[2017] FWC 4976

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action

James Cook University
v
National Tertiary Education Industry Union
(C2017/5202)

COMMISSIONER BISSETT

MELBOURNE, 25 SEPTEMBER 2017

Application for an order to stop industrial action.

[1] On 20 September 2017 James Cook University (JCU) made an application to the Commission pursuant to s.418 of the Fair Work Act 2009 (FW Act) for the Fair Work Commission (Commission) to issue an order that industrial action being planned by the National Tertiary Education Industry Union (NTEU) with respect to its members at JCU stop.

[2] The grounds of the application are that the industrial action would not be protected industrial action because it has not been authorised in accordance with the requirements of s.459 of the FW Act.

[3] In the alternative JCU says that the action has not been notified with a level of particularity such that the requirements of s.414(6) of the Act have not been met.

[4] On 21 September 2017 I issued an Order 1 that industrial action not be organised. These are my reasons for that decision.

Background

[5] On 5 July 2017 an Order 2 for the protected action ballot (the ballot) was made. The ballot was declared on 24 July 2017.

[6] On 5 September 2017 the NTEU made an application pursuant to s.459(3) of the Fair Work Act 2009 (FW Act) to extend the 30 day period within which authorised protected industrial action may be taken. On 12 September 2017 I granted an Order 3 extending the 30 day period.

[7] On Monday 18 September 2017 the NTEU notified the Vice Chancellor of JCU of its intent to take industrial action (the first notice). The notification described the industrial action as:

A one-day stoppage of work commencing on Thursday 21 September 2017.

[8] Later that same day the NTEU sent a further notice to the Vice Chancellor (the second notice) in which it notified that the action notified in the first notice would cease and that industrial action would be taken in the form of:

A stoppage of work for twenty-four (24) hours commencing at 12.01am on Friday 22 September.

The industrial action is not authorised pursuant to s.459 of the FW Act

[9] For industrial action to be protected industrial action it must be authorised by a ballot of employees. For such action to be authorised s.459 of the Act states:

459 Circumstances in which industrial action is authorised by protected action ballot

(1) Industrial action by employees is authorised by a protected action ballot if:

(a) the action was the subject of the ballot; and

(b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and

(d) the action commences:

(i) during the 30-day period starting on the date of the declaration of the results of the ballot; or

(ii) if the FWC has extended that period under subsection (3)--during the extended period.

Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.

[10] As stated above on 12 September 2017 I issued an Order 4 granting a 30 day extension as sought by the NTEU.

[11] JCU submits that, despite the issue of the 30 day extension Order, the industrial action notified in the second notice is not authorised – and therefore not protected – because it purports to commence outside the extended authorisation period and has not previously commenced.

[12] If it is that the authorisation period ceased prior to the proposed date of industrial action and the industrial action has not otherwise commenced then the industrial action is not protected and the order sought must be issued.

The 30 day period

[13] Section 459(d)(i) of the FW Act states that the action must commence “during the 30-day period starting on the date of the declaration of the results of the ballot”.

[14] The ballot was declared on 24 July 2017.

[15] The FW Act states:

40A Application of the Acts Interpretation Act 1901

(1) The Acts Interpretation Act 1901, as in force on 25 June 2009, applies to this Act.

(2) Amendments of the Acts Interpretation Act 1901 made after that day do not apply to this Act.

[16] The Acts Interpretation Act 1901 (Cth) (AI Act) in force on 29 June 2009 states:

36 Reckoning of time

(1) Where in an Act any period of time, dating from a given day, act, or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or of the day of such act or event.

[17] Section 459(d)(i) of the FW Act states that for action to be authorised it must commence “during the 30-day period starting on the date of the declaration of the results of the ballot”. The wording of the FW Act falls clearly within the exception provided for in s.36(1) of the AI Act – that is, s.459(d)(i) clearly evinces a contrary intention so that the day the ballot is declared is the first day of the 30 day period.

[18] For this reason 24 July 2017 is day one of the 30 day authorisation period.

[19] On this basis the 30 day period expired on 22 August 2017. In the hearing for the application for an extension to the 30 day period the NTEU conceded that the 30 day period expired on 22 August 2017. 5

[20] An extension to the 30 day period granted pursuant to s.459(3) of the FW Act operates from the expiration of the 30 day period provided for in s.459(1)(d). In this case the 30 day extension commences from 22 August (i.e. on 23 August) 2017 and expires on 21 September 2017.

[21] A notice to commence industrial action on 22 September 2017 that is not otherwise authorised cannot be authorised and any action taken pursuant to such a notice is therefore not protected industrial action.

Has a 24 hour stoppage of work been otherwise authorised?

[22] It is not in dispute that the proposed 24 hour stoppage of work is to be taken pursuant to Question 1 of the questions on the protected action ballot declared on 24 July 2017. That question asked:

Do you approve the use of stoppages of work, being ten (10) minute stoppages and/or one-hour stoppages and/or 24-hour stoppages?

[23] The NTEU submits that, in notifying industrial action in the form of a one hour stoppage prior to 22 August 2017, it has effectively given notice with respect to Question 1 and any action taken in respect of that question is therefore authorised. That is, the NTEU says that, in giving notice of and taking action of a one hour stoppage, it has commenced any action it may then take pursuant to Question 1 of the protected action ballot.

[24] The NTEU relies on the decision of Senior Deputy President Kaufman in RMIT University v National Tertiary Education Industry Union 6 in which he found:

[22] Section 414(3) does not have the effect that the specific action the subject of the notice must have been commenced within the 30 day period following the declaration of the ballot. It is sufficient if that genus of industrial action had commenced within the 30 day period. There is no requirement that specific instances of it were commenced within that period. So much is clear form (sic) the judgment of Gyles J in United Collieries Pty Ltd v Construction, Forestry and Mining Union 7.

[25] The reliance on the decision in United Collieries Pty Ltd v Construction, Forestry and Mining Union (United Collieries) does not support a proposition that notification of intent to take industrial action on one of the options for action in Question 1 is enough to authorise the other, distinct, types of action in that question.

[26] The decision in United Collieries was concerned with whether a particular type of action authorised by a protected action ballot, having been taken once could be taken again after the 30 day period expired in circumstances where no specific date for the taking of the action was included in the ballot. Gyles J found that it was not necessary that each instance of industrial action be specifically authorised as long as the action itself (e.g. 24 hour stoppages of work) was authorised. This is the “genus” of industrial action to which Gyles J referred.

[27] Interestingly Gyles J also found that:

I do not accept the Union’s preferred argument that, as some industrial action commenced within the 30day period, all options approved by the ballot are now open. In my opinion, each separate question in the ballot relates to a different kind and nature of industrial action. That conclusion is consistent with the requirements of s 452 and s 463(1)(g) providing for the posing of a question or questions including the nature of the proposed action. 8

[28] JCU does not dispute that the NTEU has given notice of the intention to take one hour stoppages and that such action was properly authorised.

[29] JCU submits that, in this case, that the three alternatives were provided for in the one question does not imply that action taken with respect to one of those alternatives creates the necessary authorisation for each of the alternatives. It submits that the situation the NTEU has found itself in is just that cautioned by the Full Bench in John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union 9. Whilst the question meets the requirements of the FW Act uncertainty has now arisen in the notice given. That the ballo0t question is approved does not mean that any action taken pursuant to that question will be protected.

[30] JCU relies on the decision in Health Imaging Services Pty Ltd v Health Services Union. 10 In that matter Senior Deputy President Drake was considering matters associated with a single question asked in a protected action ballot that had a range of alternative actions listed. Only one of the range of alternative actions had been taken within the 30 day period. When the workers imposed further bans contained in the one question outside the 30 day period the employer sought, and was granted, an order that the action cease as it was not protected industrial action. In reaching her decision the Senior Deputy President observed:

…I do not believe that the form of the question altered the fact that the list of possible industrial actions contained in the single question were listed as alternatives from which, in the thirty days following the declaration of the ballot, the HSU members were to select their industrial action and implement it. Combining the possibilities of industrial action in one question as a list did not alter that situation. The plain English meaning is that the possible industrial actions were alternatives. Each “dot” point described a type of industrial action which could have been commenced during the thirty day period beginning on the date of the declaration of the results of the ballot and, if so commenced, could have continued throughout the bargaining period. 11

[31] In dismissing an appeal from that decision 12 the Full Bench of the Commission said:

We have concluded that on the proper construction of s 478(1) where a protected action ballot endorses a number of types of industrial action, a type of action which does not commence within the 30 day period provided for is not authorised by the ballot. Accordingly, if action of that type is subsequently taken, because of the operation of s 445 of the Act it will not be protected action. This conclusion is consistent with the reasoning of Gyles J in United Collieries Pty Ltd v Construction, Forestry, Mining and Energy Union to which we were referred. [Footnote omitted]

[32] For these reason the JCU submits that there is no authorisation for a 24 hour stoppage.

Consideration

[33] I am satisfied that Question 1 in the protected action ballot can be characterised as a range of options for stoppages that may or may not be taken. That each option was separated by the words “and/or” does not change this characterisation. The form of Question 1 falls squarely within the type of circumstance described in Health Imaging Services v HSU set out above and upheld on appeal. To this extent the authorisation of one of the options for a stoppage of work in question 1 does not authorise all of the options contained in that question. To conclude otherwise would allow an unlimited number of options to be put in a single ballot question and only require one of those option to be taken within the 30 day period for all options to remain “live”. This is a non-sensical outcome and would be contrary to Full Bench authority on the question.

[34] I find no support for the argument of NTEU in the decisions upon which it relies.

[35] I am satisfied that, for any of the options for stoppages of work within Question 1 of the ballot to be authorised, that specific action must have been taken within the 30 day period, extended to 60 days.

[36] A 24 hour stoppage of work has not been taken prior to the notification of intention to take such industrial action on Friday 22 September 2017 given by the NTEU on Monday 18 September 2017 in the second notice.

[37] Section 418 of the FW Act states:

418 FWC must order that industrial action by employees or employers stop etc.

(1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:

(a) is happening; or

(b) is threatened, impending or probable; or

the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.

[38] For the reasons given above I am not satisfied that there is authorisation for the 24 hour stoppage of work as the action will commence outside the extended 60 day period. The stoppages already taken of one hour duration do not provide the authorisation for a 24 hour stoppage. The proposed industrial action would therefore not be protected industrial action. I am further satisfied that the industrial action was being organised.

[39] Seal of the Fair Work Commission with member's signtaure.
For these reasons I granted the application of James Cook University and issued an Order. 13