2018 FWC 1000

The attached document replaces the document previously issued with the above code on 15 February 2018.

[2018] FWC 1000

Fair Work Act 2009

s.425 - Application to suspend protected industrial action, cooling off

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

Application for order to suspend protected industrial action - cooling off.

[1] On 13 February 2018, Paper Australia Pty Ltd (Paper Australia) applied pursuant to s.425 of the Fair Work Act 2009 (the Act) for an order to suspend protected industrial action currently being engaged in by employees at its Preston Factory who are members of the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU).

[2] The matter was heard in Melbourne on 14 February 2018. Paper Australia was represented by Rigby Cooke Lawyers after permission was granted under section 596 of the Act. The AMWU appeared on its own behalf. Mr Rodney Beales gave evidence for Paper Australia and Mr Dean Griffiths gave evidence for the AMWU.

[3] The application initially sought a 'cooling off period' of two weeks. In the hearing, Paper Australia sought to amend its application to seek a cooling off period of four weeks. The AMWU opposed the amendment but indicated that no prejudice to its position would arise. Having regard to the submissions of the parties, I will allow the amendment under section 586 of the Act.

[4] The relevant history of the matter is as follows:

• The parties are covered by the Paper Australia Pty Ltd (Preston Factory) Enterprise Agreement 2014 (2014 Agreement), which nominally expired on 7 March 2017.

• Relevantly, the 2014 Agreement covers employees at Paper Australia's Preston Factory at 50 Raglan St, Preston, Victoria.

• Negotiations for a replacement agreement commenced on 29 March 2017.

• 12 bargaining meetings were held between the parties and significant progress was been made.

• The last bargaining meeting was held on 8 January 2018. At that time, only three substantive matters (wage increases, rostered days off and grandfathering provisions) remained in dispute.

• Prior to 16 January 2018, some protected industrial action in the form of bans was taking place.

• On 16 January 2018, employees commenced indefinite strike action.

• On or about 21 January 2018, the AMWU communicated its current position to Paper Australia and left open the prospect of further discussions. Paper Australia replied to the effect that it would not negotiate "while the stoppages are on foot".

• On 25 January 2018, Paper Australia applied to the Commission to assist in dealing with the dispute under section 240 of the Act. A conference was held on 8 February 2018 before Deputy President Colman. The conference did not result in a resumption of bargaining.

[5] There is no dispute that Paper Australia is a bargaining representative for the replacement agreement and that the indefinite strike action being taken by members of the AMWU is protected industrial action under the Act and that is currently being engaged in.

[6] Section 425 of the Act requires the Commission to suspend protected industrial action for a period if satisfied that suspension is appropriate, having regard to:

• whether the suspension would be beneficial to the bargaining representatives for the agreement because it would assist in resolving the matters at issue;

• the duration of the protected industrial action;

• whether the suspension would be contrary to the public interest or inconsistent with the objects of this Act;

• any other matters that FWA considers relevant.

Will the suspension be beneficial to the bargaining representatives and assist in resolving matters at issue?

[7] Paper Australia submitted that a suspension of industrial action would be beneficial because it would enable it to focus on reaching agreement with the AMWU rather than on managing efforts to mitigate the effect of the action. It pointed to the impact of the industrial action on its ability to meet customer demands. It also said that a suspension would prevent the parties from becoming more entrenched in their positions.

[8] The AMWU opposed the application and submitted that rather than assisting to resolve the dispute, a suspension of industrial action would make bargaining more difficult, noting a loss of trust between the parties. It said that Paper Australia's refusal to bargain while protected industrial action was being taken should not be rewarded. I accept that there is some force to this submission although the precise terms of Paper Australia's refusal are not apparent on the material before me.

[9] The AMWU also disagreed that protected industrial action was a distraction to Paper Australia or that the parties had become so entrenched that suspension was appropriate in the circumstances. That submission must be seen in light of Mr Griffin's evidence that it was difficult to see a resolution to the dispute at this stage while the party's positions were both so entrenched.

[10] The nature of bargaining for an enterprise agreement is often positional and involves the adoption of strategies to support claims made or concessions extracted. There is no doubt that Paper Australia could achieve what it seeks in this application - that is, a resumption in bargaining - by abandoning its current position. The AMWU could do the same. Unfortunately, neither has indicated a willingness to do so. In the circumstances, it is hard to see how the positions of the parties could be more entrenched although in my view, the impasse is more about who concedes first than the substantive matters in dispute. Both parties submitted that they wanted bargaining to resume. In my view, the strategies each has adopted are preventing necessary dialogue that would allow progress to be made.

[11] In the circumstances, I am satisfied that a suspension of protected industrial action would be beneficial to the bargaining representatives for the agreement because it will assist in resolving the dispute by allowing revised positions to be shared, discussed and considered for the first time in more than five weeks.

[12] There is no dispute that the protected industrial action currently being engaged in has been ongoing for more than four weeks without interruption, including 21 working days.

[13] Mr Griffin gave evidence that in his three years as an AMWU Organiser, he had not experienced a strike of this duration. In my view, the duration of protected industrial action is significant and is likely to be affecting all of those involved, including by the imposition of financial pressure.

[14] On the material before me, there does not appear to be any end to the industrial action in sight. The parties are resolute in their positions and trust between them is low. The AMWU has indicated that the strike will continue indefinitely and Paper Australia is not prepared to negotiate while the stoppage is 'on foot'.

[15] The duration of protected industrial action in this matter weighs in favour of an order to suspend the industrial action for a 'cooling off' period.

[16] Paper Australia submitted that the public interest had a limited bearing on this matter, having regard to the separate requirement to consider the objects of the Act. It nevertheless submitted that protected industrial action has been more than a mere inconvenience to it, and that considerable economic harm has flowed both to the employer and employees as a result of the action.

[17] The AMWU submitted that inconvenience to Paper Australia was not a sufficient basis for a suspension of protected industrial action, referring to relevant extracts from the Explanatory Memorandum to the Fair Work Bill 2008.[1] It noted the general public policy in favour of the right to strike and the Act's role in giving effect to Australia's international obligations including in relation to the right to strike which should not be taken away lightly.[2]

[18] Section 3 and section 171 of the Act set out the relevant objects of the Act, including the overarching object in section 3 to provide a balanced framework for cooperative and productive workplace relations. Within this context, the Act seeks to:

• provide a set of fair and flexible laws, promote productivity and economic growth and take into account Australia's international labour obligations (object 3(a));

• enable fairness and representation at work (object 3(e));

• provide accessible and effective procedures to resolve grievances and disputes (object 3(e)); and

• achieve productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action (object 3(f)).

[19] Section 171 sets out the objects of Part 2-4 of the Act, dealing with enterprise agreements. These include providing a simple, flexible and fair framework that enables collective bargaining in good faith and enabling the Commission to facilitate the making of enterprise agreements, including through making bargaining orders and dealing with disputes where the bargaining representatives request assistance.

[20] The right to take protected industrial action is an important part of the collective bargaining framework in the Act, as is bargaining itself. Where parties have reached an impasse, there are various mechanisms available to them in the Act including bargaining orders, the taking of industrial action and seeking the assistance of the Commission to resolve the dispute.

[21] I am satisfied that a temporary suspension of protected industrial action would not be contrary to the public interest nor inconsistent with the objects of the Act. The parties' rights in relation to industrial action would be deferred for a short period but not displaced. In the meantime, a cooling off period will create the opportunity for dialogue between the parties where there is currently none. In my view, this is entirely consistent with the objects of the Act.

[22] The AMWU submitted that Paper Australia's refusal to negotiate while protected industrial action was being taken was in breach of the Act's good faith bargaining requirements.[3] Unsurprisingly, Paper Australia disagreed. I am not in a position to make any findings about the conduct of the parties or whether it is, or has been, inconsistent with good faith bargaining requirements and accordingly I have given the parties' respective compliance with the good faith bargaining requirements limited weight.

[23] It is also relevant that bargaining has been ongoing for almost 11 months and while significant progress has been made, no agreement has been reached. The issues in dispute are narrow in scope. Having heard from the parties, I consider that a resolution of the dispute can be achieved if faith in the bargaining process can be restored. In my view, the Commission can play a role in assisting the parties to that end.

[24] Having regard to each of the matters in section 425 of the Act, I am satisfied that it is appropriate to suspend protected industrial action in relation to the proposed agreement that is being engaged in for a period of 10 days. An order will issue separately to that effect.

[25] I recommend that the parties seek an urgent conference in the Commission in what I understand to be concurrent proceedings dealing with the proposed agreement under section 240 of the Act.[4]

N Grealy for the Australian Manufacturing Workers' Union.

[1] Explanatory Memorandum to the Fair Work Bill 2008 at [1708]-[1709]

[2] CFMEU v Woodside Burrup Pty Ltd [2010] FWAFB 6021

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