[2022] FWC 2817

The attached document replaces the document previously issued with the above code on 20 October 2022.

Corrections made to formatting and typographical corrections made to the appearances, paragraphs [5], [22], [37] and [49], and footnote 13.

TF

Associate to Deputy President Beaumont

Dated 29 December 2022

[2022] FWC 2817
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.

OGS Australia Pty Ltd
v
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
&
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2022/7004) & (C2022/7005)

DEPUTY PRESIDENT BEAUMONT

PERTH, 20 OCTOBER 2022

Application for order under s.418 to stop industrial action – consideration of s.414(3) and the word ‘after’

[1] On 19 October 2022, OGS Australia Pty Ltd (the Applicant) made applications under s 418(1) of the Fair Work Act 2009 (Cth) (the Act) for orders that unprotected industrial action stop or not occur. The parties are not currently covered by an enterprise agreement. However, it is uncontroversial that there is a notification time 1 and the parties are bargaining for an enterprise agreement.2

[2] I heard the applications together on Thursday, 19 October 2022. None of the parties objected to this course and given that the applications were premised on the same legal argument and factual matrix, I considered it was the appropriate approach to take.

[3] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturing Workers’ Union or AMWU) tendered a witness statement of Mr Daniel Hannan, State Organiser of the AMWU. Neither the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) nor the Applicant, tendered evidence. Mr Hannan was not required for cross examination. Several paragraphs of Mr Hannan’s witness statement were struck out on the basis of relevance and opinion. Further, while the Applicant took objection to additional paragraphs of Mr Hannan’s witness statement (paragraphs 21-25), those paragraphs were retained on the basis of providing context, albeit their relevance did not extend to illuminating the interpretation of the legislative provision in contention.

[4] Turning to the contentious issue. It is discrete. It concerns the written notices of intention to take employee claim action. At 14:52 (AWST) on 12 October 2022, the Unions (CEPU and AMWU) provided written notices (Notices) 3 of the Employees’ intention to take various forms of industrial action (Action).

[5] The Applicant contends that the Notices do not meet the requirements of s 414(3) of the Act and are therefore invalid. The basis of the Applicant’s assertion turns on its interpretation of s 414(3) in light of s 36(1) of the Acts Interpretation Act 1901 (Cth) (AIA). 4 It submits that a notice of employees’ intention to take industrial action cannot be provided until the day after the ballot results are declared, as the time allowed for the notice to be provided is reckoned exclusive of the day the ballot results are declared.

[6] The Applicant’s interpretation of s 414(3) means that when calculating time for the purpose of s 414(3) of the Act, the day on which the relevant event (i.e. the declaration of the protected action ballot results) occurs, is not to be counted. According to the Applicant, as the results of the protected action ballot were declared on 12 October 2022, in accordance with s 36(1) of the AIA the notice of the employees’ intent to take employee claim action cannot be given until, at the earliest, the day after the results are declared (i.e. 13 October 2022).

[7] It is on this ground that the Applicant claims that any Action taken in reliance of the Notices will, therefore, be unlawful industrial action as it does not meet the common requirements. 5

The dispute

[8] The relevant background is largely uncontentious.

[9] On 23 September 2022, Vice President Catanzariti made a protected action ballot order. 6 The group of employees to be balloted was specified to be employees of OGS Australia Pty Ltd ‘who will be covered by the proposed enterprise agreement and are represented by the bargaining representative who is the applicant for this protected action ballot order’.

[10] According to the Applicant, the protected action ballot was conducted by an independent ballot agent, who declared the results at 14:18 (AWST) on 12 October 2022. Mr Hannan provided evidence that at 14:18 on 12 October 2022, the AMWU received the Declaration of Results from the ballot agent Democratic Outcomes Pty Ltd (the Declaration). 7 The Declaration stated its date as ’12 October 2022’, and the ‘Final Ballot Audit: Wednesday, 12 October 2022 at 2.15pm AWST’.8

[11] As observed, at 14:52 (AWST) on 12 October 2022, the Unions provided Notices 9 of the Employees’ intention to take various forms of Action.

[12] On 18 October 2022, the Applicant wrote to the Unions demanding that it withdraw the Notice and cease organising the Action. 10

[13] On 18 October 2022, the Unions responded to the letter of demand, disagreeing with the Applicant’s interpretation of s 414(3) of the Act. 11

[14] It is apparent from evidence, and is undisputed by the Unions, that the Action is at the least being organised, and is probable or impending. Further, it is uncontroversial that the Applicant is a person affected by the Action. Clearly, if the Action occurs, the Applicant’s operations will be impacted by virtue of the fact that the employees engaged to perform work for the Applicant, will not perform such work. Accordingly, the Applicant has standing to bring this application. 12

Legislative framework

[15] At this juncture it is convenient to consider the relevant legislative regime. Division 4 of Chapter 3 – Part 3-3 of the Act provides relevantly as follows:

[16] Under s 408 of the Act, industrial action is protected industrial action for a proposed enterprise agreement if it is employee claim action as defined by s 409. That action is defined as follows:

[17] This application relies upon the notice requirements as established in relation to protected industrial action by the common requirements (Subdivision B) and, in particular, s 414 of the Act. Section 414 is seen as a critical part of the scheme established by Part 3-3 Division 2 of the Act for the taking of protected industrial action – that is, industrial action which enjoys the degree of legal immunity conferred by s 415. 13 Section 413 identifies a number of ‘common requirements’ which must be satisfied in order for industrial action to be protected. Compliance with s 414 is established by s 413(4) as one of those common requirements and is therefore a precondition for industrial action to be protected under the Act.14

[18] Relevantly section 414 reads:

[19] To constitute employee claim action the industrial action must be authorised by a protected action ballot. 15 Subdivision D of Part 3-3 at s 459 outlines the circumstances in which industrial action is authorised by a protected action ballot. For present purposes, s 459(1) is relevant:

[20] Section 457 of the Act speaks to the declaration of a protected action ballot and its issuance. It sets out:

[21] Insofar as the reckoning of time is relevant, s 40A(1) of the Act provides that the AIA as in force on 25 June 2009 applies to the Act, and amendments to the AIA made after that day do not apply to the Act. 16 Section 36(1), the relevant part for the purpose of this dispute, reads:

Consideration

[22] Briefly stated, section 418 provides that if it appears to the Commission that industrial action by one or more employees or employers that is not, or would not be, protected industrial action is happening, or threatened, impending or probable, or is being organised, the Commission must make an order that such action stop, not occur or not be organised – as the case may be. For the following reasons I have declined to make such an order.

[23] In considering the relevant statutory provisions at issue in this dispute the starting point is to construe the words of the statute according to their ordinary meaning having regard to the context and legislative purpose. 17 Context includes the existing state of the law, the mischief the legislative provisions were intended to remedy, and the legislative history.18

[24] The plurality in SZTAL v Minister for Immigration and Border Protection (SZTAL) 19 described the contemporary approach to statutory construction:

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. 20 (footnotes omitted)

[25] The observations of Gageler J in SZTAL are also important:

The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility “if, and in so far as, it assists in fixing the meaning of the statutory text”.

The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from “a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural” , in which case the choice “turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies”.

Integral to making such a choice is discernment of statutory purpose. The unqualified statutory instruction that, in interpreting a provision of a Commonwealth Act, “the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation” “is in that respect a particular statutory reflection of a general systemic principle. 21 (footnotes omitted)

[26] These principles seem to be uncontroversial. I should also note however, that s 15AA of the AIA, as in force on 25 June 2009, provides:

[27] The object of the Act is set out in s 3 of the Act. I do not intend to repeat it, with the exception that what is contemplated is the provision of ‘clear rules governing industrial action’. 22 The Act also informs what the Commission is obliged to take into account when exercising its powers in relation to a matter, including the objects of the Act or its parts,23 and equity, good conscience and the merits of the matter.24

[28] Section 414(3) refers to the notice referred to in s 414(1) not being given until after the results of the protected action ballot for the employee action have been declared. The Applicant’s argument centres on what one makes of the word ‘after’.

[29] Fundamentally, what is in dispute between the parties is whether notice of a bargaining representative’s intention to engage in industrial action in accordance with s 414(3) of the Act can be delivered on the day that the results are declared, or cannot be provided until (at the earliest), the following day.

[30] The Applicant says that it is the latter, submitting that for a notice under s 414(3) to be valid, it cannot be provided any earlier than the day after the results of the vote are declared by the ballot agent. It argues that an examination of the text, and construction of the Act in accordance with the AIA, makes out its proposition.

[31] The Applicant presses that section 414(3) prescribes the period of time after which a bargaining representative may give written notice of an intention to take industrial action. That is, it prescribes a period of time (being the time after the ballot results have been declared), by which an action (provision of written notice of intention to take industrial action) is allowed. That being the case said the Applicant, it must be construed in line with the AIA.

[32] The CEPU argues that the Applicant’s claim is entirely without merit. It observes that by the Applicant’s own admission, the results of the ballot were declared on 14:18 (AWST) and the Notice was provided on the same day at 14:52 (AWST). It follows that the Notice was clearly given after the Declaration.

[33] The CEPU submitted that s 414(3) does not prescribe or allow any period of time. Rather, it sets a condition precedent to the issuance of a notice, being the declaration of results. The CEPU again pressed that there is no period of time which must pass before a notice is issued. On that basis, argued the CEPU, s 36(1) of the AIA is irrelevant.

[34] The CEPU further submitted that in any event, the provisions of the AIA are displaced by contrary intention. It argued that the clear intention of s 414(3) is to set a condition precedent rather than allow a period of time. This, said the CEPU, is apparent when one considers it is conjunction with s 459(1)(d) of the Act, which requires industrial action to commence in the 30 day period ‘starting on the date of the declaration of the results of the ballot’. The CEPU submitted that it would not make any sense to prescribe a 30-day period commencing from the day, presumedly, from when industrial action can be taken, while requiring that notices cannot be given until the day after the ballot results.
[35] The submissions of the AMWU were not dissimilar to those of the CEPU, with the AMWU noting that the ordinary meaning of ‘after’, as defined in the Macquarie Dictionary, means:

[36] Before the hearing, I alerted the parties to the decision of the Full Bench in Construction, Forestry, Maritime, Mining and Energy Union v DP World Melbourne Limited and Others (DP World). 26 In that decision, the Full Bench considered the reckoning of time as relevant to the making of interim orders under s 420 of the Act. That section provides that the Commission must determine an application for an order under ss 418 or 419 within two days after the application is made. If unable to do that, and after having satisfied other requisites (such as the making of certain findings and being satisfied that such order would not be contrary to the public interest), the Commission must make an interim order. One of the issues in DP World was the reckoning of time regarding the two days in s 420(2).

[37] At paragraph [41] of DP World the Full Bench observed that the scheme established by Part 3-3 of the Act shows that time for doing of an act is to be reckoned by different units of measurement, such as ‘days’, ‘working days’ and ‘hours’, depending on the nature of the act that is to be undertaken. At paragraphs [45] and [46] the Full Bench stated:

As should be apparent from the analysis of the various provisions of the Act in which time is to be reckoned, the legislature has been very clear to use “days”, “working days” and “hours” for the purposes of determining the time within which certain acts must be undertaken. The juxtaposition of s.441(1) with its requirement that a protected action ballot order application be determined as far as practicable “within 2 working days after the application is made” with s.440 requiring service of the application within “24 hours after making an application” is both telling and indicative of a legislative intention that a “day” means an indivisible calendar day and that when under the Act time is to be reckoned by “hours” rather than by “days”, “hours” is stipulated.

We do not discern a contrary intention so as to displace the application of s.36(1) of the AI Act upon s.420(1) of the Act. Indeed, the deliberate and separate use of “days” and “hours” confirms that s.36(1) of the AI Act has work to do.

[38] What distinguishes DP World to the case in point, is that the Full Bench interpreted a section of the Act that provided a ‘period of time’, such that the application under s 418 was required to be determined ‘within 2 days’ after the application was made. Section 414(3) does not to expressly contemplate such a period – whether days, working days or hours.

[39] The Applicant referred the Commission to the decision of Commissioner Bisset in James Cook University v National Tertiary Education Industry Union (NTEIU). 27 In NTEIU, the applicant led an argument that the industrial action would not be protected industrial action because it had not been authorised in accordance with the requirements of s 459 of the Act.

[40] As noted, s 459(1)(d)(i) of the 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’. In NTEIU, the Commissioner expressed that the wording in this section clearly fell within the exception provided for in s 36(1) of the AIA – that is, s 459(1)(d)(i) evinced a contrary intention so that the day the ballot is declared is the first day of the 30 day period.

[41] The Applicant relied upon NTEIU to assert that it could not be said that a contrary intention is evinced on the words of the statute, referring to s 414(3).

[42] There are two points to make with respect to NTEIU. First, s 459(1)(d)(i) expressly refers to a period of time, namely, the ’30-day period starting on date of the declaration of results’. As was identified by the Commissioner, the subsection identifies a specific starting date for the counting or reckoning of time. It is therefore unsurprising that the Commissioner reached the conclusion that the date the declaration was made, was day one (or the first day) of the 30 day authorisation period – and that the section evinced an intention contrary to time being reckoned exclusive of the day of the act or event.

[43] The second observation is, if the Applicant’s construction of s 414(3) is adopted, then, whilst s 459(1)(d)(i) provides for industrial action to be authorised by a protected action ballot in circumstances where the action commenced during the 30-day period starting on the date of the declaration of result of the ballot, the notice under s 414(3) would not be able to be issued until the day after the declaration of the results of the ballot. It appears odd that the 30 day period in s 459(1)(d)(i) would commence to run on the date of the declaration of results but the notice under s 414(3) could not be given, at least, until the next day. Effectively, a day may be lost in the 30 day period where a party may take industrial action the subject of the ballot.

[44] Understandably, the word ‘after’ is used on multiple occasions within the Act. In respect of Part 3-3, the word ‘after’ is used in circumstances to indicate periods such as ‘2 days after the application is made’, 28 ‘determine the application within 5 days after it is made’,29 ‘within 24 hours after making an application for a protected action ballot order’,30 and ‘determine an application for a protected action ballot order within 2 working days after the application is made’.31 In these examples, it is evident that a period of time is referenced.

[45] However, Part 3-3 also references the word ‘after’ in the following context:

[46] Section 445 clearly compels the Commission to provide copies of a protected action ballot order to certain persons. It informs the Commission that this is to be done ‘[a]s soon as practicable after making a protected action ballot order’. 32 The words of the section provide no express limitation that such a step cannot be taken on the day the protected action ballot order is made. It appears that as long has the protected action ballot order has been made (the precondition), the Commission must provide that order ‘as soon as practicable’, but effectively only after making the requisite order – clearly there would be nothing to provide were the order not made.

[47] Sections 447(3)(b) refers to the phrase ‘after that time’, and thereafter in Part 3-3 there are further references to ‘as soon as practicable after’,  33 ‘after the industrial action is organised or engaged in’,34 ‘after the vote has been made’,35 ‘after the day on which the protected action ballot closed’,36 and ‘the start of the next day, after the day on which the notice was given’.37

[48] It is evident from the latter two examples, that within Part 3-3 some sections stipulate that the day of the ‘event’ is not the ‘trigger’ so to speak, but instead it is ‘after the day’. To rephrase, in Part 3-3, the Act expressly prescribes if the day of the event is not to be counted but instead counting is to occur from the next day. This sits in contrast to s 414(3) where no such clarification is provided:

[49] Section 457 obliges the protected action ballot agent to make a declaration of the results of the ballot and to inform certain persons of those results. The protected action ballot agent is required to take such steps ‘as soon as practicable after the voting for the protected action ballot closes’. As to the timing of when a declaration comes into existence, s 457(1)(a) speaks of making a declaration of results and s 457(1)(b) of informing certain persons. Clearly once those certain persons are informed, whether they be the applicant or the employer of the employees to be balloted, the ‘event’ has occurred for the purpose of s 414(3) – at which time, in my view, a notice under s 414(3) may be given. There is no indication in the Act that the requisite ‘declaration’ is dependent on the publication of the protected action ballot results on the Commission’s website. 38

[50] When regard is had to the natural and ordinary meaning of the word ‘after’ and the context and purpose of Part 3-3 is considered, s 414 speaks to the order of events and the requirements in respect of the provision of a notice for industrial action. It sits within the scheme for taking protected industrial action. Section 414(3) does not include a period of time (for example ‘within two days’ or the like) where the reckoning of time runs from the day after the event, it does however provide a precondition as to when the notice can be given. The precondition in s 414(3) does not expressly constrain giving the notice such that it cannot be given until the day after the results of the protected action ballot for employee action have been declared. Further, insofar as it is relevant, s 414(3) does not appear to require that the notification occur ‘immediately after’ the declaration – as clearly that might prove impracticable.

Conclusion

[51] As was emphasised by the parties at hearing, the Commission must make an order that the industrial action stop, not occur or not be organised for a period specified in the order, if it appears that the industrial action is not, or would not be protected industrial action. To reach that state of satisfaction, it is clearly necessary to engage with the Applicant’s argument regarding its construction of s 414(3) of the Act and the alternative construction proffered by the Unions. Having considered all materials filed, it does not appear to me that the industrial action would not be protected industrial action. It follows that the applications made pursuant to s 418 in matters C2022/7004 and C2022/7005, are dismissed. An Order 39 issues concurrently with this decision.

[52] Finally, I appreciate that the AMWU has adopted a past practice of sending out a ‘notice’ on the same day as receiving the declaration of results of the protected action ballot. I further understand it holds a level of consternation regarding what may occur more broadly, should the Commission prefer the construction advanced by the Applicant. However, in the circumstances of this case, these factors carry no weight.

al of the Fair Work Commission with member's signature.

DEPUTY PRESIDENT

Appearances:

Mr A. Aghazarian on behalf of the CEPU;

Ms V. Rabeling on behalf of the AMWU;

Mr S. Rogers of Mills Oakley on behalf of the Applicant.

Hearing details:

Wednesday 19 October 2022

Video (via Microsoft Teams)

Printed by authority of the Commonwealth Government Printer

<PR747021>

 1   PR741090; [2022] FWC 988.

 2   Witness Statement of Daniel Hannan (Hannan Statement) [8].

 3   Form F14 – Application for an order to stop etc (unprotected) industrial action Annexure OGS-1 (Form F14).

 4   Acts Interpretation Act 1901 (Cth) (as it was in force at 25 June 2009).

 5   Fair Work Act 2009 (Cth) s 413(4) (the Act).

 6   PR746146; Hannan Statement (n 2) [6], Annexure DH-6.

 7   Hannan Statement (n 2) [15].

 8   Ibid Annexure DH-6.

 9   Form F14 (n 3) Annexure OGS-1.

 10   Ibid Annexure OGS-2.

 11   Ibid Annexure OGS-3.

 12   The Act (n 5) s 418(2)(b)(i).

 13   Thiess Pty Ltd v Construction, Forestry Mining and Energy Union [2015] FWCFB 5530, [65].

 14   Ibid.

 15   The Act (n 5) s 409(2).

 16   Ibid s 40A(2).

 17   Construction, Forestry, Mining and Energy Union v Deputy President Hamberger (2011) 195 FCR 74, [70], citing Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, [14]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408.

 18   See Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619, [59]; Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FWCFB 2042, [26]-[37].

 19   (2017) 262 CLR 362 (SZTAL).

 20   Ibid [14] (Kiefel CJ, Nettle and Gordon JJ); see also Australian Mines and Metals Association Inc v CFMMEU (2018) 268 FCR 128 223, [76] – [86].

 21   SZTAL (n 19) [37]-[39] (Gageler J).

 22   The Act (n 5) s 3(f).

 23   Ibid s 578(a).

 24   Ibid s 578(b).

 25   Macquarie Dictionary (4th ed, 2005), 23.

 26   [2019] FWCFB 6430 (DP World).

 27   [2017] FWC 4976 (NTEIU).

 28   The Act (n 5) s 420(1).

 29   Ibid s 424(3).

 30   Ibid s 440.

 31   Ibid s 441(1).

 32   Ibid s 445.

 33   Ibid ss 451(2), 452(2), 457(1), 457(2).

 34   Ibid s 460(1)(c)(ii).

 35   Ibid s 462(1)(o)(ii).

 36   Ibid s 468(2).

 37   Ibid s 471(5)(a)(ii).

 38   Ibid s 457(2).

 39   PR747029.