Fair Work Act 2009_

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

Construction, Forestry, Mining and Energy Union; Mr Gregory Hardy

Application for an order to stop etc. industrial action.

[1] At approximately 6pm on Friday 13 January 2017 AGL Loy Yang Pty Ltd (AGL) applied for an order under Section 418 of the Fair Work Act 2009 (the Act) that industrial action by employees stop. AGL alleged that as a result of the failure to be able to get sufficient employees to work overtime it had been unable to return Unit 1 to service after it had been shut down on 12 January 2017 due to a fault. AGL also said that the problem with getting sufficient employees to work overtime had continued since 13 January 2017 resulting in continuing failure to return Unit 1 to service and some periods of closure of Unit 2. There are four Units at the Loy Yang A plant operated by the company. AGL stated that the loss of income to the company due to the reduction in generating capacity was significant.

[2] AGL requested an urgent hearing. Given that the application had been made after the close of normal business hours on Friday I considered that the earliest a hearing could be listed whilst providing the CFMEU with an opportunity to participate effectively was on Sunday 15 January 2017. The matter was listed for 2.30pm Sunday 15 January 2017. AGL requested an order for substituted service. I considered that service on Mr Hardy and Mr Dyke, the key local representatives of the CFMEU was sufficient to ensure that the CFMEU and its officials and delegates were aware of the proceedings. However, I rejected AGL's application that this should be sufficient service in respect to employees who are members of the CFMEU at Loy Yang. I consider that AGL is in a better position to communicate with its employees and that the employees should be properly informed if they are at risk of having orders imposed which directly affect them.

[3] Section 420 of the Act requires me to make an interim order if I cannot make a decision about the application within two days. Two days had almost expired when I had heard the evidence and submissions. This necessitated only a short period for consideration of the matter. I decided that I was in a position to determine the matter and that an ex tempore decision was the appropriate course of action. At the conclusion of the hearing I issued the following decision (slightly edited) on transcript.

[4] I have taken into account the written and oral submissions for AGL and the oral submissions for the CFMEU.

[5] I am satisfied that the application was served on the CFMEU and on Mr Hardy and Mr Dyke in particular. There was no evidence about the extent to which the application was served on employees who are members of the CFMEU.

[6] I have also accepted the evidence of Mr James and Ms Lehane. The CFMEU did not seek to cross examine the witnesses.

[7] I am satisfied that Mr Hardy was aware of the proceedings but chose not to attend. I am satisfied that Mr Hardy has been the lead negotiator in the bargaining for the enterprise agreement for the CFMEU. I am satisfied that the level of unionisation amongst the station operators is high. I am satisfied that Mr Hardy exercises leadership within this group. I am also satisfied that unless Mr Hardy was acting contrary to instructions or policy the actions of Mr Hardy in respect to industrial matters at Loy Yang are the actions of the CFMEU.

[8] I reject the submission of the CFMEU in this respect. If I am satisfied that Mr Hardy is in fact organising the working of overtime differently from custom and practice then I would be satisfied that the action is being organised by the CFMEU.

[9] I need to be satisfied that industrial action is occurring - specifically that there is a ban on the performance of overtime contrary to Clause 15 and Clause 73 of the Loy Yang Power Enterprise Agreement 2012 or contrary to custom and practice regarding the performance of overtime.

[10] The relevant provisions of the Agreement are Clause 15 and Clause 73. Clause 73 specifically applies to station operations employees. The concept of reasonable overtime has to be considered in conjunction with that clause.

[11] In my view there is inadequate evidence to establish that any employee has unreasonably refused to work overtime. It may well be that the actions of employees who have been asked to work overtime and have declined to do so has been in accordance with Clause 15 - that is, their reasons for refusal fit within the criteria specified. There is no evidence of the nature of the conversations held with the employees and the extent to which reasons for refusal were requested and tested. In fact Mr James gives evidence that he has been told that in many cases no reason was provided for refusal (paragraph 74). There is no evidence about the extent to which reasons were requested or recorded or challenged. This is understandable given that Clause 73.2 provides for employees to be contacted in a specific order and "where the first person declines the overtime the offer will be made to the personnel in order of the lowest overtime hours on the list." There is no evidence that it is normal practice to request reasons or to contest reasons.

[12] I accept the evidence of Mr James that on only three occasions in recent years has the system failed to achieve minimum staffing levels necessary to keep operating units in operation. AGL argues that this is sufficient to establish that custom and practice regarding the performance of overtime means that sufficient employees agree to do the overtime. The question then is, is the union and Mr Hardy in particular organising action whereby employees are declining overtime such that there are insufficient employees to keep the units going or to restart out of operation units.

[13] The CFMEU argues that Mr James concedes that quite often it is difficult to manage to get enough employees to work overtime to cover shifts - manning has been very tight (paragraph 76) and sometimes people have to be called in off annual leave or long service leave. It is a short step from this to there being some rare occasions when the manning might be insufficient. The CFMEU argue that there is no evidence that this is due to action organised by the CFMEU or Mr Hardy.

[14] I agree with AGL that some inference should be drawn from the failure of Mr Hardy to attend the proceedings and his failure to bring evidence about the alleged overtime ban or abnormal work. I agree that makes it more likely that I should conclude that the abnormal pattern is in fact organised. I accept the evidence that there were difficulties getting shifts filled in July 2016 and that this was during a difficult phase of the enterprise agreement negotiations and the current difficulty also coincides with the decision to terminate the current agreement. However, in July 2016 it was an interim order that was made and there was no finding about the evidence concerning failure to work overtime as normal.

[15] This is a situation different from the MUA case - in that case there was detailed evidence about what in fact was being done during working time and inferences about the cause of the changed patterns could be drawn. In this case overtime is not compulsory, some employees have agreed to requests to work overtime during the period since 12 January 2017. There is good reason to be suspicious that the difficulties AGL has in being able to get sufficient workers to work overtime is a response to the decision to terminate the agreement. However, the fact that Mr Hardy attended a meeting at 9am about maintenance rosters and that at some time much later in the day there was a plant failure which it is not alleged was due to sabotage or industrial action and this resulted in shut down of a unit and this is turn resulted in a need for overtime and then there were difficulties filling the necessary positions does not establish a clear link between the overtime issue and Mr Hardy. The evidence of Mr James and my own understanding from his participation in the Section 240 bargaining conciliation is that Mr Hardy is often on site and that he regularly attends meetings presumably including those he might not be invited to.

[16] Mr James says that AGL has been unable to fulfil the required shifts and that employees have refused in sufficient numbers to disrupt operations. AGL suggest that this is sufficient. Mr James reports at paragraph 73 the details of what he knows about the process of trying to fill the positions. I am not satisfied from that description that clear directions have been given to employees to work overtime. Rather I am satisfied that employees have been contacted consistent with Clause 73.2 of the Agreement.

[17] Given the operation of Clause 73.2 I am satisfied that station operations employees effectively are able to refuse overtime and then the next person on the list is asked. In the absence of evidence about how directions were given and the reasons given for refusal and that the number of requests and refusals was out of the normal, I am not able to be satisfied that the actions of the employees has been contrary to custom and practice regarding the performance of overtime. The outcome has been out of the ordinary but the evidence is not strong enough to draw a clear inference about the cause.

[18] Given that I am not satisfied that industrial action is in fact happening or is threatened, impending or probable or is being organised I cannot make the order sought.

[19] That said the decision in this matter has been a fine balance. Should the problem continue or should further evidence emerge the decision might be quite different.

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