[2010] FWAFB 1771 |
FAIR WORK AUSTRALIA |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT |
SYDNEY, 31 MARCH 2010 |
Appeal against decision [2009 FWA 1412] of Senior Deputy President Harrison in matter C2009/255 - Application for orders to stop industrial action; misleading s.414 notices to take industrial action
[1] This is an appeal against a decision of Senior Deputy President Harrison refusing an application by Boral Resources (NSW) Pty Ltd (Boral) for orders pursuant to s. 418 of the Fair Work Act 2009 (the Act). The orders were sought against the Australian Workers’ Union, New South Wales (the AWU) and its members employed by Boral at the Dunmore Quarry located on the South Coast of New South Wales.
[2] The circumstances which gave rise to the s. 418 application, as relevant to the present appeal, may be briefly stated as follows:
[3] The orders ultimately sought by Boral in the proceedings before the Senior Deputy President were inter alia directed to prevent delays, restrictions or limitation of work brought about by misleading notices of industrial action. In effect it was argued that the conduct of the AWU in giving notice of intention to take industrial action on a particular day and the employees then attending for work on that day resulted in a restriction, limitation and delay in the performance of work and that it was appropriate for an order to be made pursuant to s. 418 to stop the action.
[4] The Senior Deputy President rejected the application by Boral as she found that the requirements for the making of orders under s. 418 were not satisfied:
“To obtain each order (Boral) needs to establish that industrial action is happening, threatened, impending or probable or being organised, as the case may be (Transport Workers’ Union of NSW v AIRC [2008] FCAFC 26). Boral’s evidence and submissions made out none of those pre-requisites. There was no evidence of industrial action happening. Nor any evidence, or no adequate evidence, industrial action was impending or probable. I note in this respect Boral said very little in its submissions to persuade me about this limb of its argument. There were no submissions or evidence about the third limb that industrial action was being organised.” (at par 36)
The Senior Deputy President also found that the evidence presented by Boral did not establish that the conduct complained about was being taken “by one or more employees” (s.418(1)) in the sense that “the employee is to have initiated the action, or instigated, or be associated with the action coordinated by …the Union.” (at par37)
[5] The main issue for consideration in the appeal relates to whether a delay, restriction or limitation of work brought about by a misleading notice constitutes industrial action for the purposes of the Act. Whilst it was conceded by counsel for Boral that such a contention might seem “novel”, it was said that the conduct of the AWU in issuing notices of industrial action and not adhering to them had the result of delaying, limiting and restricting the normal work of employees at the quarry. It was submitted that industrial action is any action which has the effect of restricting, delaying or limiting the work done so as to limit the scope of that work or the time or circumstance in which it is done (David’s Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463). It was said that it is the effect of the action which is critical, not its nature.
[6] 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. Subsection 418 (1) provides:
“418 FWA must order that industrial action by employees or employers stop etc.
(1) If it appears to FWA 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
(c) is being organised;
FWA 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.
Note: For interim orders, see section 420.”
[7] Subsection 19(1) sets out the types of conduct that will constitute industrial action. So far as presently relevant, the subsection provides:
“19 Meaning of industrial action
(1) Industrial action means action of any of the following kinds:
(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee...”
[8] We have considered the evidence and material before the Senior Deputy President and in the appeal and have reached the conclusion that the requirements for making an order under s. 418 were not made out. There was simply not sufficient evidence before the Senior Deputy President to show that the conduct complained of, namely the AWU issuing notices of industrial action and not adhering to them, amounted to “industrial action” as defined in s. 19(1) or to “industrial action by one or more employees” within the meaning of s. 418(1).
[9] The simple application of the words of s. 19(1)(a) and (b), on their ordinary meaning, to the circumstances of this matter shows that the conduct complained of does not fall within the statutory definition. It is difficult to characterise the conduct as being “the adoption of a practice” in relation to work the result of which is a restriction or limitation on or delay in the performance of work (s. 19(1)(a)). There was limited evidence before the Senior Deputy President as to any course of conduct relating to the giving of notices such as might amount to a “practice” which could be so described. Further, the giving of a misleading notice would not of itself have the consequence of, for example, delaying the performance of work. As referred to in the Senior Deputy President’s decision, the practical consequences and limited work to perform at the quarry on the relevant day was the result of decisions taken by Boral or by its customers on the advice given to them by Boral. It was not the result of any action taken by the employees, who attended for work and undertook their work in the customary and usual way.
[10] Similarly, in relation to s. 19(1)(b), the conduct complained of was not of such a nature as to constitute “a ban, limitation or restriction on the performance of work” within the accepted meaning of those expressions. As the Senior Deputy President notes in her decision, there was no evidence that any work requirements made of the employees on the relevant days were not attended to. It might be arguable that a course of conduct in giving misleading notices might in some circumstances amount to a “limitation or restriction” on “offering for work as an employee.” However we do not consider that the conduct of the AWU in the present matter can be so categorised or that the adoption of such a strained construction of the words in s. 19(1)(b) is appropriate.
[11] In the course of the appeal proceedings we were taken to various decisions which considered the meaning of “industrial action” in the Workplace Relations Act 1996 (the WR Act) and the scheme of that Act relating to notice regarding the taking of protected action (see e.g. Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463; and Anglo Coal (Capcoal Management) Pty Ltd v CFMEU (2003) FCA 1073). The Senior Deputy President considered these cases in her decision and it has not been shown in the appeal that she erred in the approach or the conclusions reached regarding their relevance and possible application. They provide limited assistance in the consideration of the issues arising in the present matter as they deal with distinct aspects of a different legislative regime.
[12] Reference was also made in the appeal proceedings to the decision of a Full Bench of the Australian Industrial Relations Commission in NMHG Distribution Pty Ltd trading as Yale Asia Pacific v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 104 IR 158. That case involved a direct ban being placed by a union and its delegates employed by an employer upon work being performed on site by the employees of a contractor. The question was whether such a ban fell within the definition of “industrial action” in s. 4(1) of the WR Act. The Full Bench said:
“The New Shorter Oxford English Dictionary includes the following meaning for the word “ban”: “a formal or authoritative prohibition (on or against something).” This meaning accords with the use of the term in industrial relations discourse. As a matter of ordinary language, a prohibition by employees of CUB (and their union) on Yale employees carrying out work on those premises can be described as a “ban…on the performance of work, or on acceptance for or offering for work” within the terms of pars (b) and (c) of the definition. There is no indication in the objects of the Act, in the objects of Pt IV or anywhere else in the Act that the legislature intended to exclude such conduct from the definition. We can see no basis for limiting the ordinary meaning of “ban” where it appears in pars (b) and (c) of the definition to a ban imposed by employees in relation to their own work.” (at par 11)
[13] In the present matter, we do not consider that the conduct of the AWU complained about can be properly described as a “ban, limitation or restriction on the performance of work… or on the acceptance of or offering for work” within the ordinary meaning of paragraph (b) of the definition in s. 19(1) of the Act. As the Senior Deputy President noted in her decision:
“There was no evidence at all that, at the time the s. 414 notice was given, it was not the intention of the Union and its members to take the foreshadowed action. Furthermore the reason for giving the notice is that it is a requirement under the Act to enable the Union and its members to take protected action. But, having given the notice, nothing in the Act suggests that the Union and its members are obliged to carry through with the action as foreshadowed. There may be numerous reasons for not taking the action which may have arisen after the date of the notice.”
[14] There is no doubt that the notice requirements in s. 414 are an important part of the scheme of the Act relating to industrial action and provide the employer with an opportunity to take defensive action as may be appropriate to protect its business and custom. Part of the consideration of what defensive action to take will include an assessment of the likelihood of the industrial action being taken. This might cover the possibility of early agreement being reached either as to issues in dispute or the process of addressing those issues as well as the possibility of some or all employees deciding for whatever reasons not to take part in the action. The assessment might also involve consideration of past practice and experience between the parties in relation to bargaining and the taking of industrial action. However there is no legislative requirement that industrial action once notified must be taken and, as the Senior Deputy President noted in her decision, it is not unusual in the current bargaining regime and that under the WR Act for notices to take protected industrial action to be withdrawn or not acted upon.
[15] Even if it was shown that the union had deliberately issued misleading notices of industrial action, we would doubt that such conduct would fall within the description of industrial action in s. 19(1)(a) or (b) of the Act. Rather in industrial parlance the misleading conduct might be described as an industrial tactic employed in the course of bargaining and negotiations. Clearly such practices should not be encouraged and indeed may run counter to the interests of those involved by undermining their credibility in the bargaining process. The conduct might also provide a basis for making application for good faith bargaining orders (s. 230) or lead to responsive action by the employer including lock outs and the standing down of employees (s. 524). However, within the scheme of the Act, we do not see recourse to s. 418 as providing effective relief against such conduct. This is because, even if the conduct was found to be “industrial action”, then it would follow that it could be undertaken in a protected way under Part 3-3 of the Act provided it was approved by employees in a protected action ballot.
[16] It was also submitted by Boral in the appeal proceedings that the obligation pursuant to s. 414 to give notice of industrial action gave rise to a valuable “workplace right” in the employer as defined in s. 341 of the Act. Even if there was such a workplace right (which we do not need to decide), it has not been shown that that right was denied by the conduct of the AWU or the employees in the present case (the relevant notice having been given) or that an appropriate remedy for any denial of such right would be by application under s. 418 rather than through the compliance provisions of the Act with respect to workplace rights (see e.g. Division 8 of Part 3-1).
[17] For all the above reasons, we have reached the conclusion that on the evidence and material before the Senior Deputy President and on appeal the requirements for making an order under s. 418 were not made out.
[18] Given the importance of the issues raised regarding the interpretation and application of the provisions and scheme of the Act relating to the taking of industrial action, we grant permission to appeal. However, as it has not been established that there was any error in the Senior Deputy President’s consideration and determination of the application by Boral which would warrant an appeal bench interfering with the decision, we have decided to dismiss the appeal.
SENIOR DEPUTY PRESIDENT
Appearances:
G.J. Hatcher SC and K.G. Bennett of Counsel for Boral Resources (NSW) Pty Ltd.
A. Hatcher of Counsel and G. Sivaraman for the Australian Workers’ Union.
Hearing details:
2010.
Sydney:
February, 25.
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