PR946739 PR946739 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.127 (2) application to stop or prevent industrial action Transfield Worley Joint Venture and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and The Australian Workers' Union (C2004/3002) Oil and gas industry SENIOR DEPUTY PRESIDENT LACY PERTH, 17 MAY 2004 Application for order that industrial action not occur - section 127 - industrial action - service of section 170MO notice - filing of section 170MR(1) notice - engaging in industrial action in concert with persons that are not protected persons. DECISION [1] Transfield Worley Joint Venture (Transfield Worley) has applied for orders under s.127 of the Workplace Relations Act 1996 (Act) to stop what it alleges is proposed industrial action at the Karratha. The orders sought are directed to each of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and The Australian Workers' Union (AWU). Transfield Worley contends that the industrial action is threatened, impending and probable within the meaning of section 127 of the Act. [2] Work that is the subject of the proposed industrial action is regulated by The Transfield Worley North West Shelf Onshore and Offshore (Maintenance, Modification and Upgrades) Certified Agreement 2001 (Agreement). [3] The orders sought by Transfield Worley proposed to bind the CEPU, AWU and AMWU and their employees and officers and members who are employees of Transfield Worley. [4] Representatives of the AMWU, AWU and CEPU (collectively the organisations) opposed the making of any orders. The organisations claimed that the proposed action was protected industrial action for the purposes of the Act. [5] In the proceedings before me, Mr Ellery of counsel appeared by leave on behalf of Transfield Worley. Mr C Saunders represented the AMWU, while Mr P Carter appeared on behalf of the CEPU and Mr D McLean appeared for the AWU. [6] I heard the application by video link on 13 and 14 May 2004 and, at the conclusion of the hearing, gave brief reasons for granting an interim order in the matter. I then indicated to the parties that I would publish my written reasons for decision on 17 May 2004 and directed the parties into conference before me on that day. What follows are my written reasons for decision. Legislative Context [7] As stated in paragraph [1] above, the applications are made under s.127 of the Act. That section relevantly provides as follows: 127 Orders to stop or prevent industrial action (1) If it appears to the Commission that industrial action is happening, or is threatened, impending or probable, in relation to: (a) an industrial dispute; or (b) the negotiation or proposed negotiation of an agreement under Division 2 of Part VIB; or (c) work that is regulated by an award or a certified agreement; the Commission may, by order, give directions that the industrial action stop or not occur. (2) The Commission may make such an order of its own motion, or on the application of: (a) a party to the industrial dispute (if any); or (b) a person who is directly affected, or who is likely to be directly affected, by the industrial action; or (c) an organisation of which a person referred to in paragraph (b) is a member. (3) The Commission must hear and determine an application for an order under this section as quickly as practicable. (4) The powers conferred on the Commission by subsection (1) are in addition to, and not in derogation of, the powers conferred on the Commission by the rest of this Act. (5) A person or organisation to whom an order under subsection (1) is expressed to apply must comply with the order. Principles [8] The application of s.127 of the WR Act and the principles have been considered and discussed in a number of decisions of the Commission. It is convenient to summarise those principles and statements of general application here. [9] Section 127(1) empowers the Commission to make orders directing that industrial action which is either happening, threatened, impending or probable stop or not occur, where that industrial action is in relation to: an industrial dispute; or the negotiation or proposed negotiation of an agreement under Division 2 of Part VIB; or work that is regulated by an award or a certified agreement. [10] In dealing with an application under s.127 of the WR Act, the Commission must hear and determine an application for an order as quickly as practicable. [11] Prior to exercising its powers to make any orders under s 127 the Commission must make findings of fact regarding jurisdictionally essential prerequisites . These jurisdictional prerequisites correspond to the matters contained in subsection (1) of section 127 . 1 [12] It is for the applicant seeking an order to satisfy the Commission of the existence of the jurisdictional prerequisites. 2 The onus that rests with the applicant in this regard extends to establishing, at least on a prima facie basis, that there are adequate grounds for the Commission to order that the relevant action stop or not occur. [13] The plain meaning of section 127 (1) of the Act is that the Commission must be satisfied that industrial action is continuing, threatened, impending or probable at the time the section 127 order is made. 3 [14] The Commission has no power to make an order unless the person or organisation the subject of the order sought is engaging in industrial action within the meaning of the WR Act. 4 The action in respect of which a section 127 order may be made will therefore include bans, limitations or restrictions on the performance of work or on the acceptance of or offering for work, the failure or refusal to attend and perform work, and the performance of work in a manner different from that in which it is customarily performed. [15] The power to make an order under s.127 , assuming all of the jurisdictional prerequisites are made out, requires an exercise of discretion. Provided that the jurisdictional prerequisites have been established, the Commission's discretion under section 127 is at large. The identification of considerations relevant to the exercise of the discretion should be guided by the objects of the Act and an understanding of the relationship of the power and the effect of its exercise to the scheme of the Act. 5 Background [16] The Applicant is a joint venture between Transfield Services (Australia) Pty Ltd and Worley Limited. The joint venture holds the Alliance Contract with Woodside Energy Ltd. According to the terms of the contract Transfield Worley is responsible for providing support for any breakdown maintenance that is required in respect to Woodside's Karratha liquid natural gas (LNG) plant. LNG vessels come into port about every three days to load LNG for delivery to clients in Korea, China and Japan. The LNG plant has an estimated value of $6 billion. The value of LNG per vessel is about $20 million to $30 million. Unrecovered breakdowns at the plant could lead to customers sourcing other markets for LNG supplies. [17] Certain of Transfield Worley's other employees operate the warehouse and the wharf at Karratha Supply Base, which is responsible for supplying three major offshore facilities with food, equipment and materials. The proposed industrial action would interfere with supply to the offshore facilities and disrupt their operations. [18] The Agreement was certified by the Commission on 28 March 2001. Its nominal expiry date is 27 March 2004. It is binding on Transfield Worley and its employees, the AMWU, CEPU and the AWU. It applies to scaffold riggers, boilermakers/welders, electricians, instrument technicians, insulators, storepersons and trades assistants employed by the Transfield Worley on sites, installations or facilities operated by Woodside Energy Ltd. [19] It is common ground between the parties that they have been in negotiation for a new certified agreement for approximately 12 months. The current level of agreement is contentious; Transfield Worley contending, the organisations disputing, negotiations are close to resolution. [20] Each of the AMWU and the CEPU initiated bargaining periods, respectively on 27 April and 3 May 2004, to try to make an agreement with Transfield Worley. On 11 May 2004, the AMWU forwarded to Transfield Worley by facsimile transmission a copy of its notice of intention to take industrial action. On the same day the CEPU filed with the Industrial Registrar, a notice of authorisation to engage in industrial action in respect of the negotiations with Transfield Worley and a notice of intention to take industrial action. CEPU forwarded to Transfield Worley by facsimile transmission copies of both notices. [21] The industrial action of which AMWU and CEPU gave notice, was identified as a cessation of work for Woodside onshore and/or supply base facilities from normal start time on 17 May 2004, with no further work to be carried out until a report back meeting to be held on 21 May 2004 at normal start time to determine what future protected action will be taken before a return to work. [22] Certain Transfield Worley employees, members of the employee bargaining unit involved in the negotiations for a new certified agreement, informed Chris Walsh, the Asset Team Manager, Transfield Worley, on 11 May 2004, of the resolve of all employees to go out for one week . [23] On 12 May 2004, Transfield Worley lodged the application currently before me to prevent the occurrence of the threatened, impending or probable industrial action of which the AMWU and CEPU have given notice. CONSIDERATIONS [24] Transfield Worley contended that the action proposed by AMWU and CEPU is not protected industrial action. It does so on two primary bases, viz: there has been no effective service of the notice of intended industrial action; the intended industrial action was organised and/or is to be conducted in concert with persons who are not protected. [25] The second of the two bases is advanced on two fronts. First, it is argued that the AWU and or Transfield Worley employees who are not members of either the AMWU or the CEPU have participated in the organisation of the industrial action and will participate in the industrial action itself. Secondly, it is contended that the AMWU itself is not a protected person because, contrary to the requirements of s.170MR of the Act, it had not given to the Registrar, written notice of the giving of authorisation for taking industrial action. In either case, so the argument runs, the intended action is not protected by reason of loss of immunity in terms of s 170MM of the Act. [26] Neither the AMWU nor the CEPU dispute the intended industrial action. Clearly industrial action is impending. The industrial action is in relation to the negotiation or proposed negotiation of an agreement under Division 2 of Part VIB and it is in relation to work that is regulated by an agreement. Consequently the jurisdictional prerequisites for the making of an order have been established. [27] It is common ground that the AWU had not given notice of industrial action. Although the AWU, by it representative, asserted that it would not be taking industrial action it did not disavow participation in the organisation of the intended industrial action. [28] The AMWU and the CEPU maintained that service of the relevant notices had been effected and was effective. They argued that, as the AWU did not intend participating in the industrial action, its presence in the workplace does not infect the protection given by the Act. The AMWU also asserted constitutional capacity to enrol the employees who are engaged in the work at the supply base and who would otherwise be eligible to be members of the AWU. I was satisfied on the evidence before me that AMWU and CEPU had served upon Transfield Worley by facsimile transmission, notices of intended industrial action. [29] The first question that arose for consideration was whether service by facsimile transmission is sufficient service of notices under s.170MO of the Act. [30] In the circumstances of this case, s.170MO required written notice of the AMWU and the CEPU intended action be given to Transfield Worley by them at least three working days before the action. The Rules of the Commission make no specific provision for the manner in which notices under s.170MO are to be given. General requirements as to service are prescribed by Rule 72. It makes no provision for service by facsimile transmission. Generally speaking service must be effected personally or by prepaid registered post. To similar effect is s.28A of the Acts Interpretation Act 1901. It stipulates that where a Commonwealth Act requires or permits a document to be served whether the expression "serve", "give" or "send" or any other expression is used , it must be served, by leaving it at, or sending it by prepaid post to, one of the company's recognised offices. In my view neither the AMWU nor the CEPU, by sending notices by facsimile transmission, have effected service in accordance with these requirements. It follows that the impending industrial action would not be protected action. [31] In view of the finding that I make in respect of the service issue it is unnecessary for me to determine the question posed by Transfield Worley about the participation of unprotected persons in the impending industrial action. However, as it had been argued I did make findings in that regard. [32] Turning first to the issue of the requirement for AMWU to give notice to the Registrar of the organisation's authorisation to take industrial action I found that no such notice had been given. Section 170MR of the Act, so far as presently relevant, is in the following terms: (1) Engaging in industrial action by members of an organisation of employees that is a negotiating party is not protected action unless, before the industrial action begins: (a) the industrial action is duly authorised by a committee of management of the organisation or by someone authorised by such a committee to authorise the industrial action; and (b) if the rules of the organisation provide for the way in which the industrial action is to be authorised-the industrial action is duly authorised under those rules; and (c) written notice of the giving of the authorisation is given to a Registrar. (2) Industrial action is taken, for the purposes of this section, to be duly authorised under the rules of an organisation of employees even though a technical breach has occurred in authorising the industrial action, so long as the person or persons who committed the breach acted in good faith. (3) Examples of a technical breach in authorising industrial action are as follows: (a) a contravention of the rules of the organisation; (b) an error or omission in complying with the requirements of this Act; (c) participation, by a person not eligible to do so, in the making of a decision by a committee of management, or by members, of the organisation. [33] It is evident from the material before me that a copy of the authorisation for AMWU to take industrial action was not given to the Registrar. In the course of an adjournment in the hearing the AMWU filed with the Registrar a copy of its s.170MO notice of intention to take industrial action. When the hearing resumed a copy of the newly filed s.170MO notice was tendered in the proceeding. However, the s.170MO notice does not satisfy the requirements of s.170MR. While the omission might have been preserved by s.170MR(3)(b), which point I do not determine as it was not argued before me, there was no evidence before me at all to show that the impending industrial action was authorised as required. [34] I am satisfied also that persons who are neither members nor entitled to be members of the AMWU or the CEPU have participated in organising the industrial action and would have participated in it. [35] It is unnecessary for me to determine whether the notice of industrial action is uncertain or ambiguous. I note however, that Transfield Worley's claim in this regard may have substance. [36] In my view the impending industrial action would be unprotected industrial action. [37] It remained for me to consider whether, in the exercise of my discretion, an order should issue. I concluded that it should. I did so on two grounds. Given that the industrial action would be unprotected, employees are likely to have been exposed to suit for damages. The evidence suggests that the consequences of the industrial action, in economic terms, would have been substantial. In the circumstances it was appropriate that an order should be made to ensure, so far as practicable, the employees were not exposed to such liability. It was also in the public interest that the order be made. Consequently, I issued an interim order which is operative from 4.30 pm on 14 May 2004 until 4.30 pm on 17 May 2004 or until further order. BY THE COMMISSION: SENIOR DEPUTY PRESIDENT Appearances: Mr N Ellery with leave on behalf of Transfield Worley Joint Venture Mr D Carter for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia Mr C Saunders for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Mr D McLean for The Australian Workers' Union Hearing details: 2004. Melbourne & Perth. May 13 - 14. Printed by authority of the Commonwealth Government Printer <Price code C> 1 Coal and Allied Operations Pty Ltd and Automotive Food Metals Engineering Printing and Kindred Industries Union [Print P2071] (Munro J, Harrison SDP and Leary C). 2 ibid. 3 CBI Constructors Pty Ltd v Australian Manufacturing Workers Union [Print R1748]; 87 IR 82 (Giudice J, Polites SDP and Gregor C). 4 WR Act, s 4. 5 Coal and Allied supra . See also Southcorp Australia Pty Ltd, Print [N8922] (Lewin C).