[2012] FWAFB 350 [2012] FWAFB 350 Download Word Document FAIR WORK AUSTRALIA DECISION Fair Work Act 2009 s.604—Appeal of decisions Boral Cement Ltd v Australian Workers’ Union (C2011/6461) JUSTICE GIUDICE, PRESIDENT SENIOR DEPUTY PRESIDENT HARRISON COMMISSIONER ASBURY MELBOURNE, 12 JANUARY 2012 [1] This is an appeal, for which permission is required, by Boral Cement Ltd (Boral) against a decision given by Commissioner Cargill in Sydney on 21 October 2011. The Commissioner rejected an application by Boral under s.418 of the Fair Work Act 2009 (the Fair Work Act) for an order that industrial action not be taken. The order was sought against the Australian Workers’ Union - Port Kembla, South Coast and Southern Highlands Branch and its members employed by Boral at its plant at Berrima in New South Wales. The appeal is brought under s.604 of the Fair Work Act. [2] It appears that the Australian Workers’ Union (AWU) and its members at the Berrima plant are opposed to an aspect of Boral’s Drug and Alcohol Policy. 1 Boral wishes to use urine samples in order to test employees for drugs and alcohol. The AWU and the employees at Berrima are opposed to urine testing but are not opposed to saliva testing. Boral contended that on 20 October 2011 the employees had refused to provide a urine sample for testing and that the refusal was ongoing. The application under s.418 was lodged on the same day. [3] The principal issue before the Commissioner, and on which the application turned, was whether a refusal to provide a urine sample constitutes industrial action within the meaning of that term in the Fair Work Act. The Commissioner decided that, at least in the circumstances of this case, the employees’ refusal to provide a urine sample is not “industrial action” as defined in s.19(1) of the Fair Work Act. She dismissed the s.418 application on that basis. On the hearing of the appeal we were referred to a number of authorities on the meaning of “industrial action” in the Fair Work Act and in other relevant legislation. [4] It appears that there have been disagreements between Boral and the AWU in the past about urine testing. There is material before us indicating that a dispute between Boral and the AWU has been considered by the Industrial Relations Commission of New South Wales (IRCNSW) in recent times. An enterprise agreement known as the Blue Circle Southern Cement Ltd (NSW) Enterprise Agreement 2010 (the enterprise agreement) applies to work performed by employees at the Berrima plant. 2 Clause 41 of the enterprise agreement deals with dispute resolution. Relevantly, sub-clause 41.6 reads: “41.6 If an agreement is not reached about the grievance or dispute, and the grievance or dispute remains outstanding, the disagreement shall be settled or resolved by a person who is a Member of the Industrial Commission of New South Wales ('the Commission') in the exercise of the powers and functions conferred by s 146B of the Industrial Relations Act 1996 ('the IR Act'), in accordance with the following: (a) A party or the parties to this agreement shall notify the Industrial Registry established under the IR Act in Sydney or, in the case of a regional dispute, in Wollongong, of the existence of a dispute or grievance, and that the formal stage of this dispute settlement procedure is being invoked in accordance with the terms of this agreement; (b) In the case of each dispute or grievance notified, the person dealing with the dispute or grievance shall be selected by the President of the Commission or, in his absence or upon his nomination, the Vice-President of the Commission; (c) The person, so selected, shall first attempt to resolve the dispute or grievance by conciliation. In doing so, the person may require the attendance of any party to the agreement or request the attendance of any other person and exercise any of the powers and discharge the functions as specified in s l34 of the IR Act; (d) If the dispute or grievance is not resolved by conciliation, any remaining disagreement shall be resolved and determined by arbitration. Subject to the appeal provided for in sub-clause 5, the determination by arbitration shall be formal and binding on the parties to this agreement and any person bound by the agreement; (e) The parties to the arbitration may appeal any decision and determination made in accordance with sub-clause 4 above. Such an appeal shall be conducted before three persons who are Members of the Commission who are selected by the President of the Commission or, in his absence, the Vice-President of the Commission who shall constitute a 'Full Bench' within the meaning of that expression in the IR Act. The appeal shall be conducted in accordance with the terms of Pt 7 Pt 4 of the IR Act, so far as those provisions would apply to an appeal from a decision or order made under s 136 of that Act; (f) The President may select different persons, Members of the Commission, to conduct the conciliation and/or arbitration. However, the same person will normally conduct both the conciliation and arbitration; (g) Without limiting the powers and functions conferred by the foregoing provisions, the following powers and functions may be exercised by the person selected to conciliate and/or arbitrate: (i) Settle any dispute or grievance about a matter referred to in s 186(6)(a) of the Fair Work Act 2009 ('the FW Act'); (ii) Adopt any procedure and the exercise of any power referred to or specified in Pt 5 of Ch 4 of the IR Act; (iii) Resolve any dispute or grievance over the making of a new agreement (provided that any conciliation or arbitration about that matter shall not occur earlier than six months before the expiry of this agreement and the resolution of any such issue shall not result in any change in this agreement before its expiry); and (iv) Make a recommendation that any industrial action including a strike or lock-out cease before any conciliation and/or arbitration is carried out by the person. (h) Employees may be represented at any stage of, or in any pmt of, the above process by their union or unions or otherwise as approved by the person settling or resolving the dispute or grievance. (i) The exercise of any power or function under this clause is subject to the requirements of s 740(4) of the FW Act.” [5] It is clear from this provision, and paragraph (a) of sub-clause 41.6 in particular, that the parties have bound themselves to seek and accept arbitration of unresolved disputes or grievances in the IRCNSW. It is common ground that a dispute about urine testing at Berrima and another Boral site in New South Wales was before the IRCNSW in July 2010 and during 2011, that, at least at Berrima, the dispute remains unresolved and that neither Boral nor the AWU has sought arbitration in the IRCNSW. The apparent failure of the parties to deal with the dispute in accordance with the dispute resolution provision was raised by Commissioner Cargill but no explanation was provided. [6] We do not think this is an appropriate case in which to grant permission to appeal. The underlying industrial issue which led to the s.418 application is capable of being resolved using the agreed procedures in the enterprise agreement. It seems to us that if we were to grant permission to appeal we could be seen as encouraging Boral, or both parties, to continue to ignore their obligations under clause 41 of the enterprise agreement. This is an important question of principle. [7] We refuse permission to appeal. We express no view in relation to the main issue raised by Boral, namely, whether in the circumstances of this case the employees’ refusal to provide urine samples for the purposes of drug and alcohol testing is “industrial action”. The appeal is dismissed. PRESIDENT Appearances : R Warren of counsel for Boral Cement Ltd. A Hatcher SC for the Australian Workers’ Union. Hearing details: 2011. Sydney. December, 20. 1 Exhibit Boral 1, Appeal Book pp 37-50. 2 [2010] FWAA 6790 ; AE880459. Printed by authority of the Commonwealth Government Printer <Price code A, PR519033>