INTERIM ORDER

Fair Work Act 2009
s.418—Industrial action

AGL Loy Yang Pty Ltd T/A AGL Loy Yang
v
Bryan Walsh; Gregory Hardy; Construction, Forestry, Mining and Energy Union and Others
(C2016/4424)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 10 JULY 2016

Application for an order that industrial action by employees or employers stop etc. - Interim Order.

1. Introduction
1.1 This Order shall be known as the AGL Loy Yang Pty Ltd Industrial Action Interim Order No 1 2016 (the Order).
1.2 This Order is an Interim Order made pursuant to s.420(2) of the Fair Work Act 2009.
2. APPLICATION AND PARTIES BOUND
2.1 This Order is binding on and applies to:

(a) AGL Loy Yang Pty Ltd (the Company);
(b) the Construction, Forestry, Mining and Energy Union (CFMEU), including delegates, officers, employees and agents of the CFMEU;
(c) Mr Gregory Hardy (Mr Hardy);
(d) Mr Bryan Walsh (Mr Walsh); and
(e) employees of the Company who are members of the CFMEU employed in the Station Operations Group at the facility known as the Loy Yang site in Traralgon (the Site) and who are covered by the Loy Yang Power Enterprise Agreement 2012 (the Employees).

2.2 In this order, Union Representatives means:

(a) office holders of the CFMEU Mining & Energy Division Victorian District Branch; and
(b) any employee of the CFMEU who attends the Site or communicates with any of the Employees while this Order is in effect.

3. INDUSTRIAL ACTION MUST STOP, NOT OCCUR AND NOT BE ORGANISED
3.1 The CFMEU, Mr Hardy and Mr Walsh, must not organise any industrial action involving any of the Employees.
3.2 Each Employee must:

(a) immediately stop engaging in industrial action;
(b) not continue, or organise any industrial action during the period of operation of this Order.

3.3 For the purposes of this Order, the expression “industrial action” means:

(a) a ban on the performance of overtime contrary to clause 15 of the Loy Yang Power Enterprise Agreement 2012 and contrary to custom and practice regarding availability for and the performance of overtime,

but does not include the following:

(b) action or conduct by Employees that is authorised or agreed to by or on behalf of the Company; or
(c) 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, that was safe and appropriate for the employee to perform.

4. STEPS TO BE TAKEN BY THE CFMEU
4.1 The CFMEU must prepare the following written notice which must be signed by an authorised official of the CFMEU in the following terms (Notice):

“The Fair Work Commission has issued an Interim Order to stop or prevent industrial action.

The Interim Order is called AGL Loy Yang Pty Ltd Industrial Action Interim Order No 1 2016.

The order requires that until the determination of the Company’s Application for orders pursuant to s.418 of the Fair Work Act 2009, there be no ban on the performance of overtime contrary to clause 15 of the Loy Yang Power Enterprise Agreement 2012 (Agreement) and contrary to custom and practice regarding availability for and the performance of overtime by employees of the Company who are members of the CFMEU employed at the Loy Yang site in Traralgon who are covered by the Agreement (Employees).

The order applies to:

• the CFMEU; and

• Employees.

Accordingly, any direction, advice or authorisation by the CFMEU to the Employees who are its members to implement ban on the performance of overtime contrary to clause 15 of the Loy Yang Power Enterprise Agreement 2012 (Agreement) and contrary to custom and practice regarding availability for and the performance of overtime by employees is withdrawn and such action must stop or not occur. "

4.2 The CFMEU's National Secretary (or his or her authorised delegate) must provide a copy of the Notice to Richard West by email at [email protected] by 6.00pm on 10 July 2016.

The CFMEU must take all reasonable steps necessary and available under its rules to advise its Union Representatives and each of the Employees of the terms of this Order by giving the Notice to each of its Union Representatives and Employees by 6.00pm on 10 July 2016.

5. SERVICE OF ORDER
5.1 Without limitation as to other means of service, it will be sufficient service of this Order upon the parties bound by this Order if:

(a) In the case of the CFMEU, a copy of this Order is either:

(i) sent by facsimile transmission to:

Mr Geoff Dyke

Secretary

Victorian District Branch

Mining & Energy Division

Construction, Forestry, Mining and Energy Union

Facsimile: (03) 5133 7058 ; or

(ii) emailed to [email protected]; or
(iii) a copy of this Order is handed to or read in the presence of an officer, employee, agent or delegate of the CFMEU;

(b) In the case of Mr Hardy, a copy of this Order is either:

(i) served on the CFMEU in accordance with paragraph 5.1(a) above; or
(ii) emailed to [email protected];

(d) in the case of the Employees, a copy of this Order is placed on the notice board(s) usually used for the purpose of communicating with the Employees.

6. SEVERABILITY
6.1 Part or all of any clause of this Order that is invalid or unenforceable will be severed from this Order and the remaining provisions of this Order continue in force.
7. TERM AND DATE OF EFFECT
7.1 This Order shall come into effect immediately. This Order shall continue in operation until the determination of the Company’s s.418 application.

Seal of the Fair Work Commission with member's signature.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer