[2010] FWA 847 |
|
DECISION |
Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.
COMMISSIONER CLOGHAN |
PERTH, 8 FEBRUARY 2010 |
Industrial Action.
[1] On 22 January 2010 the following employers made application for an order to stop unprotected industrial action pursuant to s.418 of the Fair Work Act 2009 (“the Act”) (Application C2010/34):
[2] Also on 22 January 2010, United Group Resources Pty Ltd made application for an order to stop unprotected industrial action pursuant to s.418 of the Act (Application C2010/36).
[3] On 23 January 2010, the following employers made application for an order to stop unprotected industrial action pursuant to s.418 of the Act (Application C2010/37):
[4] For the purposes of this decision, I will refer to the above employers collectively as “the Applicants” and individually where necessary.
[5] The orders are sought against:
[6] For the purposes of this decision, I will refer to the above unions collectively as “the Respondent Unions” and individually where necessary.
[7] Pursuant to s.72 of the Building and Construction Industry Improvement Act 2005, the Deputy Australian Building and Construction Commissioner gave notice to make submissions in all three matters: C2010/34; C2010/36 and C2010/37.
[8] The unprotected industrial action related to a resolution by employees at the Woodside Pluto LNG Project site, to refuse to attend work on the morning of 22 January 2010 until further notice. A decision whether to return to work is to be made at a meeting scheduled for 6:30 am on Monday, 25 January 2010.
[9] With few exceptions, a significant majority of employees did not attend work on Friday and Saturday, 22 and 23 January 2010. The total workforce is approximately 3,800 employees and it was estimated that approximately 1,800 had refused to attend work.
[10] The application was heard in Perth on Saturday, 23 January 2010. I issued an interim Order on the same day with reasons to follow.
BACKGROUND
[11] The Applicants are constitutional corporations within the meaning of the Act and are contractors who are contracted by Foster Wheeler Worley Parsons (FWWP) to construct various parts of the Woodside Pluto LNG Project.
[12] The Woodside Pluto LNG project commenced in or around July 2007. The Project is the biggest construction project in the North West of Western Australia and will eventually become the LNG processing operation of Woodside Burrup Pty Ltd on the Burrup Peninsula. When completed, the Project will process gas from the Pluto and Xena gas fields which are located in the Carnarvon Basin about 190 Kilometres north-west of Karratha, Western Australia.
[13] The vast majority of the employees are employed on a fly in fly out basis. As a result of the nature of this employment arrangement, in most cases, the employees are provided with accommodation. It is important to note that the accommodation is not provided by the Applicant employers but by FWWP.
[14] For those employees who are provided with accommodation, the accommodation is in the form of various camps in or on the outskirts of the township of Karratha.
[15] FWWP has made a decision to introduce the concept of “motelling” into the camp known as Gap Ridge Village.
[16] As the name suggests, “motelling” describes where employees in Gap Ridge Village will not have designated accommodation but will be assigned a “donga” for the duration of a roster cycle. At the end of the cycle, the employee places any personal items in storage and retrieves them when assigned a new donga at the beginning of the next roster cycle.
[17] The purpose of “motelling”, it seems to me from the Project’s perspective is to optimise occupancy of the entire stock of accommodation and enable a greater number of employees to be employed on the Project without requiring additional accommodation. This last issue is significant, in view of the Applicants, as there is a shortage of accommodation in the area.
[18] For the employees, there is the obvious “downside” of not coming back to the same accommodation, immediate environs and presumably neighbours.
Should the Applications be heard together?
[19] Early in proceedings, the Applicant’s Representative in applications C2010/34 and C2010/37, sought that these applications and C2010/36 be heard conjointly 1.
[20] The Respondent Unions had no objection to this course of action and the hearing proceeded on this basis 2.
[21] As a consequence, the evidence given was evidence for the purpose of all applications.
[22] It was agreed that the “cause” (my emphasis) of the industrial action was identical for all industrial action. Further, the term industrial action was used collectively to describe similar action taken by employees of the Applicants 3.
ISSUES
[23] The following issues were raised during the hearing; they are not intended to reflect all matters raised but are significant for the purposes of this decision.
“Motelling”
[24] From the applications made, submissions received, evidence and exhibits, it appears that the cause of the unprotected industrial action is the issue of “motelling”.
[25] All three applications referred to “motelling” as “grounds” upon which the applications were made to seek orders from Fair Work Australia (FWA).
[26] All Applicants referred to motelling in their submissions.
[27] For all the evidence given regarding the issue of “motelling”, the most pertinent, apart from the general dissatisfaction with the arrangements 4, was the comments made by Mr Adi Kadir in cross examination by Mr Nicholas for the CFMEU. The cross examination went as follows:
“…have you got any idea why people haven’t been at work? --- From my understanding, from the feedback we’ve received, a letter went out to employees at the Gap Ridge Camp.” 5
[28] The letter referred to by Mr Kadir is dated 21 January 2010, and was from FWWP and requested employees to acknowledge new camp rules as a result of motelling. 6
[29] However, sometimes things are not always as they seem, and Mr Kadir continues in cross examination:
“So your assessment, people are not at work because they’re unhappy about that issue”. 7
[30] Mr Kadir responds:
“That could be one issue, yes, and maybe the – and the letter itself being distributed to the employees”. 8
[31] The cross examination continues:
“You said that the way it was distributed to employees – what do you mean by that?” 9
[32] Mr Kadir responds:
“It’d just be a bit of a shock to come home and see a letter, that’s all, in their room, from my understanding”. 10
[33] From the evidence given by Mr Kadir and others in this hearing, it seems that while there is general dissatisfaction with motelling, the manner in which it has been introduced has not assisted the proposal. There is uncertainty surrounding employees in terms of ongoing accommodation and employment. I make these observations obviously without the benefit of any submission from FWWP and only in the context of material presented at this hearing.
Industrial Action
[34] The CFMEU accepted that industrial action “appeared” to have occurred on Friday, 22 January 2010 and was equivocal on whether it was occurring on Saturday, 23 January 2010 11.
[35] The AMWU conceded that industrial action had occurred on Friday, 22 January 2010 and had no instructions on what was occurring on Saturday, 23 January 2010 12.
[36] The CEPU was “aware” of industrial action on Friday, 22 January 2010 but was not “certain” whether it was occurring on the day of the hearing 13.
[37] The Applicants, through witnesses Reid, Kadir, Kaskow and Flight, provided compelling evidence, either directly or indirectly, or both, that some, but not all employees of the Applicants, had failed to attend their normal work at some time commencing early on Friday, 22 January 2010.
[38] Further, on Saturday, 23 January 2010, the day of the hearing, the normal customary practice of working ordinary hours and overtime was not occurring.
[39] Having reached the conclusion that industrial action had occurred, is occurring and was to continue, it is necessary to determine whether the industrial action is protected industrial action for the purposes of the Act.
Protected Industrial Action
[40] To assist in the proceedings, Mr Nicholas, on behalf of the Respondent Unions, agreed that the industrial action was not protected industrial action and the Tribunal should proceed on this basis 14.
[41] This acknowledgement by the Respondent Union, apart from being a recognition of reality and expediting the proceedings, also enables s.418 to be enlivened.
[42] Section 418(1) provides that:
“(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;
(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.”
Service of Applications C2010/34, C2010/36 and C2010/37
[43] Application C2010/34 was filed in FWA, Western Australia Office at 4:30 pm on 22 January 2010. Application C2010/36 was filed in the same office at 5:30 pm on 22 January 2010. Application C2010/37 was filed also in the same office at 11:00 am on 23 January 2010.
[44] At the commencement of proceedings, the Respondent Unions submitted that they had in their possession some applications but not all. Further, if they had received the application, it was at short notice – in some cases, on arriving at the Tribunal 15.
[45] The issue of late notice or no notice of service on the Respondent Union was also applicable to the intervention of Mr Harben pursuant to s.72 of the Building Construction Industry Improvement Act 2005.
[46] The CFMEU and CEPU Representatives were aware that application C2010/34 had been received by their respective union offices, but could not say if applications C2010/36 and C2010/37 had been received. With respect to the AMWU, its representative could not say that the Union had received a copy of any of the applications.
[47] In these circumstances, I adjourned proceedings to enable the Respondent Unions to examine the applications, and as I advised, they were essentially similar, and in some cases, the language identical.
[48] While the service of the applications were not ideal, it occurred in circumstances which were not the “norm”.
[49] The Respondent Unions sought to have the applications adjourned on the grounds that they had not been served properly – a proposition, I should say, rejected by the Applicants.
[50] In my view, to agree to an adjournment on these grounds, would frustrate not only the intent of the Act that these applications be determined within two (2) days, but also to deny relief to persons where unprotected industrial action is occurring.
[51] As I stated during the hearing, FWA is required by the Act to ensure that these applications must be determined within two (2) days; which the Tribunal had done. In doing so, especially when the industrial action commences on a Friday and continues over the weekend, it is to be expected that the customary service arrangements fall short of what happens normally. It is in these circumstances that the Tribunal has the jurisdiction to provide relief with compliance with the Rules, and to the extent there was not compliance with the service obligations, in accordance with Rule 4 of the Fair Work Australia Rules 2009, that relief is provided.
[52] For these reasons, I did not agree to the adjournment but would say that the sub-optimum service requirements were, in part, a reason which led me to making an interim Order. In the making of an interim Order, the issue of service, as put to me by the Applicant, falls away.
Should the Union Respondents be subject to the Order?
[53] Early in the proceedings, Mr Edmonds put the view:
“…there’s no suggestion that the unions were in any way, shape or form involved in that meeting, or that any officials of the unions were involved in those particular meetings” 16 (my emphasis).
[54] The position put by Mr Edmonds, which was adopted by the CFMEU and CEPU, seemed, at least, for two purposes. Firstly, to question why the Union Respondents should be bound by any order should one be issued by the Tribunal, and secondly, to assist in their submissions concerning whether the applications had been served properly or not.
[55] The unprotected industrial action which was now occurring on the Woodside LNG Pluto Project concerning motelling, was not without history.
[56] On 1 December 2009, employees at the Woodside LNG Pluto Project site commenced industrial action by failing to attend work which continued for a period of 48 hours.
[57] On 2 December 2009, McCarthy DP held a hearing into Application C2009/11200 concerning the industrial action outlined in paragraph [56] above.
[58] McCarthy DP made an order on transcript pursuant to s.418 of the Act as follows:
“…it appears to me that industrial action is occurring, that the industrial action is not protected industrial action and that it involves members of the two unions who are here today. I consider that the employees who are taking that industrial action have had the opportunity to participate in these proceedings. The reason I form that view is that it is evidence through involvement by those two unions in meetings with employees, it’s evidenced by those two unions having exercised their rights of entry to the site and it’s evidenced through the evidence of Ms Jolley of the interaction by her as the human resources person for the company with the union concerning employees on the site.” 17
[59] Similarly on 4 December 2010, McCarthy DP heard matter C2009/11217 which related to the same industrial action in paragraph [56] above but with different employers at the Project site.
[60] In his decision, dated 9 December 2009, McCarthy DP states:
“A similar application involving another contractor on the Project was dealt with by me on 2 December 2009. In that matter I found that industrial action was occurring. I also found that industrial action was probable. As a consequence I issued an Order ("the UGR Order") that industrial action stop, not occur and not be organised. The term of UGR Order is until 18 January 2010.” 18
And, goes on to say regarding the CFMEU, AMWU and CEPU:
“They [the Unions] say that the environment and the mood of employees has changed since the issuance of the UGR Order. They argue that the industrial action itself has taken the heat out of the situation. The Unions say that there have been and have planned further discussions regarding motelling, inferring that those discussions may be productive and it should not be presumed that they won’t.” 19
[61] After hearing evidence, McCarthy DP was satisfied that:
“1. …
2. …
3 …
4. the CFMEU, though its official McDonald, was involved in the organising of the industrial action that did occur;
5. the AMWU and the CEPU may not have been as involved as the CFMEU in the organising of the industrial action that did occur but those two Unions also did not dissuade their members from the taking of industrial action;
6. the general mood and attitude of employees towards motelling last week was one of anger and that was a major influence on employees taking industrial action; and
7. the CFMEU, though its official McDonald, encouraged the taking of industrial action.” 20
[62] and:
“Finally I note that I have taken particular regard to the assessment of the Unions that the industrial environment has changed on the Project that that industrial action is not probable, notwithstanding that the underlying issues still exist. Whilst the submissions by the Unions were not expressed as undertakings I do regard them as undertakings that the Unions involved will make every endeavour to prevent any further industrial action at the Project regarding motelling.” 21 (my emphasis)
[63] The unions who orders were sought to bound in application C2009/11200 were the CFMEU and AMWU. The unions in application C2009/11217 were the CFMEU, AMWU and CEPU; the same three (3) as in these proceedings.
[64] In application C2009/11217, it is true to say, as Mr Edmonds did, that the persons against whom the orders sought in this hearing differed, they included: Mr J McDonald, Assistant Secretary, CFMEU; Mr B Upton, Organiser, CFMEU; and Mr D Simpson, Organiser, CEPU; I don’t think this difference is material for the purpose of determining these applications.
[65] In these circumstances, to suggest that it is appropriate to ignore what has been determined by FWA less than two months ago concerning the same site, the same primary issue and involving employees of the same unions, is plainly wrong. Evidence was led during the hearing and uncontested that the cause of the unprotected industrial action was related to “motelling” – the industrial action was occurring on the same site and involving the same employees covered by the same unions. The fact that there were no union officials in attendance at the most recent meetings, cannot justify the position that the Respondent Unions are now divorced from any action by their members in relation to the issue.
[66] If the recent history of union involvement in this issue and FWA hearings is not sufficient for the Respondent Unions to be bound by orders, evidence was given that:
[67] Whether, or not, the Respondent Unions are trying to distance themselves from the unprotected industrial action of the employees at the site, it is clear that they have had significant involvement in the past and continue to be involved, albeit in a different form, on this occasion.
[68] During the proceedings, Mr Nicholas advised that the CFMEU and the other Respondent Unions had made an application to FWA for conciliation “with the joint venture who runs the accommodation” 27. While not wanting to misuse this attempt by the Respondent Unions to resolve the matter, it demonstrates again, how they are inextricably linked to the “issue” of the unprotected industrial action.
[69] Finally, although it can be a burden sometimes, unions had a special place (among others) in consultations on the Act and for FWA to have strong powers relating to the settlement of disputes (Explanatory Memoranda pp1xxvi – 1xxx). Consequently, it would be inappropriate, in these matters, to exclude the Respondent Unions from consideration in orders simply on the basis that officials had not attended the meetings which led to this particular unprotected industrial action.
[70] For the above reasons, I considered it appropriate that the Respondent Unions be bound by the orders which were issued.
CONCLUSION
[71] Section 418(1) requires that FWA must order that unprotected industrial action stop, not occur or not be organised for a specific period.
[72] Section 418(2) provides that FWA may make an order on its own initiative or upon application by a person affected by the industrial action or an organisation to which that person belongs.
[73] Importantly, under s.418(1), FWA is alerted to s.420 which provides that, as far as practice able, FWA must determine an application under s.418 within two (2) days. Further, if FWA is unable to determine the application within that period, FWA must, unless it is contrary to the public interest, make an interim order that the unprotected industrial action stop, not occur or not be organised as the case may be.
[74] Having heard submissions from all parties and evidence, it is indisputable that industrial action commenced on Friday, 22 January 2010 and would continue to, at least, until early Monday, 25 January 2010. Further, as was conceded by the Respondent Union, the industrial action was unprotected.
[75] It was put to me that where unprotected industrial action is taking place, that, of itself, is sufficient for FWA to issue an order that it cease, not occur or not be organised. While that view may be correct, and appropriate in some case, I think the better course generally is to hear and receive as much evidence as is practical in the circumstances, to ensure a “fair go” for all the parties. Fair Work Australia cannot “sit on its hands” until all parties are comfortable with “normal service” of a hearing. However, the requirement to act speedily under the Act should not, in my view, lead to the view that the shortest route is sufficient. While the Tribunal in performing its function is to be quick, informal and avoids unnecessary technicalities, it must be fair (s.577).
[76] In these proceedings, the Respondent Unions were made aware of the “grounds” on which the applications for the orders were made and given the opportunity, and took the opportunity, to test that evidence. While the Respondent Unions would have preferred more time and information to test the evidence given by the Applicant’s witnesses, the Act provides for swift proceedings and I did not detect that the Applicants misused or abused this expedited process.
[77] It seems to me, that the Act provides a balance, where, at times, an expedited process may lead to sub-optimum processes or lack of proper instructions or inadequate preparation, with FWA having the opportunity to make interim orders until the matters are finally determined and the parties given more time.
[78] Accordingly, for the reasons outlined above, the interim Orders pursuant to s.420(2) of the Act were issued on 23 January 2010.
[79] In the case of these applications, I do consider it contrary to the public interest to make the interim Orders.
COMMISSIONER
Appearances:
Mr K Pettit, on behalf of CBI Constructors Pty Ltd; Decmil Australia Pty Ltd; Freo Group Ltd; Mammoet Australia Pty Ltd; PCH Group Ltd; RCR Construction and Maintenance; Positron Trident Pty Ltd; and Thiess Kentz Pty Ltd
Ms K Reid, on behalf of United Group Resources Pty Ltd
Mr S Harben, on behalf of the Australian Building & Construction Commission
Mr J Nicholas, on behalf of the Construction, Forestry, Mining & Energy Union (CFMEU)
Mr L Edmonds, on behalf of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
Ms N Ireland, on behalf of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)Hearing details:
2010.
Perth:
23 January.
1 PN83
2 PN85
3 PN83
4 PN812
5 PN663
6 PN669
7 PN670
8 PN670
9 PN670
10 PN672
11 PN172
12 PN179
13 PN183
14 PN89
15 PN11-17
16 PN33
17 Transcript of Proceedings 2 December 2009 21743-1 PN311
18 2009 FWA1631 PN7
19 2009 FWA 1631 PN11
20 2009 FWA 1631 PN14
21 2009 FWA 1631 PN24
22 Exhibit A2
23 Exhibit A3
24 PN618
25 PN661
26 PN890
27 PN273
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