s.127(2) application to stop or prevent industrial action

The following decision (now edited) was given in transcript on 11 February 2003.

[1] This matter was before me yesterday at 4.30pm the 10 February 2003. Hydro Aluminium Kurri Kurri Pty Ltd (Hydro) had lodged an application seeking an order under s.127(2) to stop or prevent industrial action.

[2] It was not contested on that occasion that industrial action was happening. That industrial action was described as members or persons eligible to be members of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU), The Australian Workers' Union (AWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) withdrawing their labour and refusing to perform work in accordance with the VAW Kurri Kurri Pty Limited Enterprise Agreement 2001[1] (the EBA) and the Metal, Engineering and Associated Industries Award, 1998[2] (the Metals award).

[3] Section 127 states:

"127 Orders to stop or prevent industrial action

(1) If it appears to the Commission that industrial action is happening, or is threatened, impending or probable, in relation to:

(b) the negotiation or proposed negotiation of an agreement under Division 2 of Part VIB; or

(c) work that is regulated by an award or a certified agreement;

the Commission may, by order, give directions that the industrial action stop or not occur.

(2) The Commission may make such an order of its own motion, or on the application of:

(a) a party to the industrial dispute (if any); or

(b) a person who is directly affected, or who is likely to be directly affected, by the industrial action; or

(c) an organisation of which a person referred to in paragraph (b) is a member.

(3) The Commission must hear and determine an application for an order under this section as quickly as practicable.

(4) The powers conferred on the Commission by subsection (1) are in addition to, and not in derogation of, the powers conferred on the Commission by the rest of this Act.

(5) A person or organisation to whom an order under subsection (1) is expressed to apply must comply with the order.

(6) The Court may, on the application of a person or organisation affected by an order under subsection (1), grant an injunction on such terms as the Court considers appropriate if it is satisfied that another person or organisation:

(a) has engaged in conduct that constitutes a contravention of subsection (5); or

(b) is proposing to engage in conduct that would constitute such a contravention.

(7) If, in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (6).

[4] The agreement between VAW Kurri Kurri Pty Limited (now Hydro by transmission of business) the AWU, AMWU and CEPU is an agreement made under s.170LJ. At Part 1.2, Parties Bound, it states:

* The Australian Workers Union - Newcastle Northern Regions Branch

* Australian Manufacturing Workers Union (Registered as AFMEPKIU)

* Communications, Electrical, Electronics, Energy, Information, Postal, Plumbing and Allied Services Workers Union Of Australia

[5] The agreement at Part 13 outlines the steps to be followed if a grievance arises. Step 5 states:

If agreement cannot be reached the parties will seek assistance through the AIRC for a resolution of the matter.

[6] In this case Step 5 was not complied with.

[7] Section 170MN, for present purposes, states:

comes into operation until its nominal expiry date has passed, an employee, organisation or officer covered by subsection (2) must not, for the purpose of supporting or advancing claims against the employer in respect of the employment of employees whose employment is subject to the agreement or award, engage in industrial action.

(2) For the purposes of subsection (1), the following are covered by this subsection:

(a) any employee whose employment is subject to the agreement or award;

(b) an organisation of employees that is bound by the agreement or award;

(c) an officer or employee of such an organisation acting in that capacity.

(3) If the employee, organisation or officer contravenes subsection (1), the action concerned is not protected action."

[8] The parties certified agreement has a nominal expiry date of 30 June 2004.

[9] During the hearing on 10 February 2003 Mr. Beard, AWU, and Mr. Neilson, AMWU were advised by me, after I had heard their submissions, that I was persuaded to issue the orders sought by the company unless I had a commitment from the unions that the industrial action would cease with a return to work by employees rostered for the 7.00pm shift.

[10] In good faith I, and the company, accepted the union commitment and orders were not issued.

[11] At approximately 7.25pm last night I received a telephone call from Mr. de Flamingh, solicitor for Hydro, advising me that a sufficient number of employees had presented for the 7.00pm shift to enable the company to continue its operation. At approximately 7.30pm I received a further call from Mr. de Flamingh advising me that employees were at a mass meeting and it appeared that industrial action was contemplated. Mr. de Flamingh stated that a union organiser was to visit the site at approximately 8.30pm to talk to the employees.

[12] At approximately 9.30pm I received a telephone call from the senior site delegate advising me that, after a meeting with himself and the employees, the employees had voted to take industrial action in the form of a withdrawal of labour.

[13] I listed the matter for 10.00am today, 11 February 2003.

[14] On 11 February 2003 the appearances were Mr. de Flamingh for Hydro, Mr. Keen for the AWU and Mr. Mohan for the AMWU and on behalf of the CEPU.

[15] After hearing the submissions of Mr. Keen, Mr. Mohan and Mr. de Flamingh, I am satisfied that I have jurisdiction to issue the orders sought. I am persuaded that industrial action is probable in relation to work that is regulated by a certified agreement, which has not reached its nominal expiry date, and an award.

[16] Considering the action taken by the employees of the 7.00am and 7.00pm shifts yesterday, in that they decided to withdraw their labour, and considering the submissions made to me this morning, I am not persuaded that further action on the site will not occur in the immediate future. The action taken by employees on the 7.00pm shift, in my view, was taken in contravention of my directions given to union officials on 10 February 2003.

[17] Given all of the circumstances of the matter before me, I am persuaded to exercise my discretionary powers and issue the order sought.

Printed by authority of the Commonwealth Government Printer