Case study: the Yallourn Power Station dispute 2012-2013
For the larger part of 2013, 75 CFMEU members employed at the Yallourn Power Station in the Latrobe Valley in Victoria were engaged in a bitter bargaining dispute with their employer.
Following months of fruitless negotiations, on 14 February 2013, the CFMEU gave notice to EnergyAustralia that its members employed at the Yallourn Power Station would be engaging in protected industrial action on 20 February 2013428 in pursuit of furtherance of their claims in respect to a new enterprise agreement.
The notified industrial action included a number of “bans” limiting the megawatt output of individual generators during specified periods of time. The notified action was based on a question approved in an earlier protected action ballot application that was not contested by the employer.
However, on 18 February 2013, EnergyAustralia brought on an urgent application in the FW Commission pursuant to s418 of the FW Act to stop or prevent its employees and the CFMEU from engaging in, or organising the proposed industrial action. One of the principal grounds advanced was that the section 414 notice notifying the commencement of the industrial action was “hopelessly ambiguous” in that it was not clear when the notified industrial action would cease. Therefore, based on the ‘defensive’ principle set out in Davids Distribution429 the employer could not properly organise its operations in order to respond to the protected action.
In the same application, EnergyAustralia also alleged that the s414 notice was defective and that the proposed industrial action was not protected, because the notice did not relate to industrial action that was endorsed by a protected action ballot of employees. This ground of opposition relied on a semantic argument about the precise meaning of the term ‘bans’.
That is, the protected action ballot question (approved overwhelmingly by CFMEU members) endorsed “bans limiting the output of individual generators”, whereas EnergyAustralia contended that the action being notified by the CFMEU on 14 February 2013 could not constitute ‘bans’ because it involved ‘positive acts’ on the part of employees, and not simply a refusal to do something. The “positive acts” contended by the EnergyAustralia, simply involved the operator employees inputting a lower megawatt production level into the computers that controlled the power generators.
Somewhat surprisingly, the semantic argument concerning the meaning of ‘bans’ initially received a respectful hearing in the FWC, notwithstanding the CFMEU submission that the term ‘ban’ was satisfied because the employees were “banning” any direction by the employer to work inconsistently with the decision to limit output set out in the s414 notice.
As with most section 418 applications, the EnergyAustralia application came on urgently and late in the day. Following several hours of hearing, Commissioner Bissett granted an interim order to EnergyAustralia pending a final determination of the application.430 However, in a subsequent decision issued on 21 February 2013, Commissioner Bissett found against EnergyAustralia in its s418 application and rescinded the interim order issued on 19 February 2013.431
On Friday 22 February 2013, EnergyAustralia lodged an appeal of Commissioner Bissett’s decision and sought an urgent hearing. As a result, an appeal Bench was constituted the following Monday 25 February 2013.
The Full Bench heard the appeal and in a unanimous decision in transcript decided to refuse permission to appeal.432 Subsequently, the Full Bench issued written reasons for its decision, in which it dismissed each of the grounds of appeal, including some arguments that were not raised at first instance before Commissioner Bissett.433
Following its failure in the FW Commission, EnergyAustralia sought an urgent injunction in the Victorian Supreme Court on 6 March 2013 on largely the same grounds ventilated before Commissioner Bissett and the Full Bench.
The interlocutory application was heard by Justice Hollingworth of the Supreme Court of Victoria on 8 March 2013. On 13 March 2013, the Court granted the application by EnergyAustralia and ordered the CFMEU and its members to not engage in the challenged industrial action pending the determination of the proceedings alleging tortious interference in the contracts of employment of CFMEU members employed by EnergyAustralia by the union.
Therefore, notwithstanding that four members of a specialist industrial tribunal had already found that the impugned industrial action was legally protected by the FW Act, the Victorian Supreme Court decided that the protected action proposed by the CFMEU was not a ban as it involved ‘positive acts’ by employees and was therefore outside of the protection conferred by the FW Act.434
Following the issuing of the injunction by the Victorian Supreme Court, the CFMEU was forced to seek a further protected action ballot in which the questions posed (which by this stage were specifically crafted by senior counsel) would meet the Supreme Court definition of a ‘negative ban’ involving restrictions on the output of individual generators. The protected action ballot order was granted by Commissioner Lewin on 25 April 2013, notwithstanding the vigorous opposition of EnergyAustralia and its senior counsel over two days of hearing that spilled over into the Anzac day public holiday.435
Following the recommencement of protected industrial action after the second protected action ballot of employees was conducted, the dispute at Yallourn Power Station escalated to the point where EnergyAustralia locked out 75 CFMEU operators from 21 June 2013 until 30 September 2013.
Over the course of the 15 weeks of the lockout, there were intensive negotiations both under the auspices of the FWC and directly between the parties. Eventually in late September 2013, there was a breakthrough in negotiations with an in-principle agreement reached that delivered most of the claims sought by the CFMEU and its members. During the whole of the 15 weeks of the lockout neither the CFMEU nor the employer sought to terminate the lockout on grounds of serious economic harm, or damage to the economy.
As part of the settlement of the dispute with the CFMEU, EnergyAustralia withdrew its Supreme Court application on 15 November 2013, following the approval of the new enterprise agreement by employees. The FWC subsequently approved the new enterprise agreement on 28 November 2013.436
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