THE Fair Work Commission (FWC) has allowed the CFMEU to proceed with protected industrial action at Helensburgh Coal despite its direct contradiction of an agreed ‘no industrial action’ period in the New South Wales mine’s expired Enterprise Agreement (EA).

Employers Metropolitan Collieries and Helensburgh Coal were bargaining with the CFMEU for a new EA for the 125-year-old coking coal mine, with the previous agreement expiring on June 30 but providing for a three-month period of no striking.

The CFMEU applied to FWC for a protected action ballot order, which was not opposed by the employers as long as the action did not commence before the agreed period of October 1.

After the CFMEU alerted its members that strike action would begin from September 18, Metropolitan Collieries made an application under s418 of the Fair Work act to suspend or terminate the action due to it being illegal under the ‘no industrial action three months’ clause in the EA.

The employer argued the CFMEU was not genuinely attempting to reach an agreement due to the breach of the agreed period of no industrial action, which it argued was a breach of good faith bargaining principles.

In dismissing the employer’s application to stop the CFMEU’s strike action, Senior Deputy President Harrison said that his only consideration was whether the union’s application to strike complied with the Act’s provisions around good faith bargaining and genuine attempts to reach agreement (ss.409-413).

SDP Harrison said that despite ‘serious concerns’ the union had breached its agreement to not strike for three months, he was satisfied the CFMEU met those conditions, namely that it was genuinely trying to reach an agreement and was negotiating in good faith.

“The question posed by the ordinary and natural meaning of the words is whether the CFMEU’s conduct and actions indicate that it is trying to reach an agreement and that it is genuine in its attempts to do so,” SDP Harrison said in his ruling.

“There is no issue that prior to 18 September 2013, the CFMEU had been genuinely trying to reach an agreement with the employer. I concluded that on the evidence the CFMEU was genuinely trying to reach agreement.

“Despite significant concerns which I expressed to the CFMEU about its actions being contrary to clause 3.3 of the agreement (no strike period) I was nonetheless satisfied that the requirements of s.413 were met and it had been genuinely trying to reach an agreement. As a consequence, the foreshadowed industrial action was protected.

Implications for employers

This FWC decision shows that if a union can demonstrate it had been negotiating in good faith and genuinely attempting to reach an agreement, the Commission may overrule any previously agreed clauses that restrict the taking of protected industrial action.

In this case, the CFMEU attempted to argue that the previously agreed ‘no protected industrial action’ clause was unlawful. SDP Harrison rejected this union claim but nonetheless ruled that because the union met all conditions under s.413 of the Act (genuinely attempting to reach agreement) that it should be allowed to proceed with protected industrial action regardless of the clause.

It should be noted that the employer did not submit any specific union actions or circumstances which it considered breached good faith bargaining principles – a move that was ultimately detrimental to its argument.

For more information, contact AMMA’s policy team via 1800 627 7711800 627 771.