ORDER

Fair Work Act 2009
s.418—Industrial action

AGL Loy Yang Pty Ltd T/A AGL Loy Yang
v
Construction, Forestry, Mining and Energy Union; Gregory Hardy
(C2017/273)

COMMISSIONER ROE

MELBOURNE, 18 JANUARY 2017

Alleged industrial action at AGL Loy Yang, Loy Yang site.

1. TITLE

1.1 This Order shall be known as the AGL Loy Yang Pty Ltd Industrial Action Order No 1 2017 (the Order).

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);
(c) office holders of the CFMEU Mining & Energy Division Victorian District Branch;
(d) delegates, officers, employees and agents of the CFMEU who attend the Site or communicate with any of the Employees while this Order is in effect; and
(e) Mr Gregory Hardy (Mr Hardy).

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.

2.3 In this order, Employees means any employees of the Company who are members of the CFMEU employed at the Loy Yang A power station at the facility known as the Loy Yang site in Traralgon (the Site) in a position which is (or which, prior to 30 January 2017 was) covered by the Loy Yang Power Enterprise Agreement 2012.

3. INDUSTRIAL ACTION MUST STOP, NOT OCCUR AND NOT BE ORGANISED

3.1 The CFMEU and Mr Hardy must not organise any industrial action involving any of the Employees including without limitation:

(a) Giving any direction, advice or authorisation to the Employees who are members of the CFMEU to implement a ban limitation or restriction on the performance of overtime contrary to clause 15.2 or 73 of the Loy Yang Power Enterprise Agreement 2012 (Agreement), or contrary to custom and practice regarding availability for and the performance of overtime.
(b) Giving, any direction, advice or authorisation to the Employees who are members of the CFMEU to implement a practice in relation to the taking of personal/carer’s leave under clause 18 of the Agreement, or under the Fair Work Act 2009, the result of which is a restriction or limitation on the performance of work.

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

(a) a ban, limitation or restriction on the performance of overtime contrary to clause 15.2 of the Loy Yang Power Enterprise Agreement 2012 (Agreement), clause 73 of the Agreement, or contrary to custom and practice regarding availability for and the performance of overtime; or
(b) the adoption of a practice in relation to the taking of personal/carer’s leave under clause 18 of the Agreement, or under Division 7 of Part 2-2 of the Fair Work Act 2009, the result of which is a restriction or limitation on the performance of work

but does not include the following:

(c) action or conduct by Employees that is authorised or agreed to by or on behalf of the Company; 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, 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 a section 418 order to stop or prevent industrial action.

The order is called AGL Loy Yang Pty Ltd Industrial Action Order No 1 2017.

The order requires that there be no ban, limitation or restriction on the performance of overtime contrary to clause 15.2 of the Loy Yang Power Enterprise Agreement 2012 (Agreement), or clause 72 of the Agreement, or 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 A power station in Traralgon who are covered by the Agreement (Employees).

The order also requires that there be no practice in relation to the taking of personal/carer’s leave under clause 18 of the Agreement, or under the Fair Work Act 2009, the result of which is a restriction or limitation on the performance of work.

The order applies to the CFMEU.

Accordingly, any direction, advice or authorisation by the CFMEU to the Employees who are its members to implement a ban limitation or restriction on the performance of overtime contrary to clause 15.2 or 73 of the Loy Yang Power Enterprise Agreement 2012 (Agreement), or 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.

Also, any direction, advice or authorisation by the CFMEU to the Employees who are its members to implement a practice in relation to the taking of personal/carer’s leave under clause 18 of the Agreement, or under the Fair Work Act 2009, the result of which is a restriction or limitation on the performance of work, 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 Dan Williams by email at dan.williams@minterellison.com by 2:30pm. on 18 January 2017.

4.3 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 2:30pm on 18 January 2017.

SERVICE OF ORDER

4.4 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 gd14cfmeu@tpg.com.au; 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 hardyhouse7@bigpond.com.

5. TERM AND DATE OF EFFECT

5.1 This Order shall come into effect immediately. This Order shall remain in force for a period of one month.

COMMISSIONER

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