ORDER

Fair Work Act 2009
s.418—Industrial action

Hitachi Construction Machinery (Australia) Pty Ltd
v
Construction, Forestry, Maritime, Mining and Energy Union
(C2018/5734)

Application for an order to stop unprotected industrial action.

1 TITLE

This order shall be known as the Hitachi Construction Machinery (Australia) Industrial Action Order – November 2018 (the Order).

2 PARTIES BOUND AND APPLICATION OF ORDER

This Order is binding on and applies to:

2.1 the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU);

2.2 employees of Hitachi Construction Machinery (Australia) Pty Ltd (Hitachi) who have the CFMMEU as their bargaining representative for bargaining for an enterprise agreement to replace the Hitachi Construction Machinery (Australia) Pty Ltd Service Enterprise Agreement 2014 (collectively, the Employees); and

2.3 officers, servants and agents of the CFMMEU who have any responsibility for the industrial interests of, the Employees (collectively, the CFMMEU Representatives).

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

3.1 On and from the time specified in clause 5 of this Order, the CFMMEU must not organise any Industrial Action by any Employees.

3.2 On and from the time specified in clause 5 of this Order, each of the CFMMEU Representatives must not organise any Industrial Action by any Employees.

3.3 On and from the time specified in clause 5 of this Order, each Employee must not engage in any Industrial Action.

4 DEFINITION OF INDUSTRIAL ACTION

For the purposes of this Order, the expression “Industrial Action” means:

4.1 the cessation of the performance of work on-site at a site of a customer of Hitachi before the notified commencement time of any period of “protected industrial action”; or

4.2 the leaving of a site of a customer of Hitachi before the notified commencement time of any period of “protected industrial action”; or

4.3 the failure to be in attendance at a site of a customer of Hitachi (or such other locations as may be directed by Hitachi) and ready, willing and able to perform work on-site on and from the notified cessation time of any period of “protected industrial action”;

but excludes:

4.4 “protected industrial action” within the meaning of the Fair Work Act 2009 (Cth);

4.5 action by an Employee that is authorised or agreed to by Hitachi; and

4.6 action by an Employee if such action was based on the Employee’s reasonable concern about an imminent risk to the Employee’s health or safety, and the Employee did not unreasonably fail to comply with the directions of Hitachi to perform other available work, whether at the same or another workplace, that was safe and appropriate for the Employee to perform.

5 TERM AND DATE OF EFFECT

This Order shall come into effect at 5.00pm on 6 November 2018 and will remain in force until the earliest of the following:

5.1 if the order is revoked - the time specified in the instrument of revocation;

5.2 when a replacement to the Hitachi Construction Machinery (Australia) Pty Ltd Service Enterprise Agreement 2014 is made within the meaning of section 182(1) of the Fair Work Act 2009 (Cth);

5.3 when a workplace determination that covers the Employees comes into operation; or

5.4 when Hitachi, the CFMMEU and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as Australian Manufacturing Workers’’ Union agree that bargaining for an agreement to replace the Hitachi Construction Machinery (Australia) Pty Ltd Service Enterprise Agreement 2014 has ceased.

Note: Contravening this Order

Pursuant to section 675 of the Fair Work Act, a person who engages in conduct which contravenes this Order commits an offence punishable by imprisonment for up to 12 months.

Pursuant to section 421 of the Fair Work Act, a person who contravenes a term of this Order will have contravened a civil remedy provision and may be subject to penalties and injunctions if ordered by a Federal court.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer