[2010] FWA 8674 |
|
DECISION |
Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.
Asurco Contracting Pty Ltd
v
Construction, Forestry, Mining and Energy Union
(C2010/5457)
SENIOR DEPUTY PRESIDENT O'CALLAGHAN |
ADELAIDE, 10 NOVEMBER 2010 |
[1] On 8 November 2010 Asurco Contracting Pty Ltd trading as Asurco (Asurco) lodged an application pursuant to section 418 of the Fair Work Act 2009 (the Act), seeking an order that industrial action proposed by the Construction, Forestry, Mining and Energy Union (CFMEU) to commence on 11 November 2010 stop, or not occur.
[2] The application was the subject of a hearing on 9 November 2010. At this hearing Asurco was represented by Mr Earls and Mr Putland of the Master Builders Association of South Australia and by Mr Pawelski, the Asurco Managing Director. The CFMEU was represented by Mr O’Malley.
[3] The background to the matter is that on 19 July 2010 a protected action ballot order was issued by Bartel, DP. The ballot questions put to the employees were:
In support of reaching an Enterprise Agreement with your employer, do you endorse the taking of protected industrial action, which may involve taking separately, concurrently and/or consecutively any or all of the actions below?
1. One or more stop work meetings for up to 4 hours duration?
2. One or more 4 hour work stoppage/s?
3. One or more 24 hour stoppage/s?
4. One or more 48 hour stoppage/s?
5. One or more 7 day stoppage/s?
6. Ban/s on the working of overtime?
7. Ban/s on the working on Sundays?
8. Strict adherence to the Union Rostered Day Off Calendar?
9. One or more 2 hour stoppage/s?
[4] The ballot result was declared on 6 August 2010, with each of the above questions being authorised pursuant to section 457 of the Act.
[5] Asurco now make this application for a section 418 order on the basis that, on 5 November 2010 the CFMEU provided notice in the following terms:
“We wish to advise that the employees of Asurco will commence protected industrial action as listed below:
• A 48 hour stoppage on Thursday 11th of November 2010 and Friday 12th of November 2010 as approved in question 4 of the ballot a 48 Hour Stoppage.
• A ban on working overtime on Saturday 13th August as approved in question 6 of the ballot, ban on working overtime. (sic)
Yours faithfully
Darren Roberts
Assistant Secretary”
[6] It is common ground that, before the hearing on 9 November 2010, the CFMEU amended this notice in the following terms:
“We wish to advise that the previous notification for protected industrial action dated the 5th of November 2010 had a typographical error at the second dot point in that it stated the action for an overtime ban as per question 6 of the ballot should have read the 13th of November 2010 and not the 13th of August 2010.
We therefore withdraw that part of the notice which refers to a ban on Saturday overtime as per Question 6 of the Protected Action Ballot.
To ensure there is no misunderstanding; the notification relating to a 48 hour stoppage on Thursday 11th November and Friday 12th of November remains in place.
Yours faithfully
Darren Roberts
Assistant Secretary”
[7] Consequently, the only issue here relates to the extent to which the 48-hour stoppage proposed for 11 and 12 November 2010 represents protected industrial action.
[8] Asurco asserts that this 48-hour stoppage is outside of the 30 day period specified in section 459(1)(d) and must consequently be unprotected industrial action which should be stopped pursuant to section 418(1).
[9] Whilst it did not offer this information at the outset, at the hearing on 9 November 2010, Asurco conceded that an earlier 48-hour stoppage had occurred on 26 and 27 August 2010, within the 30-day period. However, Asurco asserted that the gap between the first 48-hour stoppage and the stoppage proposed for 11 and 12 November 2010 meant that these actions could not be regarded as consecutive actions. Further, Asurco asserted that the CFMEU notice of 5 November 2010 referred to action that "will commence" and, as such, the proposed 48-hour stoppage must be regarded as a new or discreet form of action commencing outside of the specified 30-day period.
[10] The CFMEU position was that its members’ commenced protected industrial action in the form of the 48-hour stoppages within the 30-day period, and that accordingly, the continuation of this authorised form of industrial action was permitted outside of these 30-days.
[11] Section 418 of the Act states:
“418 FWA must order that industrial action by employees or employers stop etc.
(1) If it appears to FWA 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;
FWA 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.
Note: For interim orders, see section 420.
(2) FWA may make the order:
(a) on its own initiative; or
(b) on application by either of the following:
(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;
(ii) an organisation of which a person referred to in subparagraph (i) is a member.
(3) In making the order, FWA does not have to specify the particular industrial action.
(4) If FWA is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:
(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or
(b) which has not ended before the beginning of that stop period; or
(c) beyond that stop period;
FWA may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.”
[12] Subsection 418(1) establishes a requirement on Fair Work Australia to make an order under this section if it appears that the industrial action is not protected.
[13] There are a range of situations which may make industrial action which is happening, threatened, impending or probable, not protected industrial action. Without being exhaustive, these situations are detailed in Division 2 of Part 3-3 of the Act. With respect to employee claim actions that may include the absence of authorisation by a protected action ballot, the inclusion of unlawful terms, or, pursuant to section 413, a failure to be genuinely trying to reach an agreement.
[14] Significantly, the only circumstance which is relied upon in this application is the proposition that the action cannot be protected because it is outside of the 30-day period specified in subsection 459(2).
[15] Section 459 relevantly states:
“459 Circumstances in which industrial action is authorised by protected action ballot
(1) Industrial action by employees is authorised by a protected action ballot if:
(a) the action was the subject of the ballot; and
(b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and
(c) more than 50% of the valid votes were votes approving the action; and
(d) the action commences:
(i) during the 30-day period starting on the date of the declaration of the results of the ballot; or
(ii) if FWA has extended that period under subsection (3)—during the extended period.
Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.
(2) If:
(a) the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and
(b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;
then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).
....”
[16] The protected action ballot authorisation which is relied upon in this situation may be conveniently phrased as authorising one or more 48-hour stoppages either separately, or consecutively, or concurrently with other authorised actions.
[17] The phrase, "separately, concurrently and/or consecutively" was recently considered by a Full Bench of Fair Work Australia in John Holland v AFMEPKIU 1 relative to whether that phrase could be incorporated in a protected action ballot question. In that decision the Full Bench stated:
“[20] The appellant’s criticism of the questions in the AMWU application is based on a technical and pedantic approach. The expression “separately, concurrently and/or consecutively” does not deprive the question of meaning. Those expressions apply, as far as there is scope, to the types of industrial action specified. We have already noted the terms of s.459(2) which gives separate justification for the term “consecutively”. While it is possible to construct extreme examples of the number of types of industrial action which might be authorised by an affirmative answer to the questions, in practical terms the questions do no more than identify eight types of industrial action and the possible options for taking each of those types of action.”
[18] In University of South Australia v National Tertiary Education Industrial Union 2 I adopted the following position:
“[20] The industrial action at issue here has been set out in ordinary English such that its intent is clear. In United Colleries Pty Ltd v CFMEU 1 Gyles J addressed the employer proposition that each form of industrial action authorised in a ballot is self contained such that it could not be repeated after the 30 day protected industrial action period that was then specified in the Workplace Relations Act 1996. His Honour stated:
“21 I am not persuaded that the relevant provisions of the Act are as restrictive as is submitted on behalf of United Collieries. The issue really is whether each question passed at the ballot properly describes industrial action. If a question in the form of question 1 is answered in the affirmative, then industrial action of a particular nature is authorised with no time limits. The effect of the position of United Collieries is that there is an unspoken limitation that action would have to take place within the 30 day period. I disagree. The relevant period for industrial action, having in mind the scheme of the Part of the Act in question, is the bargaining period, not the 30 day period. The existence of the 30 day period does not affect the answer to the question as to whether industrial action has been properly authorised. The purpose of the time limit in question needs to be considered. It is a time limit for commencement of industrial action, not a time limit for completion of industrial action. The bargaining period provides that limit. In my opinion, the purpose of the provision is to ensure that the employees are voting upon a real proposal based upon relatively contemporaneous circumstances. A commitment to relatively prompt action is involved, rather than simply giving an authority which can be held up the sleeve of those negotiating for the employees.
22 The grammatical argument advanced by United Collieries is unconvincing. The phrase ‘the action’ refers back to ‘industrial action’. There is, of course, the need to specify the industrial action but there is no indication that that must be done by reference only to specific instances of it. A consequence of the argument for United Collieries is that a separate ballot would be required before each instance of, eg, a 24 hour stoppage, a ban on the working of non-rostered overtime or a shift stoppage. Bearing in mind the detailed and formal nature of conducting a ballot and the consequent time and cost, that would be an unlikely result.”
[21] The scheme of the Workplace Relations Act 1996 is distinctly different to that of the current Act in that section 478 of the Workplace Relations Act recognised that industrial action could, in certain circumstances, continue during a bargaining period. The current Act does not preserve the concept of a bargaining period but it retains the concept of continuing protected industrial action which commenced before the expiry of 30 days. In this respect the United Colleries decision remains apposite.”
[19] I consider that the initiation of the 48-hour stoppage within the 30-day period specified in section 459(1)(d) means that, pursuant to section 459(2), further 48-hour stoppages outside of that initial 30-day period may be considered consecutive forms of industrial action. The section refers to consecutive periods and in this sense I consider that the concept of consecutive must be applied in so far as it relates to a sequence of actions. In the context of the Act it would be illogical to apply section 459(2) only on the basis that it referred to protected industrial actions which occurred without a pause.
[20] Further, I am not persuaded that the use of the phrase "will commence industrial action" establishes that the 48-hour stoppage proposed for 11 and 12 November 2010 is a new form of industrial action which was unrelated to the 48-hour stoppage of August 2010. It is the same type of industrial action, authorised by the ballot, as was previously taken within the 30-day period.
Conclusion
[21] For the reasons I have set out, I am not satisfied that the 48-hour stoppage proposed for 11 and 12 November 2010 is unprotected industrial action, on the basis that it follows action of this nature taken during the 30-days following the declaration of a protected action ballot.
[22] Whilst it is open for the employer to do so, no alternative basis for a conclusion that the proposed 48-hour stoppage is not protected has been put to me. As a result, I do not consider that an order to stop this protected industrial action can be made, and the application must be dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
T Earls representing Asurco Contracting Pty Ltd.
M O’Malley for the Construction, Forestry, Mining and Energy Union.
Hearing details:
2010.
Adelaide:
November 9.
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