delegates and the Employees
bound by this Order must:
(a) immediately stop organising, and refrain from organising, any Industrial Action
involving any of the Employees;
(b) as incidental to the requirement in 3.2(a), not:
(i) organise, aid, abet, direct, procure, induce, advise, authorise or encourage
any Employee to engage in Industrial Action; and
(ii) facilitate any Industrial Action by any Employee.
3.4 The CFMEU must take all reasonably practicable steps necessary and available to
it under its Rules, or otherwise, to:
(a) immediately advise Employees who are members of the CFMEU that:
(i) any Industrial Action must not be engaged in or threatened;
(ii) any Industrial Action must not be organised, aided, abetted, directed,
procured, induced, advised, authorised, encouraged or facilitated; and
(iii) any direction, advice or authorisation by the CFMEU to the Employees to
engage in Industrial Action is withdrawn and such Industrial Action must stop
or not occur.
3.5 By no later than on 12.00pm Monday 19 December 2016, the CFMEU must:
(a) provide a copy of the Order to its delegates engaged in or connected with work at
the Mine and take all reasonably practicable steps necessary and available to it under
its Rules to ensure that its delegates comply with this Order;
(b) cause a notice or bulletin to be published and distributed to Employees who are
members of the CFMEU and placed on noticeboards at the Mine, informing these
Employees of this Order and that any direction, advice or authorisation by the CFMEU
to Employees to threaten or engage in Industrial Action is withdrawn; and
(c) post this Order in a prominent position on its website.
3.6 The CFMEU must advise the Company's representatives in writing by facsimile or
email transmission by 10am Tuesday 20 December 2016 of the steps taken to comply
with paragraph 3.4 of this Order, including the form of notification, and if written, its
content, and the further steps they intend to take (if any) to comply with the Order in
respect of any Employee who, by that time, has not been notified.
[2017] FWCFB 7
3
4 Definition of Industrial Action
4.1 For the purposes of this Order "Industrial Action" means:
(a) the performance of work by an Employee in a manner different from that in which
it is customarily performed, or the adoption of a practice in relation to work by an
Employee, the result of which is a restriction or limitation on, or a delay in, the
performance of the work;
(b) a ban, limitation or restriction on the performance of work by an Employee or on
the acceptance of or offering for work by an Employee; and
(c) a failure or refusal by Employees to attend for work or a failure or refusal to
perform any work at all by Employees who attend for work;
but does not include:
(d) protected industrial action within the meaning of section 408 of the Fair Work Act
2009;
(e) action by employees that is authorised or agreed to by or on behalf of his or her
employer; or
(f) action by an employee if:
(i) the action was based on a reasonable concern by the employee about an
imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of his or
her employer to perform other available work, whether at the same or another
workplace,
5. Service of Order
5.1 Without limitation as to other means of service, it will be sufficient service of this
Order:
(a) upon the CFMEU and its officers, employees and delegates if:
(i) a copy of this Order is sent by facsimile or email (or as otherwise provided)
to the National Secretary of the CFMEU or District Secretary of the CFMEU
New South Wales South Western Mining & Energy District, or to an officer of
the CFMEU who has dealings with the Company in relation to any of the
Employees;
(ii) a copy of this order is sent by email to the email address of New South
Wales South Western Mining & Energy District, District Vice President, Bob
Timbs (BobTimbs@umw.com.au); or
(iii) a copy of this Order is handed to or read in the presence of an officer or
employee of the CFMEU.
(b) upon an Employee who is a member of the CFMEU:
[2017] FWCFB 7
4
(i) a copy of the Order is served on the CFMEU as provided for in clause
5.1(a); or
(ii) a copy of this Order is placed on the notice boards usually used for the
purpose of communicating with Employees at the Mine.
(c) Upon an Employee who is not a member of the CFMEU:
(i) a text message or email in the following terms is sent by the Company to the
mobile phone number or email address on the Employee's personnel file:
“The Fair Work Commission has ordered that from 4pm Friday 16 December
2016, the employees of Delta Coal Mining Pty Ltd at the Appin Mine must stop
all industrial action and not recommence, engage in, or threaten to engage in,
industrial action. All employees must attend work as rostered - Neville
McAlary, Delta.".
And
(ii) a copy of this Order is placed on the notice boards usually used for
the purpose of communicating with Employees at the Mine.
6. TERM AND DATE OF EFFECT
6.1 This order shall come into effect at 4.00pm on 16 December 2016 and shall cease
to have effect at 4.00pm on 16 January 2017.’
[3] The grounds listed in the Notice of Appeal were:
1. The Deputy President erred in making the order in circumstances where there
were no current employees of Delta Coal at South32’s Appin coal mine at the
time the order was made.
2. The order was not valid because it exceeded the power available under s.418 of
the FW Act to make an order.
3. Such other grounds as may arise from the reasons for making the order issued
by the Deputy President.
4. Such other grounds as the Commission may determine as appropriate.
[4] On 20 December Vice President Hatcher heard an application by the CFMEU to stay
the Order. The Vice President agreed to stay Clause 3.2 of the Order, pending the hearing and
determination of the appeal, or until further order of the Commission. The application for a
stay was otherwise dismissed3.
[5] The appeal was heard in Sydney on 29 December 2016. The CFMEU was represented
by Mr S Crawshaw, Senior Counsel and Delta Coal by Mr G Hatcher, Senior Counsel. At the
commencement of the hearing the CFMEU was given leave to amend the grounds of appeal
as follows:
1. The Deputy President erred in making the order in circumstances where he could not
be satisfied that there were current employees of Delta Coal at the South32’s Appin
coal mine taking industrial action at the time the order was made.
2. The Deputy President erred in making the order by taking into account extraneous or
irrelevant matters, mistaking the facts and not taking into account material
[2017] FWCFB 7
5
considerations in finding that he was satisfied that current employees of Delta Coal at
the Appin mine were taking industrial action at the time the order was made.
3. The order of the Deputy President was not valid because it exceeded the power
available under s.418 of the FW Act to make an order.
The Decision
[6] The Deputy President noted that in April 2016 Delta Coal had won three packages of
work from the operator of the Appin mine.4 He stated that Delta Coal employs 106 employees
at the Appin mine under the DC Enterprise Agreement 2014 (the agreement) which has an
expiry date of 4 June 20185. The workforce comprises 22 employees on a full-time, fixed-task
basis, and 84 casual employees. He said that from 29 November to 2 December 2016 Delta
Coal (along with an associated entity, Delta Mining) conducted presentations with employees
to update them on the outcome of a recent tender process and ‘likely consequences for
employees6.’
[7] The Deputy President continued:
‘From 30 November 2016 the vast majority of employees of both entities began to
report in as sick or unfit for work. It is not disputed that with a few minor exceptions,
the applicant's employees have continued to be absent from work and remain so at the
date of the hearing. It was said by Delta Coal that this conduct constituted industrial
action as defined in section 19 of the Act and for the requisite purposes, unprotected
industrial action for the purposes of s 418 of the Act.
The CFMEU argued that as the vast majority of the applicant's workforce was either
casual or fixed term employees, their contracts of employment ended around 2
December 2016 and therefore there could be no industrial action, protected or
otherwise, being undertaken by former employees. Accordingly, there was no
jurisdictional foundation for s 418 orders, either on interim or final basis; see: Age Co
Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbling
and Allied Services Union of Australia (2004) 133 IR 197 and Busicom Solutions Pty
Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
[2007] AIRC 287.
I shall return to these competing threshold arguments shortly; suffice to observe at this
point, that it seems to me that the determination of this application may involve a four
step process:
1. Is there an ongoing employment relationship between Delta Coal and its
employees?
2. If the answer to this question is yes, does the conduct of not reporting for
work constitute unprotected industrial action.
3. If so, is the industrial action happening, threatened, impending or probable,
and being organised by the CFMEU, its officers, delegates or members?
4. If any of the above circumstances in point 3 are established, the Commission
must make a s 418 order7.’
[8] Under the heading ‘Other Evidence’ the Deputy President added the following:
[2017] FWCFB 7
6
‘Mr McAlary8 gave evidence of a conversation with Mr Bob Timbs, District Vice
President of the CFMEU on 6 December 2016 in which Mr Timbs offered to ‘get the
guys back to work’ if he, Mr McAlary, would give commitments about securing
further contracts from South32. There was a rally of employees on 8 December at
Stuart Park North Wollongong, which the Union said was to ‘keep pressure on
South32, the contract companies and maintain media interest.’
Mr McAlary also provided correspondence between the Union's and Company's
solicitors in which the Union sought undertakings concerning the transfer of Delta
Mining employees to Delta Coal with new offers of employment. The Union alleged a
number of breaches of the Act and claimed that Delta Mining was forcing employees
to accept less favourable terms and conditions than those under the Delta Mining
Agreement. It sought the withdrawal of an Offer of Employment Form recently sent to
employees, which required their agreement and signature.
Delta clarified its position in a letter to the Union’s solicitors Slater & Gordon, dated 8
December 2016, in which it was said:
1. Delta's employees who have received the Information Pack distributed to the
Appin Mine on 5 December are not required to sign the forms enclosed.
2. Delta will not process any completed induction pack forms received from
Delta employees to date.
3. a failure to sign the form in the Information Pack will not result in the
termination of DM employees' employment at the Appin Mine or the
termination of their contract with Delta. These contracts remain operative and
ongoing until further notice from Delta.
4. subject to the possibility of shift and roster changes in accordance with the
terms of the Delta Mine EA and DC Enterprise Agreement 2014, Delta's
employees will continue to work at the mine in accordance with their existing
terms and conditions until further notice.
These arrangements were confirmed to the affected employees in a Notice issued on 8
December 2016. The following day, Mr McAlary sent letters to the employees
directing them to attend work at the mine. Further lawyer to lawyer exchanges
followed. The employees continued to not attend work from 10 December 2016.
Mr McAlary's evidence also included updates from the Union to its Appin contract
members which advised:
● the suspension of organised rallies and marches in the week of 12 December 2016;
● an intention to file an application for a Protected Action Ballot Order (This Order
was approved by the Commission on 15 December 2016; and
● a family Christmas party on 22 December 2016.
Mr McAlary also annexed to his statement various media reports of the Union's protest
rallies and demonstrations in support of the industrial campaign against the companies.
Ms Jovanovski9 provided evidence of her involvement in the communication sessions
held with employees from 28 November 2016 and the preparation and distribution of
an information pack sent to all affected employees after 5 December 2016.
[2017] FWCFB 7
7
Ms Jovanovski had been advised by the payroll section that in the period 28 November
to 4 December 2016:
● 11 Delta Coal employees were on annual leave;
● 1 employee was on long service leave; and
● 81 were on sick leave.
In the period 5 December to 11 December 2016;
● 3 Delta Coal employees were on annual leave;
● 4 were on long service leave; and
● 54 were on sick leave.
(I note a similar pattern of absences for Delta Mining employees).
Ms Jovanovski gave evidence of recent conversations she'd had with a number of
Delta Mining employees. As these employees are engaged by a different entity to the
applicant here before the Commission, these conversations are only relevant to the
broader industrial dispute.
Ms Jovanovski further deposed that both permanent and casual employees of Delta
Coal are allocated a set roster with three 12 hour shifts a week. These rosters do not
change unless a new package of work is introduced or to fill in for other employees on
other shifts. Ms Jovanovski said that employees do not call each day or each week as
they know their work is regular and consistent and does not change until they are
given specific notice otherwise.
In oral evidence, Ms Jovanovski said that no employee of Delta Coal has accepted an
offer of ongoing employment because they have not been at work.10’
[9] Under the heading ‘Consideration’ the Deputy President stressed that the CFMEU
brought no evidence to challenge or contradict the evidence of Ms McAlary or Ms
Jovanovski, despite his offer to adjourn proceedings to enable it to do so. Accordingly, he
stated, the evidence of Delta Coal had to be accepted.11
[10] The Deputy President stated the following reasons for finding that the persons subject
to the application were and continued to be employees of Delta Coal:
‘1. Delta Coal has not terminated the employment of any of the employees. Nor has
Delta Coal engaged in a course of conduct which expressly or impliedly has resulted in
the termination of any of the employees' employment. Indeed, the opposite is the
case. At all times the employer has conducted itself and represented its position as the
continuing employer of the employees and has made it patently clear that it continues
to be the employer.
2. The relevant employees have conducted themselves on the basis of a continuing
employment relationship with Delta Coal. If it were otherwise, it is difficult to
understand why a small cohort of them would attend for work and perform work in the
usual way. For the vast majority, it does not make logical sense why they would
[2017] FWCFB 7
8
continue to take annual leave, long service leave or sick leave and provide medical
certificates, if they believed their employment relationship had ended.
3. Shortly stated, both parties to the employment relationship (and initially the
CFMEU) have, and continue to conduct themselves, as if the employment relationship
remains ‘on foot’.
4. The evidence is that the Union has sought to engage with Delta Coal after 30
November 2016 as to the ongoing terms and conditions of the employees within the
broader industrial dispute between Delta SBD and the Union. It is difficult to
understand why this would be so if the Union believed that on 2 December 2016 the
employment relationship had ended.
5. 84 of the 106 employees of Delta Coal are casual employees who work regular and
systematic shifts. I agree that the traditional indicia of casual employment is that each
casual shift constitutes a ‘stand-alone’ contract of employment with a commencement
and an end point. However, that does not necessarily mean that there is not an ongoing
employment relationship between the employer and the employees, which as a
consequence, confers certain rights and obligations on both of them. For example, a
casual employee who has regular and systematic engagements, indeed in some cases
over many years, have unfair dismissal rights and for some casual employees, in some
industries, long service leave entitlements. I note that I was not informed whether the
Union, or any of the employees, have filed s 394 Unfair Dismissal applications, if
their contention is that their employment was terminated unfairly, some time on or
around 2 December 2016. I suspect that no such applications have been lodged.
6. In Broadspectrum (Australia) Pty Ltd v AMWU [2016] FWC 8383, Gooley DP
recently dealt with a similar claim by the AMWU as to unprotected action taken by
casual employees. Her Honour said at paragraph 42 to 44 of that decision:
I do not accept the submission that because the employees were casual they
were not required to attend for work. This submission relied upon a matter
before Senior Deputy President Watson. However, no decision was issued in
that matter and therefore does not support the submission made by the AMWU.
The employees were bound by their employment contract and that contract
provided that their hours of work would be in accordance with the
agreement. That contract provided that the employees' hours of work will be
arranged by management in accordance with those contract and the
agreement, the Broadspectrum employees were required to attend work on 21
November 2016.
7. The fact that an employer loses a contract does not automatically mean the
employees no longer work for the employer. Here the employer has not changed and
has not dismissed any employee. This has been a regular feature of this mine for years
and in the industry generally.12’
[11] Having found that there was a continuing employment relationship between the
employees and Delta Coal the Deputy President went on to consider whether the employees’
conduct constituted industrial action. He noted that the CFMEU did not dispute that its
[2017] FWCFB 7
9
members were calling in sick, advising of being unfit for work, or simply not turning up for
work, having been directed to do so by Delta Coal13. He commented:
‘There is a curious air of unreality, if not fantasy with a proposition that apart from a
very small number, including those on annual or long service leave that the vast
majority of 106 employees have been sick or unfit for work since 30 November 2016.
Does anyone seriously suggest, or expect me to believe that this is a mere unfortunate
coincidence?
In my view, given all the accompanying media reports and explicit acknowledgement
of coordinated Union activities, this conduct is a central feature of an organised
industrial campaign against South32, Delta SPD, Delta Mining and Delta Coal to exert
pressure on the companies in respect to ongoing wages and conditions at the Appin
Mine.14’
[12] The Deputy President found that the refusal of the employees to attend for work was
unprotected industrial action, and that unprotected industrial action was happening and likely
to continue. He was also satisfied that the unprotected action was being orchestrated and
organised by the CFMEU, its officers and delegates. Accordingly he issued the Order
extracted earlier15.
The submissions of the CFMEU
[13] The CFMEU submitted that the Deputy President mistook the facts of the case and/or
failed to take into account material considerations by ignoring certain crucial matters in his
finding that Delta Coal had not terminated any employees and had at all times conducted itself
and represented its position as the continuing employer of the employees:
a) The absence of a written contract of employment that provides for any period of
notice or termination otherwise than in accordance with the enterprise
agreement;
b) Delta Coal operated on the basis that none of its employees at the mine had a
term of employment which went beyond the term of its previous contracts at the
mine;
c) There is no provision in the agreement for any period of notice of termination to
be given to employees other than permanent employees and there were no
permanent employees employed by Delta Coal;
d) As a result of the expiry of the contracts pursuant to which Delta Coal
previously provided labour to the mine and the entering into new contracts to
supply such labour, from 29 November to 2 December 2016 Delta Coal made a
Power Point presentation to its employees informing them that they would be
offered new employment agreements;
e) As a result of the expiry of the contracts pursuant to which Delta Coal provided
labour to the mine and the entering into new contracts to supply such labour, on
and after 5 December 2016 Delta Coal distributed an information pack which
terminated the employees by telling the employees that their employment
contracts were ‘void’ and offered them re-employment under new employment
contracts;
f) Ms Jovanovski, who was responsible for human resources for Delta Coal, gave
evidence that the intended effect of this communication was that the previous
[2017] FWCFB 7
10
contracts of employment of the employees were finished and that they were
being offered new contracts of employment;
g) After 5 December 2016 there had been no offer or acceptance of any new
contracts of employment.
[14] The CFMEU also submitted that the Deputy President took into account a number of
irrelevant considerations. These included reliance on the fact that some employees were on
annual leave, long service leave and sick leave. Such conduct would only be relevant if it
constituted a new contract of employment following the termination of the earlier contract.
However, there could be no new contract of employment formed as a result of the taking of
sick leave that was not accepted as genuine by Delta Coal or the Deputy President. The
CFMEU submitted that those employees who had offered themselves for work with Delta
Coal after the alleged termination of the earlier contract had entered into new contracts of
employment. This could not affect the employment status of those employees who did not
offer themselves for work.
[15] The CFMEU also submitted that the Deputy President had wrongly relied on the
CFMEU engaging with Delta Coal about the terms and conditions of employment to apply at
the mine. This was an irrelevant consideration as it was consistent with engaging with Delta
Coal about the terms and conditions in new employment contracts to apply at the mine.
[16] Finally the CFMEU submitted that the Deputy President erroneously relied on the
proposition that casual employees might have an ongoing employment relationship with an
employer that might give rise to the right to bring an unfair dismissal application. This
proposition was irrelevant to whether there had been a dismissal.
[17] With regard to its contention that the Order was made in excess of the power available
under s.418 of the FW Act, the CFMEU submitted that paragraphs 3.1, 3.3 and 3.4 of the
Order suffer from the lack of specificity found to be beyond power by Jessup J in Esso
Australia Pty Ltd v The Australian Workers Union16. It also submitted that paragraph 3.2 is
beyond power because it extends beyond engagement in industrial action, in that the general
obligation it imposes is unqualified by any reference to the respondent’s requirements having
to be lawful and reasonable.
[18] The CFMEU submitted that other parts of the Order are invalid. Because the Deputy
President went no further than finding that industrial action in the form of ‘refusal of the
employees to attend for work’ is happening or being organised, the Order cannot validly
extend beyond stopping the occurrence and organisation of the refusal of the employees to
attend for work. Moreover, insofar as paragraph 3.3 imposes an obligation on the CFMEU’s
employees, agents and delegates and the employees, it is also beyond power. The terms of the
Order purports to bind all those falling within the four categories of persons, whether or not
they have any knowledge of, or concern with, the industrial action to which the Order relates.
It is accordingly of such generality and vagueness that it goes manifestly beyond the notion of
an Order that the industrial action, of whatever kind, stop or not be organised. Nor was there
any finding that the employees had organised the industrial action.
[19] The CFMEU submitted that these fundamental defects in the substantive paragraphs of
the Order meant that the Order as a whole was invalid. The Order could not therefore be
retrospectively cured by amendment.
[2017] FWCFB 7
11
Consideration
[20] Under s.418(1) of the FW Act the Commission must make an order of the specified
type if it ‘appears to the FWC’ that industrial action that is not protected industrial action is
happening, or is threatened, impending or probable, or is being organised. That is, under the
subsection, the relevant jurisdictional fact is the Commission member’s findings regarding the
the matters specified in the subsection. The decision making process under the subsection can
be characterised as discretionary. Accordingly, in an appeal such as this one, the appellant
needs to demonstrate error of the House v King type (rather than whether the Deputy
President reached the right conclusion about the actual state of affairs)17.
[21] We are not satisfied that the Deputy President made any error of the requisite kind in
finding that there was a continuing employment relationship between Delta Coal and the
employees at the Appin coal mine.
[22] The Deputy President summarised key aspects of the evidence before him relevant to
this issue. In particular he referred to evidence that was inconsistent with the proposition that
the employees had been dismissed on 5 December 2016. These included the clarifying letter
Delta Coal wrote to the CFMEU’s solicitor on 8 December 2016 which indicated that the
employees’ contracts with Delta remained ‘operative and ongoing until further notice from
Delta’, and that the employees themselves continued to conduct themselves on the basis of a
continuing employment relationship, with some attending for work and the others taking
annual leave, long service leave or sick leave (including with the provision of medical
certificates). There was no evidence that any ‘employee’ considered themselves terminated
from their employment.
[23] Nor do we think that the Deputy President made an error of the House v King type in
his finding that the employees’ conduct constituted industrial action. It was an available
inference on the evidence that the majority of employees were not genuinely sick or unfit for
work but were rather engaged in unprotected industrial action as part of an industrial
campaign organised by the CFMEU. These findings were sufficient to require the making of
an order by the Deputy President under s.418(1). Accordingly we decline to grant permission
to appeal in relation to the decision made by the Deputy to make an order under s.418.
[24] However we are satisfied that the Order made by the Deputy President is in certain
respects beyond power. We grant permission to appeal the Order on this basis only and will
vary it so as to bring it within the Commission’s jurisdiction18.
[25] We turn first to the alleged lack of specificity in the Order. The majority judgement
(Gray and North JJ ) of the Full Court of the Federal Court in TWU v AIRC 19 said (in relation
to a predecessor provision):
‘’It is also necessary to bear in mind that the duty of the Commission to make orders is
confined by s.496(1) of the WR Act to orders that “the industrial action stop, not occur
and not be organised.” The reference to “the industrial action is a reference to
industrial action that appears to the Commission to be happening, to be threatened,
impending or probable, or to be in the process of being organised. It is necessary for
the Commission to identify the industrial action that appears to it to be happening,
[2017] FWCFB 7
12
threatened, impending or probable, or being organised, and to make orders that that
industrial action stop, not occur or not be organised, as the case may be. Section 496(1)
contains neither a duty nor a power to make orders that any act or omission that might
possibly fall within the definition of “industrial action” in s.420 of the WR Act stop,
not occur or not be organised. The Commission’s duty, and power, is limited to the
industrial action that is the subject of the application before it’20.
[26] While TWU v AIRC concerned orders made under s496(1) of the former Workplace
Relations Act that provision is sufficiently similar to s.418(1) of the FW Act as to make its
reasoning fully applicable. Indeed, as was noted by the Full Bench in MUA v Patrick
Stevedores
‘to the extent that there are changes in s418(1) compared to the former s.496(1), that
appears to be a result of the legislative drafting being designed to conform to the
reasoning of the majority in TWU v Australian Industrial Relations Commission.’21
[27] The Deputy President found ‘the refusal of the employees to attend for work is
industrial action within the meaning of s 19 of the Act and such action is unprotected
industrial action for the purposes of s 418 of the Act.’ He also found that the unprotected
industrial action is happening and is likely to continue and that the unprotected industrial
action was being orchestrated and organised by the CFMEU, its officers and delegates.
[28] The Order should be amended to restrict the definition of ‘Industrial Action’ in clause
4 by deleting 4.1(a) and (b) and deleting the words ‘or a failure or refusal to perform any work
at all by Employees who attend for work’ from (c).
[29] In respect of clause 3.2 which was stayed by Hatcher VP, we agree with the CFMEU
that this clause extends beyond engagement in industrial action and is therefore beyond
power. We note that similar clauses were found to be beyond power in TWU v AIRC22 and
MUA v Patrick Stevedores on the basis that the employer’s requirements to perform work
were not qualified by having to be lawful and reasonable. We accordingly vary the Order by
deleting paragraph 3.2.
[30] The Deputy President made a finding that the unprotected action was being
orchestrated and organised by the CFMEU, its officers and delegates. We consider, in a
general sense, that this finding was available on the evidence, but the Order should be
restricted to the CFMEU’s officers and those of its delegates who are employees of Delta
Coal.
[31] The obligations under the Order at clause 3.1 are for the employees to immediately
cease all industrial action and not to recommence engage in or threaten to engage in Industrial
Action.
[32] At clause 3.3 further obligations are imposed being that the CFMEU its officers,
employees, agents and delegates and the Employees to immediately stop organising and
refrain from organising any industrial action involving any of the employees.
[33] At clause 3.3(b) of the Order the CFMEU its officers, employees, agents and delegates
and the employees must additionally not “organise, aid, abet, direct, procure, induce, advise,
[2017] FWCFB 7
13
authorise or encourage any employee to engage in Industrial Action and not facilitate any
industrial action by any employee.
[34] As held by the Full Bench in MUA v Patrick Stevedores as far as the type of conduct
outlined in clause 3.3(b) may be synonymous with or a subset of the concept of the
organisation of industrial action, this detail is unnecessary. However, to the extent that they
may go beyond the organisation of industrial action, they are beyond power unless justifiable
as essential or necessary to make effective the “not organise” order or incidental to or
consequential upon the making of the order.1 Our Order will remove these additional
obligations in the absence of any demonstrated necessity for their inclusion.
[35] As stated by the Full Court in TWU v AIRC the Commission must focus its attention
on the essence of the powers conferred on it when it formulates its orders. The Commission is
not able to choose whatever means it thinks is likely to enhance the attainment of the object of
its orders. The order must essentially be an order that the relevant industrial action stop, not
occur or not be organised, as the case may be.2
[36] All parties accepted that some employees have not engaged in industrial action and
have attended for work as required while others were on authorised leave of various
descriptions.
These employees could not be found to have engaged in industrial action and the Order
cannot apply to them.
[37] We do not consider that any other part of the Order is beyond power.
[38] We quash those clauses of the Order that we have found to be beyond power and issue
an amended Order as follows:
‘1. Title
1.1 This order shall be known as the Delta Coal Industrial Action Order 2016 (No.1)
(the Order).
2. Parties Bound and application of Order
2.1 This Order is binding on:
(a) the Construction, Forestry, Mining and Energy Union (CFMEU);
(b) the CFMEU, including its office-holders and those of its delegates employed by
Delta Coal;
(c) employees of Delta Coal Mining Pty Ltd (DC) (the Employees) who are:
(i) members, or are eligible to be members, of the CFMEU; and
(ii) engaged at the Appin mine (Mine); and
(iii) engaged in work that is regulated by the DC Enterprise Agreement 2014.
and were absent from work during the period of industrial action without
approval from their employer.
1 At [46]
2 Per Gray and North JJ at [38]
[2017] FWCFB 7
14
3. Industrial action to stop, not occur or be threatened
3.1 Each Employee, except those employees who have attended for work or who are
on authorised leave, must immediately cease and stop all Industrial Action, and must
not recommence, engage in or threaten to engage in Industrial Action while this Order
is in force.
3.2 The CFMEU, its officers, and delegates employed by Delta Coal bound by this
Order must immediately stop organising, and refrain from organising, any Industrial
Action involving any of the Employees;
3.3 The CFMEU must take all reasonably practicable steps necessary and available to
it under its Rules, or otherwise, to:
(a) immediately advise Employees who are members of the CFMEU that:
(i) any Industrial Action must not be engaged in or threatened;
(ii) any Industrial Action must not be organised; and
(iii) any direction, advice or authorisation by the CFMEU to the
Employees to engage in Industrial Action is withdrawn and such
Industrial Action must stop or not occur.
3.4 By no later than on 12.00pm Monday 19 December 2016, the CFMEU must:
(a) provide a copy of the Order to its delegates engaged in or connected with
work at the Mine who are employed by Delta Coal and take all reasonably
practicable steps necessary and available to it under its Rules to ensure that
its delegates comply with this Order;
(b) cause a notice or bulletin to be published and distributed to Employees who
are members of the CFMEU and placed on noticeboards at the Mine,
informing these Employees of this Order and that any direction, advice or
authorisation by the CFMEU to Employees to threaten or engage in
Industrial Action is withdrawn; and
(c) post this Order in a prominent position on its website.
3.6 The CFMEU must advise the Company's representatives in writing by facsimile or
email transmission by 10am Tuesday 20 December 2016 of the steps taken to comply
with paragraph 3.4 of this Order, including the form of notification, and if written, its
content, and the further steps they intend to take (if any) to comply with the Order in
respect of any Employee who, by that time, has not been notified.
4 Definition of Industrial Action
4.1 For the purposes of this Order "Industrial Action" means:
(a) a failure or refusal by Employees to attend for work;
[2017] FWCFB 7
15
but does not include:
(b) protected industrial action within the meaning of section 408 of the Fair
Work Act 2009;
(c) action by employees that is authorised or agreed to by or on behalf of his or
her employer; or
(d) action by an employee if:
(i) the action was based on a reasonable concern by the employee about
an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction
of his or her employer to perform other available work, whether at the
same or another workplace,
5. Service of Order
5.1 Without limitation as to other means of service, it will be sufficient service of this
Order:
(a) upon the CFMEU and its officers, employees and delegates if:
(i) a copy of this Order is sent by facsimile or email (or as otherwise provided)
to the National Secretary of the CFMEU or District Secretary of the CFMEU
New South Wales South Western Mining & Energy District, or to an officer of
the CFMEU who has dealings with the Company in relation to any of the
Employees;
(ii) a copy of this order is sent by email to the email address of New South
Wales South Western Mining & Energy District, District Vice President, Bob
Timbs (BobTimbs@umw.com.au); or
(iii) a copy of this Order is handed to or read in the presence of an officer or
employee of the CFMEU.
(b) upon an Employee who is a member of the CFMEU:
(i) a copy of the Order is served on the CFMEU as provided for in clause
5.1(a); or
(ii) a copy of this Order is placed on the notice boards usually used for the
purpose of communicating with Employees at the Mine.
(c) Upon an Employee who is not a member of the CFMEU:
(i) a text message or email in the following terms is sent by the Company to the
mobile phone number or email address on the Employee's personnel file:
“The Fair Work Commission has ordered that from 4pm Friday 16 December
2016, the employees of Delta Coal Mining Pty Ltd at the Appin Mine must stop
all industrial action and not recommence, engage in, or threaten to engage in,
industrial action. All employees must attend work as rostered - Neville
McAlary, Delta.".
[2017] FWCFB 7
16
and
(ii) a copy of this Order is placed on the notice boards usually used for
the purpose of communicating with Employees at the Mine.
6. TERM AND DATE OF EFFECT
6.1 This Order shall come into effect at 4.00pm on 9 January 2017 and shall replace
the Delta Coal Industrial Action Order 2016 (No.1) and shall cease to have effect at
4.00pm on 16 January 2017.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr S Crawshaw, Senior Counsel, appeared for the Appellant, instructed by Mr P Pasfield of
Slater & Gordon
Mr G Hatcher, Senior Counsel, appeared for the Respondent, instructed by Mr J de Flamingh
of Corrs Chambers Westgarth
Hearing details:
2016
Sydney
29 December
Printed by authority of the Commonwealth Government Printer
PR589036
1 Delta Coal Industrial Action Order 2016 (No. 1) PR588682
2 Delta Coal Mining Pty Ltd v Construction, Forestry, Mining and Energy Union [2016] FWC 9146
3 PR588831
4 [2016] FWC 9146 at [7]
5 At [8]
6 At [10]
7 At [11] – [13]
8 The Managing Director and CEO of Delta SBD (the parent company of Delta Coal and Delta Mining)
9 Health Safety Environment Community & HR Coordinator for Delta SBD
WORK THE F NOISSIWWOD YNOM THE SEZ
[2017] FWCFB 7
17
10 At [16] - [25]
11 At [26]
12 At [28]
13 At [31]
14 At [32] – [33]
15 At [36] – [38]
16 [2016] FCAFC 72 at [1], [40] to [55], [372] – [380]
17 Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd (2013) 237 IR 1 at [11]
18 In a similar manner to the Full Bench in Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd (2013) 237 IR
1
19 Transport Workers’ Union of New South Wales v Australian Industrial Relations Commission (2008) 166 FCR 108
20 At [39]
21 Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd (2013) 237 IR 1 at [32]
22 Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd (2013) 237 IR 1 at [48] and Transport Workers’ Union
of New South Wales v Australian Industrial Relations Commission (2008) 166 FCR 108; 171 IR 84 at [48]
