[2009] FWAFB 1698 |
FAIR WORK AUSTRALIA |
DECISION |
Fair Work Act 2009
s.604—Appeal of decisions
JUSTICE GIUDICE, PRESIDENT |
MELBOURNE, 15 DECEMBER 2009 |
Appeal – notice of industrial action – whether notice specified nature of action – permission to appeal – Fair Work Act 2009 ss.414, 418 and 604 – Workplace Relations Act 1996 s.170MO(5).
[1] This is an appeal, for which permission is required, under s.604 of the Fair Work Act 2009 (Fair Work Act) against a decision made by Vice President Lawler on 5 December 2009. 1 In that decision the Vice President refused an application by Telstra Corporation Limited (Telstra) for an order under s.418 of the Fair Work Act in relation to industrial action of which notice had purportedly been given by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). The Vice President heard the application on 4 December 2009. His Honour gave his decision and short reasons at the conclusion of the hearing and also indicated that he would issue a formal decision. The formal decision was issued on 5 December 2009.
[2] Division 2 of Part 3-3 of the Fair Work Act provides for protected industrial action for a proposed enterprise agreement. Section 418 provides that Fair Work Australia must make an order that industrial action stop or not occur if it is satisfied that the industrial action is not, or would not be, protected industrial action. It is not necessary to set out the terms of s.418. Section 414 of the Fair Work Act, with which the appeal is directly concerned, deals with the notice requirements for industrial action. It is common ground that, pursuant to s.413(4), industrial action is not protected action unless the notice requirements in s.414 have been met. Section 414(1) provides that a bargaining representative must give written notice of employee claim action, s.414(2) that the notice must be at least three working days and s.414(6) that the notice must specify the nature of the action and the day on which it will start. The section reads:
“414 Notice requirements for industrial action
Notice requirements—employee claim action
(1) Before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.
(2) The period of notice must be at least:
(a) 3 working days; or
(b) if a protected action ballot order for the employee claim action specifies a longer period of notice for the purposes of this paragraph—that period of notice.
Notice of employee claim action not to be given until ballot results declared
(3) A notice under subsection (1) must not be given until after the results of the protected action ballot for the employee claim action have been declared.
Notice requirements—employee response action
(4) Before a person engages in employee response action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.
Notice requirements—employer response action
(5) Before an employer engages in employer response action for a proposed enterprise agreement, the employer must:
(a) give written notice of the action to each bargaining representative of an employee who will be covered by the agreement; and
(b) take all reasonable steps to notify the employees who will be covered by the agreement of the action.
Notice requirements—content
(6) A notice given under this section must specify the nature of the action and the day on which it will start.”
[3] The background to the application is set out in the decision. In late November and early December 2009 the CEPU gave Telstra several notices of industrial action under s.414(1). The issue which arose was whether the notices complied with s.414(6).
[4] The notices in question may be referred to as dealing with unlimited national stoppages. While there were a number of such notices (relating to different dates), it is enough to refer to one of them. The notice dealing with the industrial action to be taken on 2 December 2009 is, where relevant, as follows:
“The employee claim action will take the form of an unlimited number of indefinite stoppages of work by those CEPU members whose normal place of work is all States and Territories of Australia.
The employee claim action will occur between the hours of 12.01am and 11.59pm on Wednesday 2 December, 2009.”
[5] Telstra’s case, both before the Vice President and on this appeal, is that notices in this form do not comply with s.414(6). For that reason any industrial action taken pursuant to the notices is not protected industrial action and can be dealt with by an order pursuant to s.418. There is evidence that Telstra employs over 34,000 employees in hundreds of worksites across Australia and that it does not know which of its employees are CEPU members. It was submitted that, seen in the context of Telstra’s undertaking, the notice does not “specify the nature” of the industrial action which the CEPU will take. Telstra focussed in particular on the words “unlimited number of indefinite stoppages” and on the fact that the industrial action was said to extend to all CEPU members employed by Telstra in Australia.
[6] It was further contended that the term “indefinite stoppage” is by nature too vague and could never amount to a specification for the purposes of s.414(6). Telstra supported its position by contrasting the language of s.414(6) with the language of the predecessor provision in s.170MO(5) of the Workplace Relations Act 1996 (WR Act). 2 Section 170MO(5) read as follows:
“170MO Notice of action to be given
……
(5) A written notice or other notification under this section must state the nature of the intended action and the day when it will begin.”
[7] While the two provisions are very similar the earlier provision used the word “state” which has been replaced in the later provision with the word “specify”. It was submitted that the change in language indicates a legislative intention that greater definition and particularity is required in a notice under s.414(6) than was required under s.170MO(5). Counsel for Telstra also relied upon a range of authorities dealing with the construction of the term “specify”, the construction of other relevant provisions and s.414(6) itself.
[8] The CEPU submitted that the notices satisfied the requirement to specify the nature of the industrial action. It contended that Telstra was aware from the notice that there would be an unlimited number of indefinite stoppages throughout Australia on the specified day and that was sufficient. It contended that the section does not require the union to provide detailed particulars of the action, only the nature of the action which it intends to take. Counsel for the CEPU went on to submit that the evidence shows that Telstra had not indicated it was unable to respond to action taken pursuant to the notice, although counsel conceded that the evidence does show that Telstra regarded it as extremely difficult to respond and that its ability in that regard was compromised.
[9] We deal at the outset with whether permission should be granted to appeal. Telstra submitted that the CEPU has issued a number of notices in the relevant form as part of a campaign for an enterprise agreement and that we should accept that more will be issued as agreement has not yet been reached. It also submitted that the appeal raised important questions about the interpretation of s.414(6) which had not previously come before a Full Bench.
[10] The CEPU advanced three reasons why permission ought not be granted to appeal. First it submitted that the argument based on the distinction between the language in s.170MO(5) and s.414(6) had not been relied upon before the Vice President. Secondly, it submitted that the only notices of the relevant kind in evidence relate to industrial action to take place on dates which have already passed. On this basis it was said that there was no point to the appeal since no order could be made under s.418. Thirdly, it submitted the Vice President’s decision was based on relevant authority and was not affected by error.
[11] Counsel for Telstra expressed their apprehension that the CEPU campaign would continue and that notices would be given in the same form. The CEPU did not give any indication to the contrary. While there is no current notice before us, we think that in the circumstances permission ought be granted to appeal. There is at least a possibility that more notices will be issued in the relevant form, if they have not been already, and it is desirable that there be a decision at Full Bench level on some of the issues of general significance which both parties have raised. The minimum period of notice required by s.414(2) is three working days. It will be rare for a Full Bench to be in a position to make a determination as to the adequacy of a notice under s.414(6) before the relevant industrial action has occurred. We are satisfied that it is in the public interest to grant permission to appeal and we do so.
[12] Before turning to the notice in this case it is appropriate to make some observations about the construction of s.414. The first point to note is that the obligations in ss.414(1) and (6) are not cast in terms of an intention to take industrial action but in more positive terms. This is a point of contrast with the language of s.170MO of the WR Act, exemplified by s.170MO(5) which we have set out above. The second point is that in considering whether the notice meets the requirement to specify the industrial action, it is necessary to have regard to the purpose of the notice requirement and the relevant circumstances, in particular the nature of the employer’s undertaking. As to purpose, there is little doubt that the purpose of the notice requirement is to give the employer the opportunity to respond to the action by making relevant preparations. The response may involve making arrangements to deal with unavailability of labour, including making appropriate arrangements in relation to customers, suppliers and other contractors. Whether the notice is adequate may depend on the nature of the employer’s operations including their size, the number of employees, the number of locations, the time at which the action is to occur and the employees potentially taking the industrial action. The following passage from the reasons for decision in David’s Distribution Pty Ltd v National Union of Workers, a case concerned with the interpretation of s.170MO(5), is apposite:
“[87] We think s 170MO(5) was designed to ensure that industrial disputants who are to become affected by protected action, in relation to which their usual legal rights are significantly diminished, are at least able to take appropriate defensive action. For example, an employer may operate a sophisticated item of equipment that will be damaged if precipitately shutdown. If warned in advance of a ban that might affect the continued operation of that plant, the employer might choose a controlled shutdown during the period of the notice. More commonly, perhaps, an employer might use the notice time to communicate with suppliers and customers, and thereby reduce the consequences for them of the notified industrial action. Very often, the recipient of the notice will respond in a way that has a legal dimension. For example, a union might react to a notice by an employer of intent to lock out some employees by giving notice that all employees will strike indefinitely as from the commencement of the lockout. Similarly, an employer might respond to an employees' notice of bans by giving notice of a lockout of some or all employees.” 3
[13] In considering the adequacy of the notice in this case, the relevant context is that Telstra employs around 34,000 employees in hundreds of work locations throughout Australia. While the evidence does not indicate the number of employees who are members of the CEPU, it is well known that there are many CEPU members and no doubt Telstra would have some idea of at least the areas in which CEPU membership is likely. It is obvious that the potential effect on Telstra’s operations of industrial action by CEPU employees could be very significant.
[14] The expression used in the notice of “indefinite stoppages” refers to a concept which is well recognised in workplace relations of a stoppage which is unlimited in time at its commencement. We reject the suggestion, advanced on Telstra’s behalf, that a notice of an indefinite stoppage could never comply with the requirement in s.414(6) that the action be specified. Whether it does comply will depend on the context in which it appears in the notice and the surrounding circumstances. In this case the use of the expression does very little to shed light on the nature of the action to be taken. First, the expression is used in the plural. This indicates that there will not be one stoppage of all CEPU members, but that there will be a number of them, thereby raising questions about the precise number and the location of the stoppages. Secondly, the expression is used in the notice in conjunction with the words “an unlimited number”. Read as a composite phrase the potential for variation in the number, length and location of stoppages is very wide.
[15] The indication that the action will be taken by CEPU members “in all States and Territories of Australia” might be an adequate specification if the type of action was defined more clearly. As it is, when the notice is read as a whole, the number, length and location of the stoppages which might occur are almost unlimited. The notice does no more than specify that there will be stoppages of an indeterminate number and length at locations at which CEPU members work.
[16] We respectfully disagree with the Vice President’s conclusion that the notice specifies action involving all CEPU members at all worksites and that such a notice specifies the nature of the industrial action and complies with s.414(6). We refer to the reasons we have already given but some additional comments are appropriate. As we have indicated, it is implicit that the description of the action contained in the notice should be sufficient to put the employer in a position to make reasonable preparations to deal with the effect of the industrial action. In order to prepare for all eventualities contemplated by the notice in this case, Telstra would have to plan on the basis that every CEPU member would be on strike for the whole of the day in question. Yet that is not what the notice says. Given the nature of Telstra’s operations some greater specification would be required. Indeed, on one view the notice conceals more than it reveals about the industrial action that will in fact occur.
[17] In our view the formulation in the relevant notices fails to “specify the nature of the action” and does not meet the notice requirements in s.414(6). In light of that finding any industrial action taken pursuant to such a notice would not be protected industrial action because the requirement in s.413(4) would not have been met. As there is no current notice before us, however, s.418 is not attracted and no order could or should be made under that section. In the circumstances the appropriate course is to make an order quashing the decision under appeal.
[18] In concluding it should be emphasised that whether a particular notice meets the requirements in s.414(6) will depend upon the terms of the notice and the industrial context . Every case is different and each notice must be looked at having regard to all of the relevant considerations.
PRESIDENT
Appearances:
F. Parry, SC with C O’Grady of counsel for Telstra Corporation Limited.
R. Reitano, of counsel, for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.
Hearing details:
2009.
Melbourne:
December, 11.
2 Later renumbered s.441 of the Fair Work Act 2009.
3 [1999] 91 FCR 463 at para 87 per Wilcox and Cooper JJ with whom Burchett J agreed on this aspect.
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