INDUSTRIAL ACTION – order against industrial action – s.418 Fair Work Act 2009 – application for an order to stop etc. industrial action – failure to be able to get sufficient employees to work overtime – AGL had been unable to return Unit 1 to service – level of unionisation amongst the station operators high – Commission needed to be satisfied that industrial action was occurring – specifically that there was a ban on the performance of overtime contrary to clauses 15 and 73 of the Loy Yang Power Enterprise Agreement 2012 or contrary to custom and practice regarding the performance of overtime – inadequate evidence to establish that any employee had unreasonably refused to work overtime – good reason to be suspicious that the difficulties AGL had in being able to get sufficient workers to work overtime was a response to the decision to terminate the Agreement – satisfied that station operations employees are effectively able to refuse overtime – in the absence of evidence about how directions were given and the reasons given for refusal and that the number of requests and refusals was out of the normal, Commission not able to be satisfied that actions of employees had been contrary to custom and practice regarding the performance of overtime – not satisfied that industrial action was in fact happening or was threatened, impending or probable or was being organised – could not make the order sought – decision in this matter had been a fine balance – should the problem continue or should further evidence emerge the decision might be quite different. AGL Loy Yang P/L t/a AGL Loy Yang v Construction, Forestry, Mining and Energy Union and Anor
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