INDUSTRIAL ACTION – order against industrial action – suspension of protected industrial action – bargaining order – ss.229, 418, 425 Fair Work Act 2009 – multiple applications by ASC P/L (ASC) including application to stop unprotected action, application to suspend or terminate protected action and application for bargaining orders seeking orders against Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia – Electrical Energy and Services Division South Australian Branch (CEPU) – matters concerned operation of ‘ASC North’, responsible for submarine build and maintenance operations – employees at ASC North employed under ASC P/L Enterprise Agreement 2012-2015 (Agreement) – Agreement passed its nominal expiry date – since 23 February 2015, ASC negotiating with three unions for replacement Agreement: CEPU, Australian Manufacturing Workers Union (AMWU) and Australian Workers’ Union (AWU) – on 4 October 2017 ASC advised unions it was ‘unable to enhance the wage offer’ and that it would be ‘seeking to put the document out for another vote, possible opening the seven day Access Period as early as next week’ – members rejected employer’s wage offer and also acknowledged their earlier claim of Electrical Licence Allowance was lost – majority of CEPU members voted to recommence protected industrial action – on 6 October 2017, CEPU served ASC notice under s.414 of FW Act of intention to take industrial action in form of unlimited number of stop work meetings between 12 October and 8 November 2017 – notwithstanding this, ASC proceeding to conduct a vote on proposed Agreement on 19 and 20 October – statutory Access Period commenced on 11 October – ASC unsuccessfully tried to convince CEPU to withdraw intention to take industrial action during this Access Period – CEPU contended that its members were exercising lawful right to take protected industrial action in support of their bargaining position and that at all times its officials have acted in good faith – in relation to s.425 application to suspend protected industrial action, it objected on the basis that protected industrial action had not yet been ‘engaged in’ and accordingly, Commission had no power to exercise discretion to order suspension – Commission did not accept ASC’s submission that mere notification of an intention to take industrial action meant that industrial action was being engaged in or that the Notice itself was industrial action – Commission held that since stop work meetings have not been held as foreshadowed by the Notice, the precondition that industrial action is ‘being engaged in’ has not been met – therefore, Commission not required to find whether industrial action is or is not protected action – Commission held no order to be made – applications adjourned for further report. ASC P/L v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
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