(1) FWA must make an order suspending protected industrial action for a proposed enterprise agreement that is being engaged in if FWA is satisfied that the suspension is appropriate taking into account the following matters:

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

(b) the duration of the protected industrial action;

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

(d) any other matters that FWA considers relevant.

(2) FWA may make the order only on application by:

(a) a bargaining representative for the agreement; or

[3] The application has been made by Transit Australia Pty Ltd (the employer). The application seeks Orders against the Transport Workers' Union of Australia (TWU). The application appeared to seek that Orders be made under either or both of ss.425 and or 426 of the Act.

[4] At an early stage of the proceedings held today, the TWU raised a jurisdictional objection to that aspect of the application that related in any way to s.426 of the Act. The TWU submitted that subsection (6) of s.426 of the Act restricted any application for Orders under s.426 such that the employer was not capable of making any such application.

[5] Subsection (6) of s.426 of the Act is in the following terms:

"Order may only be made on application by certain persons

(6) FWA may make the order only on application by:

(a) an organisation, person or body directly affected by the protected industrial action other than:

(i) a bargaining representative for the agreement; or

(ii) an employee who will be covered by the agreement; or

(ba) if the industrial action is being engaged in in a State that is a referring State as defined in section 30B or 30L - the Minister of the State who has responsibility for workplace relations matters in the State; or

(bb) if the industrial action is being engaged in in a Territory - the Minister of the Territory who has responsibility for workplace relations matters in the Territory; or

[6] Subsection (1) (a) of s.176 of the Act stipulates that an employer that will covered by an enterprise agreement is a bargaining representative for the agreement. Therefore, the employer is specifically excluded from capacity to make any application under s.426 of the Act. Hence the jurisdictional objection made by the TWU in respect to that aspect of the application that related in any way to s.426 of the Act is upheld. The application as it may relate to s.426 of the Act is invalid. In any event, during the course of later proceedings, the employer has withdrawn any reliance upon s.426 of the Act.

[7] Consequently, the matter can only proceed on the basis that it is confined to an application taken under s.425 of the Act.

[8] In accordance with s.414 of the Act, the TWU has given notice that members engaged by the employer will take protected industrial action involving a four hour stoppage of work to commence at 4 am tomorrow, 29 July 2011, and further, a ban on performing overtime will also be imposed for 29 July 2011.

[9] Relevantly the employer has made application under s.425 of the Act seeking to have FWA make an Order to suspend the protected industrial action. The application was the subject of initial proceedings held in Brisbane on 27 July 2011, at which time FWA convened both formal proceedings to deal with the application and informal processes which involved recommencement of conciliation discussions.

[10] Earlier this year I convened a series of conciliation meetings which dealt with the enterprise bargaining negotiations between the employer and the TWU. As a result of my participation in these conciliation meetings, further attempts to find a basis for successful conclusion of the enterprise bargaining negotiations occurred yesterday. The parties continued the conciliation process today in an attempt to avert the notified industrial action. Unfortunately conciliation was unsuccessful and the application has proceeded to Hearing and determination.

[11] The proceedings to provide for Hearing of the application have, by necessity, been abbreviated and to some extent made difficult by the inability to have all parties present at the same location for an attendance Hearing. Nevertheless, FWA has been provided with evidence and submissions which provide a proper basis upon which to make a determination of the application.

[12] The protected industrial action notified by the TWU for tomorrow is a continuation of numerous earlier incidents of protected industrial action. In particular, very similar industrial action was the subject of a previous application made by the employer under s.424 of the Act (the 424 application) and which led to a Decision of Commissioner Asbury delivered on 31 May 2011 [2011] FWA 3410.

[13] Although there are different considerations applicable to applications taken either under s.424 or s.425 of the Act, there would generally appear to be a higher test that would need to be met to enable the granting of an Order under s.424 as compared to the requirements to be satisfied for the making of an Order under s.425. As a general observation, it would seem that if protected industrial action could not satisfy the requirements of s.424 regarding endangering life etc it would seem difficult to anticipate that the same or very similar protected industrial action might meet the somewhat lesser notions associated with the suspension provided by s.425 for the purposes of "cooling off".

[14] Consequently, it would seem that as the 424 application was refused in the Decision of Commissioner Asbury there would need to be strong persuasive evidence in respect of the issues under consideration in subsection 425(1) of the Act before the application could be successful. Of course, as earlier stated, the considerations are different. However, there would appear to be some strength to the argument that if the industrial action was not found to endanger life etc such that an Order to suspend or terminate that action was not granted, then if the same or similar industrial action provided basis for an Order for suspension to permit cooling off, prima facie, there would appear to be something of an inconsistent and potentially confusing outcome.

[15] In the context of the observations that I have made regarding the comparative provisions of ss.424 and 425 of the Act, I have been required to carefully examine and assess the evidence and submissions having regard for the factors that are set out in paragraphs (a) to (d) of subsection 425(1) of the Act. In addition I have had the benefit of being personally involved in an extensive conciliation process regarding the enterprise bargaining negotiations of the parties.

[16] In respect to paragraph (a) of subsection 425(1) of the Act, the evidence and submissions provided has not convinced me that it would be beneficial to the bargaining representatives in assisting to resolve the matters at issue if the suspension of the industrial action was provided. Essentially, the evidence that was provided did not establish exactly how the suspension of the industrial action would operate to assist the resolution of the enterprise bargaining negotiations.

[17] In terms of paragraph (b) of subsection 425(1) of the Act, the duration of the protected industrial action is on this occasion more limited than previous occasions and in that context the duration of the protected industrial action does not provide any compelling factor in support of granting the suspension. On balance, however, the overall time period which has elapsed since the first incident of protected industrial action occurred is significant. It must also be recognised that for a substantial period whilst FWA was actively assisting in the conciliation process there was an absence of protected industrial action. In many respects, that period may appropriately be considered as a cooling off period, which unfortunately did not resolve the enterprise bargaining negotiations.

[18] There is some basis to support the proposition that the public interest would be served by suspension of the protected industrial action as is relevant to paragraph (c) of subsection 425(1) of the Act. It would seem however that support for this proposition is largely contingent upon a public interest test confined to the travelling public of the Sunshine Coast as opposed to the broader concept of public interest. I believe that it is the latter more general concept of public interest which is relevant to this aspect of consideration of the application.

[19] In respect to that aspect of paragraph (c) of subsection 425(1) of the Act which relates to any inconsistency with the objects of the Act, it is relevant to note that object 3(f) of the Act seems to provide the only mention of industrial action. In that respect the objects appear to be confined to providing "...clear rules governing industrial action". There is no specific object relating to avoiding or minimising protected industrial action. The legislative regime has been constructed with a clear intention to facilitate the taking of protected industrial action. Although I personally find such an approach to be inconsistent with other objects regarding the promotion of productivity and economic growth, it would appear that the suspension of the protected industrial action by way of Order under s.425 would in this instance, be likely to be inconsistent with the objects of the Act.

[20] In summary therefore, having carefully considered the various competing factors to which I am directed by paragraphs (a) to (d) of subsection 425(1) of the Act, I am compelled to conclude that the relevant legislative tests required to establish the basis for the making of an Order under s.425 of the Act have not been met. Therefore, I am unable to grant the application.

[21] Consequently, for the reasons that I have set out above, the application in this matter is dismissed and proceedings are adjourned accordingly.

Mr I. MacDonald on behalf of Transit Australia Pty Ltd

Mr A. Carter on behalf of the Transport Workers' Union of Australia

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