[2014] FWC 2645

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Linfox Armaguard Pty Ltd
v
Transport Workers' Union of Australia
(C2014/4065)

COMMISSIONER HAMPTON

ADELAIDE, 30 APRIL 2014

Application for an Order to prevent unprotected industrial action - whether notice requirements of the Act were met - degree of specificity to be assessed in the context of each case and the circumstances of the business - some notices vague and uncertain and not sufficient to outline the nature of the industrial action - other notices sound but when considered as a whole fail to provide the extent of notice required by the protection action ballot order - industrial action not protected - orders issued.

1. The application and its determination

[1] This decision concerns an application by Linfox Armaguard Pty Ltd (Armaguard) seeking that the Fair Work Commission make orders in relation to certain industrial action that was being organised by the Transport Workers’ Union of Australia (TWU).

[2] The application was made pursuant to s.418 of the Fair Work Act 2009 (the Act) on the grounds that certain industrial action was not protected within the meaning of the Act and as a result, orders should be issued preventing that action. The basis of that contention was essentially that the notice of the proposed industrial action was not consistent with the relevant notice requirements of the Act for the taking of protected industrial action.

[3] The application was filed on 16 April 2014 and heard on the afternoon and evening of the following day. Having considered the evidence and submissions in the context of the statutory obligations bearing upon the issues, I issued an Order 1 late on 17 April 2014 preventing unprotected industrial action pursuant to s.418(1) of the Act. In so doing, I indicated that I would publish reasons for my decision, which I now do.

2. The background to the application

[4] This application took place in the context of bargaining for a proposed enterprise agreement and some of the background to this matter is set out in the decision 2 of the Commission granting a protected action ballot order application of the TWU (the PAB decision).

[5] Armaguard is Australia’s largest cash-in-transit security company and the proposed agreement would cover the road crews in South Australia who undertake the cash transit and ATM servicing for the company in that State. The employees concerned currently fall under the scope of the Armaguard and Transport Workers’ Union Road Crew (South Australia) Union Collective Agreement 2011.

[6] The TWU is a bargaining representative for many of the employees to be covered by the proposed enterprise agreement. In March 2014, despite objections from Armaguard, I granted orders 3 allowing the TWU to conduct a protected action ballot (PAB). One of the issues to be determined was whether an extended period of notice of certain proposed industrial action should be required.

[7] Section 443(5) of the Act provides, in effect, that if there are exceptional circumstances justifying the period of written notice referred to in s.414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days in relation to the proposed industrial action that is the subject of the PAB.

[8] In the PAB decision, I found as follows:

“[24] In this case, the particular nature of the work, the extent of the cash transit business in South Australia conducted by Armaguard, the implications of some forms of potential industrial action for the business, their customers and potentially the public, are all significant factors that support a finding of exceptional circumstances. In particular, the capacity for the employer to make reasonable contingency arrangements for the collection of money and the servicing of ATM’s is impacted by the nature of that work and the regulatory and security environment in which it is performed.

[25] Additional notice is warranted in relation to those actions that most directly put the safety and security of the employees and client businesses involved, and potentially the public, at risk. In those cases, the additional notice will permit appropriate contingency arrangements to be put into place that will mitigate those risks. The particular arrangements include the opportunity for Armaguard to arrange the licensing of appropriate contingency staff, from non-operational and interstate sources, under South Australian law. Further, the ban on ATM services and two-man crewing represent significant limitations on the operations of Armaguard in the context of its South Australian operations with identifiable security and safety implications.

[26] These exceptional circumstances do justify an extended period of notice in relation to some but not all of the proposed industrial action.”

[9] I determined that the bans on two-person crewing, ATM servicing and stoppages over four hours, would be subject to five working days notice. 4

[10] The consequent ballot endorsed various forms of industrial action and in the lead up to this application the TWU has given notice of proposed industrial action to Armaguard.

[11] On 11 April 2014, the TWU gave notice to Armaguard in the following terms:

Notice 1:

“Notice of Industrial Action

REF: NIA #l

We refer to the Protected Action Ballot Order in matter no: B2014/584.

Pursuant to the aforementioned Order we write to provide you with 5 working days notice of industrial action by TWU members employed by Linfox Armaguard Pty Ltd who are covered by the Armaguard and Transport Workers’ Union Road Crew (South Australia) Union Collective Agreement 2011.

The nature and timing of the industrial action is as follows:

“An unlimited number of bans or limitations on the performance of ATM servicing”

From: Wednesday 23 April 2014.

The TWU and our members from Linfox Armaguard Pty Ltd are ready to meet with company representatives to consider any revised offer.

All correspondence should be addressed to the Branch Secretary Ray Wyatt either by post PO Box 137 WELLAND SA 5007 or email: ...”

Notice 2:

“Notice of Industrial Action

REF: NIA #2

We refer to the Protected Action Ballot Order in matter no: B2014/584.

Pursuant to the aforementioned Order we write to provide you with 5 working days notice of industrial action by TWU members employed by Linfox Armaguard Pty Ltd who are covered by the Armaguard and Transport Workers’ Union Road Crew (South Australia) Union Collective Agreement 2011.

The nature and timing of the industrial action is as follows:

“An unlimited number of bans or limitations on the performance of two-man crewing”

From: Wednesday 23 April 2014.

The TWU and our members from Linfox Armaguard Pty Ltd are ready to meet with company representatives to consider any revised offer.

All correspondence should be addressed to the Branch Secretary Ray Wyatt either by post PO Box 137 WELLAND SA 5007 or email: ...”

Notice 3:

“Notice of Industrial Action

REF: NIA #3

We refer to the Protected Action Ballot Order in matter no: B2014/584.

Pursuant to the aforementioned Order we write to provide you with 3 working days notice of industrial action by TWU members employed by Linfox Armaguard Pty Ltd who are covered by the Armaguard and Transport Workers’ Union Road Crew (South Australia) Union Collective Agreement 2011.

The nature and timing of the industrial action is as follows:

“An unlimited number of bans or limitations on the performance of overtime”

From: Wednesday 23 April 2014.

The TWU and our members from Linfox Armaguard Pty Ltd are ready to meet with company representatives to consider any revised offer.

All correspondence should be addressed to the Branch Secretary Ray Wyatt either by post PO Box 137 WELLAND SA 5007 or email: ...”

[12] The terms of the notices reflect the equivalent question endorsed by the members of the TWU in the PAB, but do not provide any further clarification or elaboration. This aspect forms the primary basis of the contentions advanced by Armaguard in support of its application.

[13] Leaving aside the immediate objections relied upon by Armaguard, these notices provided the five or three working days notice respectively, as required by the PAB decision.

[14] On 15 April 2014, the TWU gave notice to Armaguard in the following terms:

Notice 4:

“Notice of Industrial Action

REF: NIA #4

We refer to the Protected Action Ballot Order in matter no: B2014/584.

Pursuant to the aforementioned Order we write to provide you with 3 working days notice of industrial action by TWU members employed by Linfox Armaguard Pty Ltd who are covered by the Armaguard and Transport Workers’ Union Road Crew (South Australia) Union Collective Agreement 2011.

The nature and timing of the industrial action is as follows:

“An unlimited number of bans or limitations on the performance of duties not listed in the job description or duty statement”

From: Wednesday 23 April 2014.

The TWU and our members from Linfox Armaguard Pty Ltd are ready to meet with company representatives to consider any revised offer.

All correspondence should be addressed to the Branch Secretary Ray Wyatt either by post PO Box 137 WELLAND SA 5007 or email: ...”

Notice 5:

“Notice of Industrial Action

REF: NIA #5

We refer to the Protected Action Ballot Order in matter no: B2014/584.

Pursuant to the aforementioned Order we write to provide you with 3 working days notice of industrial action by TWU members employed by Linfox Armaguard Pty Ltd who are covered by the Armaguard and Transport Workers’ Union Road Crew (South Australia) Union Collective Agreement 2011.

The nature and timing of the industrial action is as follows:

“Stoppages of work for up to and including 1 hour”

From: Wednesday 23 April 2014 at 5:00am.

To: Wednesday 23 April 2014 at 5:59am.

The TWU and our members from Linfox Armaguard Pty Ltd are ready to meet with company representatives to consider any revised offer.

All correspondence should be addressed to the Branch Secretary Ray Wyatt either by post PO Box 137 WELLAN D SA 5007 or email: ...”

Notice 6:

“Notice of Industrial Action

REF: NIA #6

We refer to the Protected Action Ballot order in matter no: B2014/584.

Pursuant to the aforementioned Order we write to provide you with 3 working days notice of industrial action by TWU members employed by Linfox Armaguard Pty Ltd who are covered by the Armaguard and Transport Workers’ Union Road Crew (South Australia) Union Collective Agreement 2011.

The nature and timing of the industrial action is as follows:

“Stoppages of work for up to and including 2 hours”

From: Wednesday 23 April 2014 at 6:00am.

To: Wednesday 23 April 2014 at 7:59am.

The TWU and our members from Linfox Armaguard Pty Ltd are ready to meet with company representatives to consider any revised offer.

All correspondence should be addressed to the Branch Secretary Ray Wyatt either by post PO Box 137 WELLAND SA 5007 or email: ...”

Notice 7:

“Notice of Industrial Action

REF: NIA #7

We refer to the Protected Action Ballot Order in matter no: B2014/584.

Pursuant to the aforementioned Order we write to provide you with 3 working days notice of industrial action by TWU members employed by Linfox Armaguard Pty Ltd who are covered by the Armaguard and Transport Workers’ Union Road Crew (South Australia) Union Collective Agreement 2011.

The nature and timing of the industrial action is as follows:

“Stoppages of work for up to and including 4 hours”

From: Wednesday 23 April 2014 at 8:00am.

To: Wednesday 23 April 2014 at 12:00pm.

The TWU and our members from Linfox Armaguard Pty Ltd are ready to meet with company representatives to consider any revised offer.

All correspondence should be addressed to the Branch Secretary Ray Wyatt either by post PO Box 137 WELLAND SA 5007 or email: ...”

[15] The terms of these notices also reflect the equivalent question endorsed by the members of the TWU in the PAB. However, in the case of the work stoppage(s) (notices 5, 6 and 7), these clarify when the proposed stoppage(s) is to take place.

[16] The effect of the work stoppage notices, and whether they should have been given with five working days notice, is also in dispute in this matter.

3. The legislation

[17] Division 4 of Chapter 3 – Part 3 of the Act provides relevantly as follows:

“418 The 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

(c) is being organised;

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.

Note: For interim orders, see section 420.

(2) The FWC may make the order:

(a) on its own initiative; or

(b) on application by either of the following:

(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;

(ii) an organisation of which a person referred to in subparagraph (i) is a member.

(3) In making the order, the FWC does not have to specify the particular industrial action.

(4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:

(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or

(b) which has not ended before the beginning of that stop period; or

(c) beyond that stop period;

The FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.”

[18] The TWU accepts that industrial action is threatened, impending and probable. In that light and given the facts of the matter, the only issue between the parties was whether the industrial action would be protected industrial action within the meaning of the Act.

[19] 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:

“409 Employee claim action

Employee claim action

(1) Employee claim action for a proposed enterprise agreement is industrial action that:

(a) is organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement that are only about, or are reasonably believed to only be about, permitted matters; and

(b) is organised or engaged in, against an employer that will be covered by the agreement, by:

(i) a bargaining representative of an employee who will be covered by the agreement; or

(ii) an employee who is included in a group or groups of employees specified in a protected action ballot order for the industrial action; and

(c) meets the common requirements set out in Subdivision B; and

(d) meets the additional requirements set out in this section.

Protected action ballot is necessary

(2) The industrial action must be authorised by a protected action ballot (see Division 8 of this Part).

Unlawful terms

(3) The industrial action must not be in support of, or to advance, claims to include unlawful terms in the agreement.

Industrial action must not be part of pattern bargaining

(4) A bargaining representative of an employee who will be covered by the Agreement must not be engaging in pattern bargaining in relation to the agreement.

Industrial action must not relate to a demarcation dispute etc.

(5) The industrial action must not, if it is being organised or engaged in by a bargaining representative, relate to a significant extent to a demarcation dispute or contravene an FWA order that relates to a significant extent to a demarcation dispute.

Notice requirements after suspension order must be met

(6) If section 429 (which deals with employee claim action without a further Protected action ballot after a period of suspension) applies in relation to the industrial action, the notice requirements of section 430 must be met.

Officer of an employee organisation

(7) If an employee organisation is a bargaining representative of an employee who will be covered by the agreement, the reference to a bargaining representative of the employee in subparagraph (1)(b)(i) of this section includes a reference to an officer of the organisation.”

[20] This application relies solely upon the notice requirements as established in relation to protected industrial action by the common requirements, and in particular, s.414 of the Act. That provision is in the following terms:

“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.”

[21] Of these, the requirements of s.414(6) are critical to the determination of this matter.

4. The basis of the application

[22] Armaguard contended that each of the elements of the notified industrial action were deficient on the basis that in each case the notice did not specify the nature of the industrial action as required by the Act. That is, the notices did not specify the nature of the action with any specificity and whether considered singly or in combination, were ambiguous and misleading. This, it contended, did not satisfy the statutory purpose of the notice.

[23] Armaguard also contended that the notices of the work stoppages (notices 5, 6 and 7) were also deficient for another reason. It argued that they were, in reality, notice of a seven hour work stoppage and the TWU had not given 5 working days notice as required by the PAB decision for stoppages of over 4 hours duration.

[24] As a result, Armaguard contended that none of the notified industrial action was protected and the Commission was obliged by s.418(1) of the Act to make an order preventing that action.

[25] Armaguard led evidence from Mr Rodde, its Regional Manager - Southern Region, in support of its application.

[26] The TWU contended that all of the notified industrial action was protected under the Act and that no orders could or should be made. In particular, it contended that each of the notices provided to Armaguard should be treated individually and in each case they reflected the industrial action authorised by the PAB.

[27] The TWU also contended that as Armaguard had conceded that it could take defensive action to deal with the full extent of the notified action, the notice had achieved its statutory purpose.

[28] In relation to the work stoppages, the TWU contended that there were three separate notices and although this was a technicality, it was entitled to rely upon that basis to only give three days notice of the stoppages. To the extent that the notices might be seen to represent notice of a seven hour stoppage in practice, the TWU further contended that the extent of actual notice provided by the notices on 15 April 2014 should also be taken into account.

5. Did the notices specify the nature of the action as required by the Act?

[29] In approaching this matter I am mindful of the guidance that has been provided by various Full Benches with respect to the application of s.214 of the Act and the related notice requirements concerning protected industrial action. 5

[30] Given the scheme of the Act, it is my view that the scope of the notified industrial action should not be considered in a pedantic or narrow fashion. It is also evident that the Commission may only “interfere” with industrial action that is being taken in the context of what would otherwise be protected action where it is positively satisfied that the action is not protected.

[31] The purpose of the notice required by s.414(6) of the Act has been set out by the Full Bench in Telstra Corporation limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 6 (Telstra) in the following terms:

“[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.”

[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.”

[32] Consistent with the above approach, it is appropriate to assess the degree of specificity in the notice in the context of the employer’s undertaking and the manner in which it operates. 7

[33] The form of notice provided by the TWU varies. The notices given on 11 and 15 April 2014, with the exception of those relating to work stoppages, refer to “an unlimited number of bans or limitations on the performance of” the various elements of the work cited in each case. The notices do not specify the nature or extent of the bans or limitations, nor do they specify whether they apply to all or only some of the work in question.

[34] Given the nature of the work in question, the practical consequences of the difference between a ban or limitation on some of the work, and a total ban, is very significant. When combined with the fact that the notices do not specify whether the ban and/or limitations are for a specific duration or indefinite, very little is actually revealed about the nature of the proposed industrial action. The uncertainty and the consequences of such arise in particular from the nature of the work undertaken by the TWU members at Armaguard and the factors discussed in the PAB decision leading to the finding of exceptional circumstances.

[35] Notice 4 also refers to an unlimited nature of bans or limitations on the performance of duties not listed in the job description and duty statement. The position description 8 utilised by Armguard is a very high-level and non-specific document and also refers to “all other duties as directed within the scope of employee skill level and training”. The effect of the notice in that context is very problematic and when combined with the deficiencies discussed above, the nature of the proposed industrial action is not specified in a meaningful sense.

[36] In the case of the notices 1, 2, 3 and 4 issued on 11 and 15 April 2014 (all notices other than those relating to work stoppages), there is insufficient detail provided as to the nature of the proposed industrial action to meet the notice requirements of the Act. In the context of this particular workplace and given the nature of the language of the notices, each is too vague and uncertain to communicate the nature of the proposed industrial action.

[37] Armaguard conceded that it could take precautions to deal with the industrial action, if certain assumption were made, and that some measures were already foreshadowed. 9 However, these would require it to assume the worst case scenario (a full and extended ban in each case) and to take what might be described as extreme measures. That is, it is evident that it may be able to take response action, but given the nature of the notice and the circumstances of the business, only by planning for all eventualities, locking out all of the TWU members taking the action, and effectively bringing in a “flying squad” to replace them all. This is the kind of scenario that the Full Bench in Telstra was contemplating and the notices provided do not enable the employer in this case to take relevant defensive preparations as contemplated by the authorities.

[38] In terms of the notices issued on 15 April 2014 relating to work stoppages, these are in a different form. Although they repeat the broad scope of the PAB approved action, in each case the actual nature of the action, being the stoppage of work for a nominated duration, is then specified. This would be sufficient detail of the nature of the action to meet the notice requirements of the Act. Indeed, this has the effect of demonstrating the deficiency with the other notices. It is however unnecessary to finally determine this aspect for reasons set out below.

6. Did the notice of the work stoppages require five days notice?

[39] The PAB decision required that five working days notice be provided for stoppages of work over four hours. The notices provided for the work stoppages (notices 5, 6 and 7) did not provide five working days notice to Armaguard. 10 The question that arises is whether, what on face value appears to be three separate notices, should be considered having regard to the combined effect of the notices.

[40] In reality, the three notices mean that a stoppage of greater than four hours was to be conducted by members of the TWU. The notices provide, in effect, that a work stoppage was to be undertaken by the same group of employees and over a period running from 5.00 am to 12.00 pm on the same day; being Wednesday 23 April 2014. There is a period of one minute between the work stoppages notified by notices 5 and 6, and between notices 6 and 7. This is however completely academic given the nature of the work performed by the employees.

[41] There is no prescribed form of notice under the Act, they were all provided to Armaguard on the same day, and it is in any event appropriate to have regard to the combined effect of notices given by bargaining representatives in this context. 11

[42] In that light, the fact that the TWU used three separate letters to provide notice does not deny the fact that they gave notice of, in effect, a seven hour stoppage of work. The notices involve the same employees and in reality three continuous periods of stoppages. This practical effect of the notices was conceded by the TWU 12 and the Commission should understand and consider the real world impact of the notices. The use of the three separate letters in this context may be a device to attempt to avoid the impact of the PAB decision, but whatever the motive, it would make a nonsense of the requirements of that decision to overlook the effective application of the notices.

[43] Further, the fact that the industrial action approved following the PAB decision contemplated industrial action being taken “consecutively” does not provide a basis for protection in this case. I have not found that the action would be unprotected on the basis that it was not approved by the questions endorsed by the PAB. Rather, I have found that the notice was not the five working days required by that decision in the case of a stoppage of the duration as proposed by the relevant notices.

7. The form of the orders

[44] Having found that each of the elements of the notified industrial action did not meet the notice requirements of the Act, it would not be employee claim action within the meaning of s.409 of the Act. As a result, the impending industrial action would not have been protected within the meaning of s.408. Section 418(1) of the Act requires the Commission to make orders preventing industrial action in these circumstances.

[45] Consistent with the approach required by the decision of the Full Bench in E. Allen and Ors v Fluor Construction Services Pty Ltd, 13 the Order defined the (unprotected) industrial action in a manner consistent with s.19 of the Act and made some consequential orders,14 but only to the extent necessary to give effect to the substantive order to stop organising and not engage in the unprotected industrial action.

[46] Section 418(1) of the Act requires that such an order must be made for a defined period, the “Stop period”. In the circumstances, I determined that the stop period for the Order should be that period commencing from the time of the Order and ending at 5.00pm on Friday 25 April 2014; being a period to cover the lead up to, and immediately after, the notified industrial action.

[47] Section 418(4) provides that where the Commission makes an order in circumstances which include where a protected action ballot order has authorised the industrial action, it may state that the industrial action may be engaged in after the end of the stop period without another protected action ballot. These are the circumstances applying in this case.

[48] The TWU could give notice of industrial action authorised by the PAB, and provided that the notice complied with the minimum notice period in each case and specified the nature of the action that was to be taken, this would become protected under the Act. In the circumstances, and given the basis upon which the present notices were found to be defective, it would not be reasonable to require the TWU to seek a further PAB. It was therefore appropriate to make an order contemplated by s.418(4) of the Act in this case.

Appearances:

R West (of counsel) with K Lehane (of Minter Ellison), with permission, with V McEvoy and J Roode for Linfox Armaguard Pty Ltd.

E Lawrie with I Smith for the Transport Workers’ Union of Australia.

Hearing details:

2014

Adelaide (with a video link to Melbourne)

April 17.