Fair Work Act 2009

s.418 - Industrial action

Castlemaine Perkins Pty Limited T/A Castlemaine Perkins

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

[1] Castlemaine Perkins Pty Ltd and United Voice and its members, are in the process of negotiating an enterprise agreement. Members have been taking industrial action in various forms in connection with the negotiations. On 8 June 2018 Commissioner Hunt issued an interim order under s. 229 of the Fair Work Act 2009 (the Act) in relation to certain conduct engaged in by United Voice and its members in connection with bargaining (the interim bargaining order).[1] The interim order was issued following an application by Castlemaine Perkins Pty Ltd.

[2] In summary, the interim bargaining order restrains United Voice and its members from engaging in conduct preventing, hindering or interfering with free access and egress to the Castlemaine Perkins Pty Ltd site and required notification to employees by United Voice that the interim bargaining order had been made and that the Union was restrained from engaging in such conduct until the application for bargaining orders is finally determined. The interim bargaining order did not prevent United Voice and its members from engaging in other forms of industrial action.

[3] On 5 July 2018, United Voice notified Castlemaine Perkins Pty Ltd of further industrial action in the form of stoppages to commence at 6.30 pm on Wednesday 11 July 2018. At 9.22 am on Friday 6 July 2018 Castlemaine Perkins Pty Ltd made an application to the Fair Work Commission (the Commission) for an order under s. 418 of the Act seeking that industrial action by employees stop.[2] Castlemaine Perkins Pty Ltd seeks the order under s. 418 on the basis of alleged noncompliance by United Voice with the interim bargaining order.

[4] By virtue of s. 413(5) of the Act, bargaining representatives and employees must not contravene any industrial orders that apply to them and which relate to industrial action in relation to the agreement or a matter that arose during bargaining. Any such contravention will effectively render industrial action unprotected. Accordingly, if bargaining representatives and employees of Castlemaine Perkins Pty Ltd have breached the interim bargaining order, industrial action will not be protected.

[5] Section 420 of the Act requires that as far as practicable, the Commission must determine an application for an order to stop industrial action under s. 418 within 2 days after the application is made. Castlemaine Perkins Pty Ltd sought a hearing of the s. 418 application after 10.00 am on Monday 9 July 2018. By notice issued at 2.14 pm on Friday 6 July 2018 the s. 418 application was listed for hearing before me, commencing at 4.00 pm on Monday 9 July 2018.

[6] At 4.47 pm on Friday 6 July 2018, United Voice made an application to the Commission under s. 603 of the Act seeking a variation to the interim bargaining order by extending the time for compliance. United Voice also sought that the s. 603 application be heard by me at the same time as the s.418 application - at 4.00 pm on Monday 9 July 2018.

[7] A Mention/Directions hearing was conducted by telephone at approximately 5.30 pm of Friday 6 July 2018 in relation to both the s. 418 application and the s. 603 application. Both parties sought and were granted permission under s. 596 of the Act to be legally represented. Castlemaine Perkins, through its Counsel Mr Follett, contended that it was not in a position to respond to the s. 603 application at the hearing scheduled for Monday 9 July 2018 and that it would be unfair for the Commission to require it do so.

[8] United Voice, through its Counsel Mr Friend, accepted that it could not be submitted that United Voice had fully complied with the interim bargaining orders. Mr Friend further accepted that if the Commission was satisfied that it would be unfair that Castlemaine Perkins Pty Ltd be required to deal with the s. 603 application at the hearing on Monday 9 July 2018, the Act requires the Commission to issue an interim order under s. 420 of the Act, pending the final hearing and determination of that application. Mr Friend also maintained that it would be preferable for the s. 603 application to be dealt with at the same time as the s. 418 application.

[9] In all of the circumstances I am satisfied that it would be unfair to require Castlemaine Perkins Pty Ltd to deal with the s. 603 application made by United Voice at the hearing scheduled for 4.00 pm on Monday 9 July 2018 for the purposes of the s. 418 application. A relevant consideration in reaching this conclusion is that United Voice has been on notice that Castlemaine Perkins Pty Ltd alleged noncompliance with the interim bargaining order for some time and made an identical application under s. 603 of the Act to vary the interim bargaining order on 22 June 2018. The matter was listed for hearing and determination before Commissioner Hunt on 29 June 2018. The NUW discontinued that application on 27 June 2018.

[10] I am also satisfied that as sought by United Voice, both the s. 418 and the s. 603 application should be heard together on the basis that the outcome of one application will essentially determine the outcome of the other application. If the s. 603 application made by United Voice is granted, there will be no basis for making an order under s. 418 of the Act.

[11] Accordingly both applications will be heard at sittings commencing at 2.00 pm on Thursday 12 July 2018. A notice of listing will issue with this Decision. As required by s. 420(2) of the Act an interim Order must be issued and remain in place until the s. 418 application is heard and determined. As previously noted the outcome of the s. 418 application is linked to that of the s. 603 application.

[12] In making the interim order I am satisfied as required by s. 420(3) of the Act that it would not be contrary to the public interest to make in interim order. In this regard it is in the public interest that orders of the Commission are observed and that efficacy is given to provisions of the Act directed at ensuring such observance. An interim Order under s. 420 of the Act will issue with this Decision.

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