INDUSTRIAL ACTION – order against industrial action – s.418 Fair Work Act 2009 – application for an order to stop etc. industrial action – in a decision of 16 January 2017 the Commission refused to grant an order under s.418 of FW Act [[2017] FWC 306] – further application was made by AGL on 17 January 2017 – AGL sought to rely upon the material in the earlier proceeding – considered appropriate given the allegations and orders sought were similar – AGL provided detailed evidence of the approaches made to individual employees – for nine of the last 11 shifts AGL have been unable to achieve the minimum staffing levels specified in the Loy Yang Power Enterprise Agreement 2012 to operate all four units of the power station – Commission satisfied this is unprecedented – satisfied by the new evidence considered in conjunction with the earlier evidence that industrial action was occurring – satisfied, on the balance of probabilities, that the failure of sufficient employees to agree to work overtime and the extraordinary level of sick leave was a result of collective action – satisfied that not only was there industrial action happening but it was also probable that it would continue – whether or not the CFMEU was organising the industrial action – held that Mr Hardy was acting with the authority or apparent authority of the CFMEU – having found that unprotected industrial action was occurring and was also probable, and having found that it was being organised by Mr Hardy and the CFMEU, the Commission must issue an order that it stop – considered that one month was an appropriate time period for the Order. AGL Loy Yang P/L t/a AGL Loy Yang v Construction, Forestry, Mining and Energy Union and Anor
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