Sucrogen Australia Pty Ltd (formerly Renewable & Sugar Services Pty Ltd)

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU); The Australian Workers' Union of Employees, Queensland; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

[1] The Applicant, Sucrogen Australia Pty Ltd, (the employer) filed an Application for an Order that industrial action proposed to be taken by employees, stop; in accordance with s.418 of the Fair Work Act 2009 (Cth) (the Act). The Respondents (the Unions) were the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU), Australian Workers' Union (AWU) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU).

[2] An ex tempore decision was given in transcript at the conclusion of the hearing. Delays were experienced with the transcript and the decision is now provided.

[3] Given the time frame for s.418 applications, the matter was brought on quickly and required an urgent determination. I reserved the right to edit the determination and provide further reasoning. However, an additional Order in relation to the operation of s.418(4) is also provided.

[4] In terms of background to the Application, on 22 February 2010 the Unions applied to Fair Work Australia (FWA) for a protected action ballot Order. The application was granted on 24 February 2010 and Orders were made for a ballot to occur before 11 March 2010. The employees voted to approve the industrial action sought. On 16 April 2010, the Unions applied to FWA to extend the 30 day period in which to take the protected industrial action authorised pursuant to my Order of 24 February 2010. The employer did not oppose this application and the Order was granted to extend the period for taking protected industrial action by a further 30 days commencing from 18 April 2010. This period expired on 17 May 2010. On 10 May 2010, Sucrogen received correspondence from the AWU providing three days notice of industrial action to take place at Sucrogen, pursuant to s.414 of the Act. On 11 May 2010, Sucrogen received similar correspondence from the CEPU and AMWU. The proposed industrial action was to comprise of four consecutive stoppages of work on Monday 17 May 2010 from 7.00 am to 5.00 pm and total ban on call outs and overtime from 3.30 pm on 17 May 2010 to 7.00 am on 18 May 2010.

[5] A proposed enterprise agreement had been reached between the parties with a schedule of education sessions in relation to that proposed enterprise agreement being sanctioned by the parties. There was also an agreed date for the vote in relation to that proposed enterprise agreement of 25 May 2010. The Union parties of the Single Bargaining Unit (SBU) had conceded that it was "the best Agreement they could achieve at that time". On the material before me, there is frustration from the union bargaining representatives of the SBU that they would prefer an enhanced proposed agreement. However, it was also clear that they had reached a concluded position on this proposal and that it was to move through to the vote and, if carried, would become the enterprise agreement. If not, the process would be able to be recommenced by the parties.

[6] However, the Unions indicated that in tandem with this particular process, they intended to take industrial action for the purposes of supporting or advancing claims in relation to an enhanced wage increase, outside of that which forms part of the proposed enterprise agreement. They were also seeking, in addition, the incorporation of the modern award in the agreement. The Unions also advanced as a reason for the necessity to take industrial action on Monday 17 May 2010 (the 60th day of the extended period of the protected industrial action) that not having previously taken industrial action, there was a necessity for them to do so to preserve this entitlement. This reasoning does not make the action protected. The proposed industrial action taken in support of these matters outside of the proposed agreement is not action that is commensurate with the definition of protected industrial action.

[7] This matter, as well as turning on section 418, turns on the wording of sections 409, 408 and 413. The relevant legislation is set out below.

Industrial action is protected industrial action for a proposed enterprise agreement if it is one of the following:

(a) employee claim action for the agreement (see section 409);

(b) employee response action for the agreement (see section 410);

(c) employer response action for the agreement (see section 411).

(1) Employee claim action for a proposed enterprise agreement is industrial action that:

(a) is organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement that are only about, or are reasonably believed to only be about, permitted matters; and

(b) is organised or engaged in, against an employer that will be covered by the agreement, by:

(i) a bargaining representative of an employee who will be covered by the agreement; or

(ii) an employee who is included in a group or groups of employees specified in a protected action ballot Order for the industrial action; and

(c) meets the common requirements set out in Subdivision B; and

(d) meets the additional requirements set out in this section.

413 Common requirements that apply for industrial action to be protected industrial action

(1) This section sets out the common requirements for industrial action to be protected industrial action for a proposed enterprise agreement.

3) The following persons must be genuinely trying to reach an agreement:

(a) if the person organising or engaging in the industrial action is a bargaining representative for the agreement - the bargaining representative;

(b) if the person organising or engaging in the industrial action is an employee who will be covered by the agreement - the bargaining representative of the employee.

[8] As set out in section 409, Employee Claim Action for a proposed enterprise agreement is industrial action that is:

(a) organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement that are only about, or are reasonably believed to only be about, permitted matters.

[9] The provision establishes the legislative preconditions for protected industrial action or employee claim action. The action that is proposed does not meet the statutory criteria, as on the evidence there is no connection between the proposed industrial action "for the purposes of supporting or advancing claims which form part of the enterprise agreement". In fact the opportunity to do that has passed; in line with the scheme of the Act. The parties have concluded a proposed enterprise agreement which, by agreement, has moved forward to the education sessions.

[10] Whilst it was set out that what was being sought was a further wage increase and the incorporation of the modern award, there were also additional items being pursued which had been dealt with in the negotiations and a position had been reached, as reflected in the agreed document to be taken to the vote. Whilst I make no determination that any party had not been bargaining in good faith and genuinely trying to reach agreement I have been able to observe the negotiations between the SBU members as a result of my involvement with the parties' bargaining dispute; and have concluded that the Unions have endeavoured via the negotiations, attempted to achieve their preferred agreement without resorting to industrial action.

[11] However, given that the proposed enterprise agreement had been concluded between the parties and the process had moved to the education sessions, the proposed industrial action for Monday 17 May 2010 does not fall within the definition of protected industrial action as set out in section 409 of the Act, nor does it fall within the criteria of s.413.

[12] Section 413(3) sets out that the bargaining representatives engaging in protected industrial action must be genuinely trying to reach agreement. These parties are not still genuinely trying to reach agreement; the bargaining had been concluded and the proposed agreement referred to the vote. The scheme of the Act is such that once an agreement has been reached, it must be presented to employees for their approval. The legislative scheme provides for pre-approval steps to be taken, as per s.180 and s.181 of the Act. That is, employees must be given a copy of the proposed agreement and the Employer must take particular pre-approval steps during the 'access period' to allow employees to understand the proposed agreement. For industrial action to be pursued in relation to a different set of provisions would be contrary to the required pre-approval process to allow for appropriate explanations to be made to employees on the terms of the agreement as per s.180(5). It would be inconsistent, for the agreement to be concluded, and then put to employees for their vote; but at the same time for industrial action to be permitted in relation to an alternative 'agreement' - an 'agreement' that is conceptually different from that put to the employees, for the vote.

[13] In accordance with these reasons, the proposed industrial action was determined to be unprotected industrial action. Therefore, the Orders pursuant to s.418(1) in the amended terms sought were issued following the hearing. The Order to stop industrial action came into effect at 10 pm on 13 May 2010.

[14] The Order made pursuant to s.418(1) provided a 'stop period' for the industrial action until 28 May 2010, that is, after the vote was taken and collated.

[15] In accordance with the manner in which the negotiations have been conducted, I also exercised the discretion pursuant to section 418(4) to allow for the residual of the protected industrial action to be engaged in after the "stop period", and set this out in the decision made on transcript. Commensurate with this is the entitlement for the Unions to further engage in the reserved days of the protected industrial action, if the proposed agreement is not carried.

[16] The evidence supported Monday 17 May 2010 as the 60th day of the protected action period, with the notice of industrial action being given on 13 May 2010. Therefore, four days of the preserved protected action period remained.

[17] If the vote on the Agreement is not carried; it will be open to the parties to recommence negotiations. The industrial action that remains from the 60 day period of the protected industrial action period, will be able to be taken without the necessity to return to a further protected action ballot. The industrial action at that time, however, will still be required to meet the legislative tests for protected industrial action and the normal notice requirements.

[18] The parties' views were sought on the terms of the additional provision of the Order relating to s.418(4). The parties agreed on the following wording:

"Subject to compliance with notice requirements, the Industrial Action may be engaged in after the end of the stop period without another protected action ballot as long as it commences before 4 June 2010."

[19] The parties have consented to this position in relation to the operation of the remaining protected industrial action. Accordingly, a further Order has been issued in relation to the operation of s.418(4) to be read in conjunction with Order (PR997089).

Mr Dan Williams, Minter Ellison, for the Applicant.

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