Fair Work Commission

Hansen Yuncken Pty Ltd and Ors v Deegan and Ors [2013] FWC 7505 (O’Callaghan SDP, 26 September 2013)

Facts

The application was made after employees working on the new Royal Adelaide Hospital construction site (the nRAH) refused to return to work after expressing concern over various safety issues.

The applicants submitted that the employees had been engaging in frequent unprotected industrial action in the form of stoppages of work, a refusal to work overtime, and reduced work outputs. The applicants further submitted that most of this industrial action was taken on the basis of assertions that it was related to safety concerns which were not based on any reasonable concern about an imminent risk to employee health and safety such that work, or attendance at the nRAH was not possible.

The employees submitted that to the extent they had engaged in industrial action, that action was specifically and legitimately related to reasonable concerns about health and safety risks.

Outcome

The Commission considered the applicants’ detailed OHS policies as well as the Work Health and Safety Act 2012 (SA). The Commission found that no basis for a stoppage of work on the grounds of concerns about imminent serious risks to employee health or safety had been established. The industrial action taken was unprotected. The Commission was satisfied it was appropriate to make an order that industrial action stop and not occur or be organised for a period of 6 months.

Relevance

Employee concern about safety risks must be represent reasonable concerns about imminent risks to employee health or safety. In this case the concern was not reasonable and the issues could have been dealt with in other ways.

AGL Loy Yang Pty Ltd t/a AGL Loy Yang v Construction, Forestry, Mining and Energy Union & Anor [2017] FWC 432 (Roe C, 20 January 2017)

Facts

The application for an order under s.418 was made by AGL after it had been unable to adequately staff shifts leading to the continued shut down of units and consequent loss of income. The power station operated by AGL had four units. AGL had been unable to achieve the minimum staffing levels specified in the Loy Yang Power Enterprise Agreement 2012 to operate all four units for nine of the last 11 shifts. AGL provided detailed evidence of the approaches made to individual employees to try and cover staffing levels after an unprecedented number of employees calling in sick and the refusal of other employees to cover staffing vacancies. AGL also gave evidence of previous average numbers of employees calling in sick.

Outcome

The Commission considered that industrial action was occurring and that it was likely that it would continue. The industrial action in question was a ban or limitation on the performance of overtime contrary to the Agreement or contrary to custom and practice regarding availability for the performance of overtime. It was also the taking of personal/carers leave under the Agreement or under the Fair Work Act in a manner that resulted in a restriction or limitation on the performance of work. Having found that the unprotected industrial action was occurring and probable, the Commission issued an Order that that it was to stop for a period of one month.

Relevance

The Commission must be satisfied that unprotected industrial action is happening, is probable or is being organised. It was not necessary in this matter for the ban or limitation on work to be a total prohibition, it was sufficient that there has been a change to the custom and practice in respect to these matters and that the change had been organised in order to harm AGL .

Victorian WorkCover Authority t/a WorkSafe Victoria v CPSU, the Community and Public Sector Union [2017] FWC 3645 (Wilson C, 10 July 2017)

Facts

The application for an order under s.418 was made by Victorian WorkCover Authority t/a WorkSafe Victoria (WorkSafe) after the CPSU circulated a newsletter on 5 July 2017 to members employed by WorkSafe indicating an intention to take industrial action in several forms. Worksafe argued that the matters indicated in the newsletter should be regarded as industrial action within meaning of s.19 of the Fair Work Act. The CPSU did not contest the newsletter, its terms, or its circulation to member employees. WorkSafe argued that the matters indicated in the newsletter would be contrary to its usual work practices if implemented, and would have a serious and negative impact on WorkSafe's capacity to undertake its work.

Outcome

The Commissioner found that items 2 to 6 of the CPSU newsletter were industrial action, and that each was not protected industrial action. The Commissioner was satisfied that the newsletter advised action to be taken by member employees and encouraged them to pass the newsletter on to non-member employees. The Commissioner was satisfied that the action in the newsletter amounted to industrial action within the meaning of s.19 of the Fair Work Act because if taken, the action would result in the performance of work by an employee in a manner different from that in which it is customarily performed or the adoption of a practice in relation to work, the result of which is a restriction or limitation on or delay in performance of work. Having found that the unprotected industrial action was threatened, impending, probable or was being organised, the Commissioner issued an Order that that it was to stop for a period of one month.

Relevance

The Commissioner must be satisfied that unprotected industrial action is happening, is threatened, impending probable, or is being organised. It was sufficient in this case that the Commissioner was satisfied that the threatened action, if taken, would result in the performance of work in a manner different from that in which it was customarily performed or the adoption of a practice in relation to the work, the result of which is a restriction or limitation on or delay in performance of work.

Hillsbus Co. P/L v Bajwa and Others [2018] FWC 6861 (Cambridge C, 12 November 2018).

Facts

Hillsbus sought an order that unprotected industrial action by employees stop. It alleged that 128 employees engaged in unprotected industrial action as part of bargaining for new enterprise agreement by commencing what was described as a ‘ collective personal leave campaign’. Hillsbus conducts a public transport business relevantly operating as a bus service in New South Wales.

On 7 November 2018, 128 employees claimed personal leave. This ‘campaign’ significantly impacted the operations of Hillsbus, with the result that a substantial number of bus services were delayed, cancelled or otherwise disrupted. Significant numbers of members of the travelling public were adversely impacted as the employer was unable to operate approximately 300 specific services including school bus services, as a result of the extraordinary number of employees absent on personal leave that day.

Outcome

After the Commission issued an urgent notice of listing, a hearing was held on 8 November 2018. There was no appearance by or on behalf of any of the 128 named individual respondents.

The Commission was persuaded to issue Interim Orders and provide for a further hearing. The further hearing provided opportunity for the named respondents to be heard.

The material, submissions and statements provided by the various respondents broadly indicated the reason(s) for their individual personal leave absence on 7 November 2018. The Commission held that whilst this material would likely satisfy the basis which would oblige the employer to make payment in respect of the personal leave absence of that particular individual, it may not satisfy the Commission that the resultant collective personal leave campaign was anything other than unprotected industrial action.

The Commission was satisfied that the meaning of industrial action contained in s.19 of the Fair Work Act had occurred and that the industrial action was not protected. The Commission made an Order that the industrial action stop, not occur and not be organised for the stop period determined to be until 30 November 2018.

Relevance

The Commission found when properly examined the collective personal leave campaign represented covert industrial action involving large number of individuals making claim for personal leave such that there could be no proper basis to establish this event was nothing more than an unusual coincidence.

The determination that the respondents had taken unprotected industrial action meant that, although the individual applications for personal leave would otherwise require the employer to make payment for their absence on 7 November 2018, no payment could be made by the employer to any of the individual respondents in respect to the period during which they participated in unprotected industrial action. This means that the 128 employees will have their personal leave balance debited for their absence , however the employer is prohibited from making any payment in respect of the absence which has been found to have been unprotected industrial action.

[2011] FWAFB 3658 (Harrison SDP, Richards SDP, Williams C, 21 June 2011), [(2011) 210 IR 397];
[2012] FWAFB 3738 (Harrison SDP, Richards SDP, Williams C, 3 May 2012).

Facts

Various actions taken by the union resulted in employees of the company ceasing work. The reasons for the stoppages were principally associated with health and safety issues. The company accepted that the project had generated health and safety concerns however it detailed action it had taken by identifying risks and undertaking remediation work. Work stoppages continued. Numerous meetings were held however the union and employees continued to have concerns about health and safety risks. The company was of the view that adequate steps had been taken to warrant the resumption of normal work.

The company made an application under s.418 for an order to stop the industrial action. The Commisison ruled that it could not deal with the s.418 application to completion within the two day period prescribed in s.420(1) and made an interim order stopping the industrial action.

The union appealed the decision on several grounds including challenging several aspects of the terms of the interim order.

Outcome

In considering the terms of the interim order the Full Bench had concerns about the scope of the order which issued. The order placed obligations on all employees of the company, both those who were members of the union and those who were not. The Full Bench found that the service of the initial application (and notice of the hearing) was only made on the union. This was not in accordance with the rules and no order for substituted service was sought. It seemed that no attempt was made by the company to bring the application to the attention of its employees.

The Full Bench also had concerns about the provisions of clause 6 of the interim order. The clause provided that whenever a person sought to rely on the health and safety exclusion set out in s.19(2)(c), that person had the burden of proving the exemption applied. The Full Bench could not identify a burden of proof provision in the definition of industrial action in s.19 nor in ss.418 and 420.

After consideration the Full Bench held that the public interest was not enlivened and permission to appeal was not granted.

Note: The application made under s.418 was withdrawn by the company and no final order was made. With the withdrawal of the s.418 application the interim order ceased to operate.

Relevance

In drafting a draft order a party must ensure that the scope of the order is appropriate, and that there are no requirements over and above the provisions of the legislation, such as the inclusion of the burden of proof requirement in this matter where there is no such requirement in the Fair Work Act.

Construction, Forestry, Maritime, Mining and Energy Union v DP World Melbourne Limited and Others [2019] FWCFB 6430 (Gostencnik DP, Millhouse DP, Spencer C, 19 September 2019).

Facts

At first instance the Commission made an interim order after determining that an application by DP World for an order that unprotected industrial action stop under s.418 of the Fair Work Act could not be determined within two days. The application was lodged at approximately 4:35pm on 23 July 2019. The matter was listed for hearing at 3:30pm on 24 July 2019. Shortly after the hearing commenced, the CFMMEU applied for the hearing to be adjourned until 2:15pm on 25 July 2019, stating that it had not been in a position to obtain full instructions to enable it to prepare for a hearing and to cross examine witnesses to be called by DP World, and it had not had adequate opportunity to respond to DP World’s materials served earlier that afternoon.

DP World opposed the adjournment and submitted ‘We are 24 hours into the two day period and if … we were to accept his timetable and to be back here at 2.15, there's every prospect that this matter wouldn't be dealt with within the two day timeframe, which would take us to 4.35 tomorrow.’

After an adjournment the Deputy President announced that she was ‘not persuaded, as it currently stands, that to resume the hearing at 2.15 tomorrow would enable the matter to be heard, including at least two witnesses, and you may have a third or more, and determined by 4.35 pm tomorrow.’ The Deputy President adjourned the matter until 2 August and said that as she was ‘unable to determine the application within two days of it being made and, accordingly, pursuant to section 420 of the Act, I consider I am required to make an interim order.’ The Interim Order was issued later that evening (24 July 2019).

The CFMMEU appealed the order. The grounds for appeal included an allegation of a denial of procedural fairness, that the Deputy President erred in failing to attempt to determine the application within two days after it was made, and the proper construction of the phrase ‘within 2 days after the application is mad’ in s.420(1) and consequently ‘within that period’ in s.420(2).

Outcome

The Full Bench granted permission to appeal and first looked at the proper construction of ss.420(1) and (2) of the Fair Work Act.

The Full Bench found that the Deputy President concluded that she could not determine the application within a period of 48 hours after the application was made (that is by 4:35pm on 25 July 2019). In so doing, the Deputy President misconstrued the requirements in ss.420(1) and (2). The requirement in s.420(1) is that as far as practicable, the Commission must determine an application for an order under ss.418 or 419 within ‘2 days’ after the application is made, not ‘48 hours’. Therefore the Deputy President was required, as far as practicable, to determine DP World’s application by midnight on 25 July 2019.

As a precondition to the making of the Interim Order under s.420(2), the Deputy President was required, within the 2 day period, to reach a conclusion that she is unable to determine the application within the period specified in s.420(1). Absent such a conclusion, the Commission is under no duty, and has no power, to make an interim order.

The Full Bench found that the Deputy President erred in her construction of s.420(1) and consequently of s.420(2). There was nothing on the face of the record or in the material in the Appeal Book which suggests that the Deputy President turned her mind to whether she was unable to determine the matter by midnight on 25 July 2019. There is also nothing in that material which would suggest that the Deputy President was unable to do so. In those circumstances, it cannot be said that a different outcome might not have been obtained. The application could have been heard and determined to finality and the CFMMEU could have succeeded in part or in whole in resisting the making of any order under s.418.

The Full Bench held that given the erroneous construction as to the period of time within which the application had to be determined and upon which the Deputy President proceeded to make the Interim Order, the Deputy President was neither required nor empowered to make it.

The appeal was upheld. The Interim Order and the decision to make it were quashed.

Relevance

Whether the Commission is unable to determine an application under, relevantly, s.418 within 48 hours is not the question posed by s.420(2). The requirement in s.420(1) is that as far as practicable, the Commission must determine an application for an order under ss.418 or 419 within ‘2 days’ after the application is made, not ‘48 hours’. Therefore the Deputy President was required, as far as practicable, to determine DP World’s application by midnight on 25 July 2019. The failure to reach the correct conclusion means in the circumstances of this case that the Deputy President was neither obliged nor empowered to make the Interim Order.