[2010] FWAFB 1014

[2010] FWAFB 1014

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FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

National Tertiary Education Industry Union
v
University of South Australia
(C2009/11280)

JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT
DEPUTY PRESIDENT IVES
COMMISSIONER GAY

MELBOURNE, 14 APRIL 2010

Appeal against decision [2009] FWA 1535 and order of Senior Deputy President O'Callaghan to suspend protected industrial action.

[1] This is an appeal under s.604 of the Fair Work Act 2009 (the Act) by the National Tertiary Education Industry Union (NTEU) against a decision and order made by Senior Deputy President O’Callaghan on 4 December 2009.

[2] The matter before the Senior Deputy President concerned an application by the University of South Australia (the University) pursuant to s.424 of the Act for the suspension of protected industrial action being taken by the NTEU. The action included bans on the recording and transmission of examination results. The SDP found that these bans were threatening to endanger the welfare of graduating students and made an order suspending the protected industrial action. The SDP said:

“…the evidence of the University witnesses collectively supports the conclusion that the capacity of students to graduate, to successfully seek additional studies or obtain supported funding or employment, could all be impacted on by a delay in the recording and transmission of examination and assessment results. As I have already noted, the University may be able to ameliorate this. I accept that the evidence is that some subject results could be provided to students the day after they were recorded. However, a failure to meet the specified time deadlines for recording and transmission of results creates a very real risk that not all of the necessary overall course academic checks and administrative processes will be completed to allow for graduation on 22 December 2009 or for the publication of academic transcripts for employment, additional study and funding and visa purposes. This risk or threat goes beyond a potential inconvenience or disruption to the graduating student population as it reflects the potential for real and actual harm.

Consequently, I am satisfied that the protected industrial action, being the ban on recording and transmission of assessment and examination results, is threatening the welfare of graduating (University) students. Accordingly, section 424(1) means that an order suspending or terminating the protected industrial action must be made.”

[3] The order made by the SDP suspended the protected industrial action for a period of 14 days and made various directions to the NTEU and its members not to engage in industrial action. The order was to have effect for the period 4-18 December 2009.

[4] The main issue raised in the appeal relates to the proper construction of the power in s.424 of the Act to suspend or terminate protected industrial action. The Senior Deputy President decided that the section required that the suspension apply to all forms of protected industrial action being taken, and not just to the bans which endangered the welfare of the graduating students. The NTEU submitted that the Senior Deputy President was wrong in this construction of s.424 and that the order should have been restricted to the particular protected industrial action complained about and which was the subject of the evidence before him, namely the “results ban”. It was said that this was the only action which was found to have the effect of endangering the welfare of part of the community and that the order should have been confined to that action.

[5] The appeal proceeded on the basis that this was the key issue before the Full Bench. Written outlines of submissions were filed by the NTEU and the University and oral submissions were presented in proceedings on 11 February 2010 in Adelaide. Near the conclusion of the hearing on that day, a further issue was raised regarding the extent to which the order made by the SDP relied upon s.418 of the Act. The parties were given an opportunity to make further written submissions on this issue. The NTEU submitted that there was a denial of procedural fairness in the making of the order by the SDP in reliance on s. 418 and accordingly sought to amend its notice of appeal.

[6] The main issue in the appeal relates to s.424 of the Act which provides as follows:

“424 FWA must suspend or terminate protected industrial action—endangering life etc.

Suspension or termination of protected industrial action

(1) FWA must make an order suspending or terminating protected industrial action for a proposed enterprise agreement that:

(a) is being engaged in; or

(b) is threatened, impending or probable;

if FWA is satisfied that the protected industrial action has threatened, is threatening, or would threaten:

(d) to cause significant damage to the Australian economy or an important part of it.

(2) FWA may make the order:

(a) on its own initiative; or

(b) on application by any of the following:

(i) a bargaining representative for the agreement;

(ii) the Minister;

(iia) if the industrial action is being engaged in, or is threatened, impending or probable, in a State that is a referring State as defined in section 30B or 30L—the Minister of the State who has responsibility for workplace relations matters in the State;

(iib) if the industrial action is being engaged in, or is threatened, impending or probable, in a Territory—the Minister of the Territory who has responsibility for workplace relations matters in the Territory;

(iii) a person prescribed by the regulations.

Application must be determined within 5 days

(3) If an application for an order under this section is made, FWA must, as far as practicable, determine the application within 5 days after it is made.

Interim orders

(4) If FWA is unable to determine the application within that period, FWA must, within that period, make an interim order suspending the protected industrial action to which the application relates until the application is determined.

(5) An interim order continues in operation until the application is determined.”

[7] Section 424 provides that Fair Work Australia (FWA) must make an order suspending or terminating protected industrial action if it is satisfied that the action threatens to endanger the life, the personal safety, health or welfare of the population or part of the population or to cause significant damage to the Australian economy. The effect of making an order suspending or terminating protected industrial action is to bring to an end the right to take protected industrial action. This is achieved by the removal of the protection or immunity which would otherwise attach to the action. The termination of protected industrial action may also lead to FWA making a workplace determination under Part 2-5 of the Act (see ss.266 and 267).

[8] Within the scheme of the Act, the powers in relation to the suspension or termination of protected industrial action are intended to be used in exceptional circumstances and where significant harm is being caused by the action. This is clear from the Explanatory Memorandum to the Fair Work Bill 2008:

“The Bill recognises that employees have a right to take protected industrial action during bargaining. These measures recognise that, while protected industrial action is legitimate during bargaining for an enterprise agreement, there may be cases where the impact of that action on the parties or on third parties is so severe that it is in the public interest, or even potentially the interests of those engaging in the action, that the industrial action cease — at least temporarily.

It is not intended that these mechanisms be capable of being triggered where the industrial action is merely causing an inconvenience. Nor is it intended that these mechanisms be used generally to prevent legitimate protected industrial action in the course of bargaining.” [paras. 1708-1709]

[9] The provisions in the Act for the suspension or termination of protected industrial action are in certain respects similar to the scheme in the Workplace Relations Act 1996 (the WR Act) providing for the suspension and termination of bargaining periods. Under that legislation, the power given to the Australian Industrial Relations Commission was to terminate a bargaining period with the result that all industrial action being taken in support of claims would become unprotected.

[10] In the present case, it was submitted by the NTEU that the power in s.424 of the Act is significantly different from that relating to the termination of bargaining periods under the WR Act. It was said that the power in s.424 is a much more confined and precise power which is directed at the prevention of particular forms of third party harm. It is therefore only industrial action which causes the requisite harm that may be terminated or suspended by FWA under s.424 of the Act.

[11] We do not agree with this construction of the power in s.424. The use of the words “suspension” and “termination” of protected industrial action in the section may be contrasted with the power given to FWA in s.418 in relation to the making of orders to “stop” industrial action. The suspension of protected industrial action is to be construed as a suspension of the protection or immunity which attaches to the industrial action under the Act provided it is authorised in a protected action ballot etc. (see s.409). A reference in s.424 to the making of an order “suspending or terminating protected industrial action for a proposed enterprise agreement” would therefore seem to apply to protected industrial action which was authorised by the ballot, and not to the particular industrial action which is being taken as part of what might be a series of actions authorised by the ballot and which is having the requisite harmful effect.

[12] This reading of s.424 would accord with the wider scheme of the Act and, in particular, with the provisions which apply to the making of workplace determinations where an order has been made terminating protected industrial action (see s.266). It would be inconsistent with that scheme if further protected industrial action was able to be taken even though the jurisdiction for the making of an arbitrated determination was in train (see Ambulance Victoria v LHMU [2009] FWA 44, Kaufman SDP). There is no valid reason for adopting a fundamentally different interpretation of s.424 in respect of the power to suspend protected industrial action than is applied in relation to the termination power.

[13] In any event, we note that even if an order made under s.424 was confined to part only of the authorised industrial action, the effect of the order would be to render other industrial action unprotected. The common requirements that apply for industrial action to be protected industrial action are set out in Subdivision B of Division 2 of Part 3-3 of the Act. In particular, s.413(7)(a) provides that industrial action will not be protected industrial action for a proposed enterprise agreement if there is in operation “an order under Division 6 of this Part suspending or terminating industrial action in relation to the agreement”.

[14] We are therefore of the view that the approach adopted by the Senior Deputy President, in so far it relates to the making of an order suspending all the industrial action authorised by the protected action ballot, was in accord with the scheme of the Act.

[15] Whether in a particular case the exceptional circumstances for the making of an order suspending or terminating protected industrial action under s.424 of the Act have arisen will be a matter to be determined on a consideration of all the circumstances and having regard to the evidence and submissions before FWA. Although we might not have reached the same conclusion as the Senior Deputy President in the circumstances of the present case, we are of the view that the decision taken did not involve a misconstruction of the effect of s.424 in relation to the scope of the order suspending the protected industrial action.

[16] The other issue raised in the appeal relates to the purported reliance on the powers in s.418 of the Act in the making of the order by the Senior Deputy President. Section 418 provides for the making of orders that industrial action stop if it appears to FWA that unprotected industrial action is happening, threatened, impending or probable or is being organised. Apart from ordering the suspension of the industrial action authorised by the protected action ballot, the order made by the Senior Deputy President directed the NTEU to advise its delegates and members that industrial action must not be engaged in or threatened for the period of the order. It also directed employees to immediately stop engaging in or threatening to engage in industrial action for the period of the order.

[17] It was contended by the University that the orders to the effect of directing that industrial action stop were made pursuant to the power contained in s.418 of the Act, under which FWA can act on its own motion. The NTEU submitted that it was given no notice or opportunity to address on the application of s.418 and that this amounted to a denial of procedural fairness in relation to the making of the orders. Although this issue was not raised in its notice of appeal, the NTEU sought leave to amend its appeal so as to include jurisdictional issues relating to the purported reliance on the power contained in s.418 in the making of the orders.

[18] There was no reference in the proceedings before the Senior Deputy President or in his decision or order to the making of orders pursuant to s.418. However we note that the order made by the Senior Deputy President was in similar terms to that which was filed by the University together with its original application under s.424. It cannot therefore be said that the NTEU did not have an opportunity in the course of the proceedings before the Senior Deputy President to address issues relating to the terms of the order being sought by the University. The failure of the parties in the proceedings to identify and address these issues meant that there was no proper enquiry as to the extent to which the order sought went beyond the suspension of protected industrial action and ancillary matters and relied upon the exercise of powers in s.418. Clearly this would have been the desirable course to be followed in the consideration of the matter. Despite this view, we do not consider that there would be any practical purpose served at this stage by the Full Bench embarking upon such enquiry and making any necessary variations to the order made. The industrial situation has passed, the order made by the Senior Deputy President has expired and we are not aware of any issues or proceedings relating to the observance of the order.

[19] As the appeal raises issues relating to the proper construction and scope of the powers relating to the making of orders suspending protected industrial action and procedural fairness, we have decided to grant permission to appeal. However, for the reasons given above, we are not persuaded that there was any error in the Senior Deputy President’s determination of the application by the University of such a magnitude as would warrant an appeal bench interfering with the decision. We have therefore decided to dismiss the appeal.

SENIOR DEPUTY PRESIDENT

Appearances:

E. White of Counsel for the National Tertiary Education Industry Union.

H. Dixon SC and A. Short for the University of South Australia.

Hearing details:

2010.
Adelaide:
February, 11.

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