Aurizon Operations Limited v Australian Rail, Tram and Bus Industry Union [2015] FWC 217 (1 January 2015) [2015] FWC 217 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s 418 - Application for an order that industrial action by employees or employers stop etc. Aurizon Operations Limited v Australian Rail, Tram and Bus Industry Union (C2014/8470) DEPUTY PRESIDENT SAMS SYDNEY, 9 JANUARY 2015 Application for order that industrial action by employees stop, not occur or not be organised - whether industrial action protected - whether industrial action for an illegitimate or ulterior purpose - industrial action protected - application dismissed. [1] This is an urgent application filed by Aurizon Operations Limited (‘Aurizon’ or the ‘applicant’), pursuant to ss 418 and 419 of the Fair Work Act 2009 , seeking orders from the Fair Work Commission (the ‘Commission’) to stop alleged unprotected industrial action by members of the Australian Rail, Tram and Bus Industry Union (RTBU or the ‘Union’). The employees are employed under the QR National Traincrew Enterprise Agreement 2010 [AE880759] and are employed at various rail depots in Queensland. [2] On 12 November 2014, Commissioner Spencer issued an order permitting the RTBU to hold a protected action ballot. That ballot resulted in the members of the RTBU voting for various forms of industrial action. On 28 December 2014, the RTBU provided the applicant with two notices of ‘protected industrial/employee claim action’. The specifics of the notices are: (a) An overtime ban of RTBU members from 1am 3 January 2015 until 1am 7 January 2015 at the Pring, Coppabella and Callemondah Depots; and (b) A 24 hour stoppage of RTBU members from 12:00pm, 3 January 2015 until 12:00pm 4 January 2015 at the Jilalan Depot. [3] On 29 December 2014, the RTBU provided the applicant with a further notice of ‘protected industrial/employee claim action’. The specifics of the notice are: (a) An overtime ban of RTBU members from 1:00am, 4 January 2015 until 1:00am, 7 January 2015 at the Bluff and Stanwell Depots. [4] On 30 December 2014, the RTBU provided the applicant with a further notice of ‘protected industrial/employee claim action’. The specifics of the notice are: (a) A 24 hour stoppage of RTBU members from 12:00pm 6 January 2015 until 12:00pm 7 January 2015. [5] Aurizon argues that the proposed industrial action is not protected in that it is to be engaged in for a different and ulterior purpose of compelling Aurizon to withdraw its application before the Commission to terminate or extinguish its current enterprise agreements in matter AG2014/6009 and agree to start bargaining in good faith for a new enterprise agreement. [6] Sections 418 and 419 of the Act are relevant to determining this application. These sections are as follows: ‘ 418 FWC must order that industrial action by employees or employers stop etc. (1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action: (a) is happening; or (b) is threatened, impending or probable; or (c) is being organised; the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period ) specified in the order. (2) The FWC may make the order: (a) on its own initiative; or (b) on application by either of the following: (i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action; (ii) an organisation of which a person referred to in subparagraph (i) is a member. (3) In making the order, the FWC does not have to specify the particular industrial action. (4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action: (a) some or all of which has not been taken before the beginning of the stop period specified in the order; or (b) which has not ended before the beginning of that stop period; or (c) beyond that stop period; the FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot. 419 FWC must order that industrial action by non-national system employees or non-national system employers stop etc. Stop orders etc. (1) If it appears to the FWC that industrial action by one or more non-national system employees or non-national system employers: (a) is: (i) happening; or (ii) threatened, impending or probable; or (iii) being organised; and (b) will, or would, be likely to have the effect of causing substantial loss or damage to the business of a constitutional corporation; the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period specified in the order. (2) The FWC may make the order: (a) on its own initiative; or (b) on application by either of the following: (i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action; (ii) an organisation of which a person referred to in subparagraph (i) is a member. (3) In making the order, the FWC does not have to specify the particular industrial action.’ [7] Section 409 of the Act, dealing with ‘ employee claim action ’ is also relevant in this case. It is expressed as follows: ‘ 409 Employee claim action Employee claim action (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. Protected action ballot is necessary (2) The industrial action must be authorised by a protected action ballot (see Division 8 of this Part) . Unlawful terms (3) The industrial action must not be in support of, or to advance, claims to include unlawful terms in the agreement. Industrial action must not be part of pattern bargaining (4) A bargaining representative of an employee who will be covered by the agreement must not be engaging in pattern bargaining in relation to the agreement. Industrial action must not relate to a demarcation dispute etc. (5) The industrial action must not, if it is being organised or engaged in by a bargaining representative, relate to a significant extent to a demarcation dispute or contravene an FWC order that relates to a significant extent to a demarcation dispute. Notice requirements after suspension order must be met (6) If section 429 (which deals with employee claim action without a further protected action ballot after a period of suspension) applies in relation to the industrial action, the notice requirements of section 430 must be met. Officer of an employee organisation (7) If an employee organisation is a bargaining representative of an employee who will be covered by the agreement, the reference to a bargaining representative of the employee in subparagraph (1)(b)(i) of this section includes a reference to an officer of the organisation.’ [8] The matter was listed for urgent hearing on 2 January 2015 with permission to appear granted, pursuant to s 596 of the Act, to Mr H Dixon of Senior Counsel appearing for Aurizon and Mr R Reitano of Counsel appearing for the RTBU. Due to the urgency of the application and the pending industrial action over the coming weekend, I delivered this decision ex tempore on 2 January 2015 and reserved the right to give more fulsome reasons for decision should that be necessary. [9] Aurizon relied on a statement of Mr Michael Heenan, Manager, Employee Relations and attached various items of correspondence between Aurizon and the Union. It is plain that Aurizon has actively sought to discourage the employees from taking industrial action. The correspondence also makes clear that bargaining is to be resumed in the New Year, despite and irrespective, of any protected industrial action. On 29 December 2014, Aurizon advised the Union of shutdown arrangements relevant to the crewing, storage and safety of its employees and property during the periods of proposed industrial action. [10] I have carefully considered the evidence of Mr Heenan and the helpful submissions of Mr Dixon and Mr Reitano . [11] While the Commission would never endorse the taking of industrial action as a weapon to pressure an employer to withdraw or refrain from exercising its legal rights under the Act (indeed, it would be highly unlikely such industrial action would be ‘protected’ in any event), the proposed industrial action by the Union, the subject of this s 418 application, must be viewed in its proper contextual and legal framework. [12] In my view, the facts relevant to this matter are set out in the following propositions. (1) The employees are presently covered by an expired enterprise agreement. (2) The parties have been negotiating for a new enterprise agreement since 2013. (3) Aurizon has put three proposed enterprise agreements to its employees with two of the three being rejected and the other subject to separate proceedings before me as to the validity of the vote. This matter is reserved for decision. (4) Aurizon has applied to the Commission to terminate all its existing expired enterprise agreements. This application has been strenuously opposed by the Union and was subject to lengthy proceedings before the Full Bench of the Commission. The decision of the Full Bench is reserved. (6) The Union, as a bargaining representative of the employees, has obtained protected action ballot orders from the Commission on 12 November 2014. (5) Ballots of employees have overwhelmingly endorsed various forms of industrial action. (6) The Union has given the required notice to Aurizon of the industrial action the employees are proposing to take. (7) The objections of the Union to certain proposals of Aurizon in respect to the content of the enterprise agreement are well known and understood by Aurizon. [13] Given these considerations, the perhaps ill-advised comments of the Union in the heat of a protracted and robust period of negotiations, does not seem to me to undermine or distort the essential legal underpinning objective of the Union to secure industrial outcomes from the enterprise negotiations which are resisted by Aurizon. This is an unremarkable and conventional exercise of the Union’s right to take protected industrial action in accordance with the spirit and the letter of the bargaining provisions of the Act, and in the ordinary course of the ‘rough and tumble’ of industrial negotiations. [14] Pursuant to s 409 of the Act, I am satisfied that the ‘employee claim action’ is in support of advancing claims in relation to the enterprise agreement, which are only about permitted matters. The comments in the Union’s letter of 17 December 2014 are little more than a bargaining tactic in the form of an offer (now withdrawn), which Aurizon had been well aware of for some time prior to 17 December 2014. It can be seen in the same light as Aurizon’s pleas or offers to the Union not to engage in legal protected action because of the impact it will have on the business; See: MFH14 and MFH 15. [15] I note that even if Aurizon is successful in terminating the existing enterprise agreements, bargaining for new enterprise agreements will continue, albeit in a different environment. Further, I agree with Mr Reitano that there was no evidence, let alone compelling evidence, of the Union pursuing industrial action for an ulterior or impermissible purpose. [16] Moreover, I note that at no stage, until the filing of this application, has Aurizon expressed a view that either the purpose of the protected action ballot or the proposed industrial action was for an illegitimate or ulterior purpose. In addition, Aurizon has known for some time that the Union would not engage in protected industrial action if Aurizon withdraw its application to terminate its existing enterprise agreements. Aurizon has been made detailed arrangements in respect to handling the industrial action and its effects on the business. [17] For these reasons, I find that the proposed industrial action of the RTBU is protected industrial action. The application for s 418 orders by Aurizon is refused. The application is dismissed. DEPUTY PRESIDENT Appearances : Mr H Dixon of Senior Counsel for Aurizon. Mr R Reitano of Counsel for the Australian Rail, Tram and Bus Industry Union. Hearing details: 2015 Sydney (telephone): 2 January Printed by authority of the Commonwealth Government Printer <Price code C, PR559893>