[2010] FWA 8674

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Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.

Asurco Contracting Pty Ltd
Construction, Forestry, Mining and Energy Union



[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:

[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:

[6] It is common ground that, before the hearing on 9 November 2010, the CFMEU amended this notice in the following terms:

[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:

[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:

[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:

[18] In University of South Australia v National Tertiary Education Industrial Union 2 I adopted the following position:

[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.


[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.



T Earls representing Asurco Contracting Pty Ltd.

M O’Malley for the Construction, Forestry, Mining and Energy Union.

Hearing details:



November 9.

 1   [2010] FWAFB 526

 2   [2009] FWA 1304

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