and Roman Catholic Trust Corporation for the Diocese of Cairns v Independent Education Union of Australia

[2015] FWC 7628

[2015] FWC 7628

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.418—Industrial action

Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane; Roman Catholic Trust Corporation for the Diocese of Rockhampton; Roman Catholic Trust Corporation for the Diocese of Townsville; and Roman Catholic Trust Corporation for the Diocese of Cairns
v
Independent Education Union of Australia
(C2015/7156)

COMMISSIONER MCKENNA SYDNEY, 11 NOVEMBER 2015

Alleged industrial action at various Catholic Archdiocese schools.

[1] On 5 November 2015, I dismissed the application in this matter. Within the meaning of s.418 of the Fair Work Act 2009 (“the Act”), it did not appear to me that unprotected industrial action was happening; threatened, impending or probable; or being organised.

[2] Before turning to my reasons for that decision, it is apposite to outline some procedural-type background.

Background

[3] On 3 November 2015, an application was made, pursuant to s.418 of the Act, for an order to stop industrial action. The initiating process identified the persons sought to be bound by the proposed order as follows:

“ The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane, and the Roman Catholic Trust Corporation for the Diocese of Cairns, the Roman Catholic Trust Corporation for the Diocese of Townsville, and the Roman Catholic Trust Corporation for the Diocese of Rockhampton (collectively the Employers).

• The Independent Education Union, Queensland and Northern Territory Branch, including but not limited to its office-holders Terry Burke and delegates John Spriggs [sic] (the Union).



• Employees working in schools being operated by the Employers, whose work is regulated by the Catholic Employing Authorities Single Enterprise Collective Agreement – Diocesan School of Queensland 2012 (the Agreement) and who are authorised to take industrial action (the Employees).”

[4] The application set out the grounds in support of the application. As to the orders sought, the application indicated:

“Under section 418(1), if the Commission is satisfied of the jurisdictional prerequisites an order must be granted. Pursuant to s.418(2) of the Fair Work Act 2009 the Employers seek:

• an urgent hearing of this matter.



• the making of orders in the attached terms by the Fair Work Commission.



• Without limiting its rights to seek interim orders, if the Fair Work Commission cannot hear and determine the application for an order pursuant to section 418(1) within 48 hours, the Employers seek an interim order pursuant to section 420(2) of the FW Act.”

[5] The application was brought by four applicants, namely: (1) Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane; (2) Roman Catholic Trust Corporation for the Diocese of Rockhampton; (3) Roman Catholic Trust Corporation for the Diocese of Townsville; and (4) Roman Catholic Trust Corporation for the Diocese of Cairns (“the applicants”).

[6] The initiating process indicated the applicants sought an order that relevantly would bind: (1) the Independent Education Union, Queensland and Northern Territory Branch (“the IEU”), including, but not limited to, office-holders and delegates (and, although this was not entirely clear given they were individually named, Messrs Terry Burke and John Spriggs personally); and (2) employees working in schools being operated by the applicants, whose work is regulated by the Catholic Employing Authorities Single Enterprise Collective Agreement – Diocesan School of Queensland 2012 and who are authorised to take industrial action. That authorisation to take industrial action to which reference was made in the initiating process stemmed from a protected action ballot order made by Booth C on 10 August 2015 [PR570214] and the voter authorisation consequent upon ballots conducted by the Australian Electoral Commission.

[7] Although the initiating process indicated that the applicants’ representative was the Queensland Catholic Education Commission, a covering letter (date-stamped as having been received by the Fair Work Commission on Tuesday, 3 November 2015) which accompanied the application otherwise advised that the law firm, Minter Ellison, was acting for the applicants. Minter Ellison’s covering letter of 3 November 2015 also advised:

“We seek an urgent listing of this application as the ongoing effects of unprotected industrial action are having a negative effect on schools, staff, students and families of schools [sic] in which unprotected industrial action is being taken.

The Applicants and Mr Hill will be available any time after 12pm [Queensland time] on Wednesday 4 November [2015] for the hearing of the application.

We will serve the union with a copy of the Application and Affidavit this afternoon.”

[8] It is unclear, but it does not appear that Minter Ellison copied this covering correspondence containing its application for an urgent listing for a hearing any time after 12.00 noon on Wednesday 4 November 2015 to any respondent(s) to the application.

[9] Accompanying the application were a draft order and a statutory declaration of Peter Hill, the Director of Employee Services, Brisbane Catholic Education Office. The solicitors for the applicants also subsequently forwarded various emailed communications to my Associate prior to the listing.

[10] In the chronology that follows, all times are, unless otherwise indicated, Australian Eastern Daylight Time.

[11] At 5.27pm (apparently Queensland time) on Tuesday 3 November 2015, Minter Ellison sent an emailed communication to the Secretary of the IEU, Mr Burke, which read:

“We act for The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane and other Diocesan Employers (excluding the Toowoomba Diocese).

Today we were instructed to file the attached application and supporting affidavit. We enclose the application and the affidavit by way of service.

We have sought an urgent hearing of the application.

The annexures to the affidavit are too numerous to be efficiently scanned. We will deliver a full copy of the affidavit and the application to your office tomorrow morning. …”

[12] The application was allocated to me at 8.48am on Wednesday, 4 November 2015. Given the usual time-sensitivity of applications to stop industrial action, I determined to list the matter for a mention by telephone at 1.15pm, that is, during the lunch adjournment of a hearing otherwise listed before me that day.

[13] At 10.15am on 4 November 2015, Minter Ellison sent an emailed communication to my Associate in the following terms (which attached as part of an email chain the correspondence of 3 November 2015 to Mr Burke of the IEU extracted immediately above):

“I have been advised by the registry that Commissioner McKenna has been allocated this matter.

Please find attached an email sent to Mr Terry Burke yesterday.

I have attempted to contact Mr Burke this morning to advise him that we will be serving him with the annexures to the affidavit that was emailed to him yesterday. We could not efficiently email the annexures to the affidavit yesterday as they are quite voluminous. For this reason, and in fairness to the Union, we are comfortable with the hearing of the matter being set down tomorrow ([Thursday] 5 November 2015). …”

[14] In the course of (commencing) the printing and compilation of the file that had been electronically received by my Associate following the allocation, it became apparent that there was no identification of contact details for any respondent, for the purposes of listing the matter, in any of the papers that Minter Ellison had filed on behalf of the applicants. My Associate contacted Minter Ellison, given that the covering letter with the application indicated the firm was acting for the applicants, albeit in circumstances where the initiating process indicated that the Queensland Catholic Education Commission was the applicants’ representative and Minter Ellison had not otherwise filed a Notice of Representative Commencing to Act.

[15] By emailed response at 10.34am on 4 November 2014, Minter Ellison wrote to my Associate in the following terms:

“Thank you for your call.

I confirm that the contact details that I have for the IEUA-QNT are below.

IEU – QNT
346 Turbot Street
Brisbane QLD 4000

General Secretary: Terry Burke

The Union’s general number is [telephone number].

I confirm that the matter is listed for mention at 1.15pm today. Can you please confirm whether that is day-light-savings time or local Queensland time?

My contact details for today’s mention are below.

I can also confirm that, in terms of timing, and in fairness to Commissioner McKenna (who I understand is currently in a 2 day hearing) we are comfortable if the matter is listed on Friday.”

[16] Minter Ellison did not provide an email address for the IEU/Mr Burke, but one was otherwise separately obtained for the purpose of issuing the Notice of Listing

[17] The Notice of Listing advised that the matter was listed for mention by telephone at 1.15pm. Below the listing details was text which read:

“The matter will be heard by telephone link. Parties are to dial the following number [telephone number] five minutes before the scheduled listing time and when prompted enter the conference ID [number]. After joining the conference call parties should hold until Commissioner McKenna is connected.

Important: Please see Special Notes over the page.”

[18] The Special Notes attached to the Notice of Listing read, in part:

“2. Correspondence and other documents

Please note that, generally, the only materials that should appropriately be lodged with the Commission or forwarded to this office are those required under the Fair Work Commission Rules 2013 [address/link to the Commission’s website] (such as a Notice of Representative Commencing to Act or Employer’s Response) or, otherwise, pursuant to directions or permission of the Commission.

Any emailed correspondence or other material lodged with the Commission or forwarded to this office must be promptly served on, or copied to, the other party or parties to the proceedings.”

[19] That Notice of Listing was successfully transmitted at 10.37am on 4 November 2015 to Minter Ellison and IEU email addresses.

[20] By emailed correspondence of 10.52am on 4 November 2015, attaching the Notice of Listing as part of an email chain, Minter Ellison wrote to my Associate in the following terms:

“Thank you for your email [i.e. the Notice of listing].

I have included Mr Burke in this one, so as to ensure he receives a copy of the Notice of Listing.

I confirm that the time for the mention is 12.15pm local Brisbane time.

My contact phone number is below.

I have been advised by the Union’s receptionist that Mr Burke’s best contact number is [telephone number].”

[21] In consequence of receipt of this emailed correspondence, my Associate had occasion to telephone Minter Ellison to point out that the Notice of Listing indicated that the parties were to dial-into the proceeding.

[22] At 12.14pm on 4 November 2015, Minter Ellison filed and served (on the IEU secretary) a Notice of Representative Commencing to Act.

[23] At 1.11pm on 4 November 2015, Minter Ellison filed and served (on the IEU secretary) an application for an order for substituted service. No draft order in that regard was attached to the application.

[24] I have given this background to highlight some matters including:

• The application was lodged on Tuesday, 3 November 2015.



• The applicants had effectively indicated, in advising of availability, their desire to have the matter listed for hearing at or after 12.00pm (Queensland time) on Wednesday 4 November 2015. As noted earlier, it does not appear that this letter was copied to the IEU around the time the application was lodged albeit the file records indicate that Minter Ellison otherwise separately sent emailed correspondence to Mr Burke of the IEU advising an urgent hearing had been sought.



• On the morning of Wednesday 4 November 2015, Minter Ellison sent emailed correspondence to my Associate advising that the annexures to Mr Hill’s statutory declaration in support of the application had not been served on the IEU and also advising that they “would be comfortable with” the matter being listed for hearing on Thursday, 5 November 2015.



• None of the papers indicated any contact details whatsoever for any respondents. In response to a request from my Associate for the provision of contact names and details, Minter Ellison provided a street address, the name of the IEU’s general secretary and a telephone number. Minter Ellison also advised that “in fairness to Commissioner McKenna (who I understand is currently in a 2 day hearing) we are comfortable if the matter is listed on Friday [6 November 2015]”.



• Minter Ellison’s communications concerning the listing of the matter seemed somewhat irregular in circumstances where it is the Commission which determines when a matter is to be listed. That is:

- Minter Ellison initially sought a hearing on Wednesday 4 November after 12.00 noon (Queensland time);

- Minter Ellison next advised, “in fairness” to the IEU, that they would be “comfortable with” the hearing being listed on Thursday 5 November 2015;

- Minter Ellison then next advised, somewhat surprisingly, that “in fairness” to me that they would be “comfortable with” the hearing being listed on Friday 6 November 2015.

• The Notice of Listing issued from chambers at 10.37am on Wednesday 4 November 2015 to email addresses of Minter Ellison and the IEU advising the matter was listed for a mention by telephone at 1.15pm that same day.



• At 10.52am on 4 November 2015, Minter Ellison wrote to my Associate advising “I have included Mr Burke in this one, so as to ensure that he receives a copy of the Notice of Listing” – being a Notice of Listing that had been issued simultaneously to Minter Ellison and Mr Burke of the IEU a short time previously by my Associate. The Minter Ellison correspondence also provided telephone contact details for the solicitor with carriage of the matter and Mr Burke, notwithstanding that the Notice of Listing provided the dial-in details.



• At 12.14pm on 4 November 2015 Minter Ellison filed and served a Notice of Representative Commencing to Act.



• Approximately one hour before the scheduled listing time for the first proceeding at 1.15pm on Wednesday 4 November 2015, Minter Ellison served a copy of the annexures to Mr Hill’s statutory declaration on the IEU.

[25] At 1.11pm on Wednesday 4 November 2015, four minutes before the scheduled commencement time of the first listing of the application, Minter Ellison filed and served (on the IEU secretary) an application for an order for substituted service. There was no draft order for substituted service attached to the application. The application for the order for substituted service read, in part:

“1. Persons in relation to whom substituted service is sought:

Employees working in schools being operated by the Applicants, whose work is regulated by the Catholic Employing Authorities Single Enterprise Collective Agreement – Diocesan Schools of Queensland 2012.

2. Document(s) for which substituted service is sought:

1. Application for an Order to Stop etc (Unprotected) Industrial Action filed by the Applicants on 3 November 2015 (the Application);

2. Statutory Declaration of Peter Hill filed by the Applicants on 3 November 2015;

3. Orders made by the Commission in this matter.

3. Proposed method by which service is to be effected:

By service on the Independent Education Union of Australia, Queensland and Northern Territory Branch (Union) of which the individual Employees are members.

4. Grounds:

Substituted service will be effective service and is appropriate in the circumstances because:

1. The Union represents the industrial interests of the Employees.

2. There is strong evidence that the industrial action which is the subject of the application has been authorised and encouraged by the Union.

3. There are several hundred Employees in relation to whom substituted service is sought who are engaged by a number of different Dioceses across Queensland and who are currently taking industrial action. Personal service on each of those Employees would be impractical given the urgency of the Application.”

[26] In the initial listing of the application on Wednesday 4 November 2015, Ms M Kavanagh, Special Counsel - Minter Ellison, was granted, permission to appear on behalf of the applicants. Mr J Spriggs of the IEU appeared on behalf of that union.

• I indicated that I had not had time to read all the, as Ms Kavanagh aptly put it, “voluminous” materials. Nonetheless, I received from the representatives confirmation of my preliminary understanding of the application that, in a nutshell, the principal issues turned on staff meetings and work being undertaken/not undertaken in other periods of time.



• Ms Kavanagh confirmed that the annexures to the statutory declaration in support of the application had been served on the IEU only within about the previous hour and, for that reason, the applicants would support a hearing of the application beyond the usual time prescription.



• Mr Spriggs indicated that it would be appropriate for interim orders to be made pursuant to s.420(2), as the IEU would be opposing the substance of the application and the two days for determination specified in s.420(1) in the Act would not be sufficient to be able to “prepare our defence”. He also sought that the parties enter into informal discussions about possible directions for the substantive hearing.



• Ms Kavanagh, at least as I understood the submission, indicated that a draft interim order might be extended beyond employees of schools who were employed by the applicants (i.e. employees of employers other than the four applicants in this application) – but I stated it was a “self-evident proposition” that I had before me an application concerning only nominated applicants.



• The matter was stood-down the list until 4.30pm on Wednesday 4 November 2015 to allow the parties to hold discussions about matters arising, including draft directions and a draft interim order for my consideration. The parties were subsequently informed by my Associate that the proceedings would not resume until 4.45pm, as the hearing before me that day was running later than expected.

[27] When the proceedings resumed, I was advised that certain documents were at that very time in the process of being emailed to my Associate. I also advised that, in the time since the listing earlier that day, I had now seen there was an application for an order for substituted service while also noting that the application was made without attaching a draft order. Ms Kavanagh indicated that this was addressed in the documentation then being emailed to my Associate. The proceedings adjourned for approximately ten minutes, during which time I perused the draft documents which had just been filed.

[28] The draft directions read:

“The Commission directs:

[1] By 4.00pm on Tuesday 10 November 2015, the Applicants are to file and serve any further witness statements, submissions and any documents in support of their position.

[2] By 4.00pm on Tuesday 24 November 2015, the Respondent is to file and serve submissions, witness statements and any documents in relation to its position.

[3] By 4.00pm on Friday 27 November 2015, the Applicants are to file and serve any evidence in reply.

[4] The matter be listed for hearing in Brisbane at 9am on either Monday 30 November, Tuesday 1 December or Wednesday 2 December 2015 for 2 days.” (Emphasis in original)

[29] I note that paragraph [1] of the draft directions was cast such as to allow the applicants until 10 November 2015 to file and serve any further witness statements, submissions and any documents in support of their position – rather than so as to allow the IEU to file and serve a response to the applicants’ materials already lodged in support of the application.

[30] The draft interim order filed on 4 November 2015 (“the first draft interim order”) read:

“In circumstances where the Fair Work Commission is unable to determine Application C2015/7516 within the period prescribed under section 420(1) of the Fair Work Act 2009 (being 2 days after the application is made) the Fair Work Commission must, within that period, make an interim order that the industrial action to which the application relates stop, not occur or not be organised.

As prescribed by section 420(2) of the Fair Work Act 2009 the Commission orders that:

[1] The parties bound by this Order are:

a. The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane, the Roman Catholic Trust Corporation for the Diocese of Cairns, the Roman Catholic Trust Corporation for the Diocese of Townsville, and the Roman Catholic Trust Corporation for the Diocese of Rockhampton (the Employers);

b. The Independent Education Union, Queensland and Northern Territory Branch (the Union);

c. Employees working in schools being operated by the Employers, the Roman Catholic Trust Corporation for the Diocese of Toowoomba or in the schools listed in the Schedule, whose work is regulated by the Agreement and who are authorised to take protected industrial action (the Employees).

[2] The Union must not organise any ‘unprotected industrial action’ involving any of the Employees.

[3] Each Employee must:

a. immediately stop engaging in, or threatening to engage in, unprotected industrial action;

b. not continue, recommence or organise any unprotected industrial action during the period of operation of this Order.

[4] For the purposes of this Order, the expression ‘unprotected industrial action’ means action of any of the following kinds:

a. any bans on ‘meetings of staff’ (other than the regularly scheduled whole of staff or whole of academic staff meetings).

b. any bans on work during non preparation and correction time non-contact time as provided under clauses s5.2.3 and clause s5.4 of the applicable enterprise agreements. For the avoidance of doubt, Employees can be directed to perform duties, other than preparation and correction, during non preparation and correction time non-contact time.

[5] Bans relating to the regularly scheduled whole of staff or whole of academic staff meetings will continue.

[6] Bans on work, other than preparation and correction, during preparation and correction time provided under clauses s5.2.2 and clause 7.15 of the Catholic Employing Authorities Single Enterprise Collective Agreement – Diocesan Schools of Queensland 2012 and clause s5.2.2 and clause 7.14 Catholic Employing Authorities Single Enterprise Collective Agreement - Religious Institute Schools of Queensland 2012 will continue.

[7] All other protected industrial action will not be effected [sic] by these orders and will continue in accordance with the Orders of Commissioner Booth and the Notices provided by the Union.

[8] The Union must prepare and publish, by way of the Union’s website and a Staff Briefing a copy of orders 1 to 7 of this Order within 24 hours.

[9] Without limitation as to other means of service, it will be sufficient service of this Order upon the parties bound by this Order if:

(a) in the case of the Union and the Union Representatives, a copy of this Order is either

(i) sent by facsimile or email to the State Secretary of the Union;

(ii) delivered to the State Secretary of the Union;

(b) in the case of the Employees, a copy of this Order is served on the Union in accordance with order 9(a) and published by the Union in accordance with order 8 of this Order.”

[31] Attached to the first draft interim order was a schedule which listed the following:

“All Hallows’ School
Bridgidine College
Loretto College
Lourdes Hill
Marist College Ashgrove
Mt Alvernia College
Mt St Michaels College
St Ursulas College, Toowoomba
St Ursulas College, Yepoon
St Patrick’s College, Townsville
St Rita’s College
Stuartholme School
Villa Nova College
Edmund Rice Education Australia
* St Joseph’s Gregory Terrace
* St Joseph’s Nudgee
* Ignatius Park College, Townsville
* St Edmunds College
* Albert Park, Gympie and Hemmant, Inala, Ipswich, Mt Isa, Noosa Flexi Learning Centres
* The Centre Education
* St Brendan’s College, Yepoon
* St Lawrence’s College
* St James College”

[32] As to the proposed order [1] c. in the first draft interim order, as it concerned the parties to be bound by the orders, I note that:

• the Roman Catholic Trust Corporation for the Diocese of Toowoomba was not one of the four applicant employers, and its employees were not otherwise identified in the initiating process as respondents to the application/to be bound by any order that may be made;



• the schools listed in the Schedule to the draft order apparently were not schools operated by the four applicants, and its employees were not otherwise identified in the initiating process as respondents to the application/to be bound by any order that may be made.

[33] No application had been made to join additional applicants to the application and nor had there been any application made or determined to add additional respondents. It may be noted that the file materials comprising the emails from Minter Ellison indicated that Minter Ellison had, the day prior, advised the IEU that while it acted for diocesan employers, it did not act for the Toowoomba diocese. This notwithstanding, the first draft interim order that was proposed by consent included reference to The Roman Catholic Trust Corporation for the Diocese of Toowoomba, along with the other employers/employees concerning the schools in the Schedule to the draft interim order.

[34] As to other matters, I note that the preamble to the first draft interim order read:

“In circumstances where the Fair Work Commission is unable to determine Application C2015/7516 within the period prescribed under section 420(1) of the Fair Work Act 2009 (being 2 days after the application is made) the Fair Work Commission must, within that period, make an interim order that the industrial action to which the application relates stop, not occur or not be organised.”

[35] Upon resumption of proceedings after I had perused the draft directions and first draft interim order, discussion ensued in the proceedings about matters including:

• That I had perused the documents and had a concern about them.



• That the matter had come before the Commission with an application for urgency, whereas under the draft directions the hearing would not be listed for approximately one month.



• That despite the preamble in the first draft interim order suggesting that the Commission was unable to determine the application within two days after the application was made, it was not the case that I was relevantly unable to determine the application. I added that it appeared the determination would turn on a quite discrete basis concerning two sets of text arising from the orders of Booth C – about staff meetings and one other matter.

[36] Mr Spriggs submitted he understood that the applicants’ request for urgency related to their desire to obtain a situation where the contested bans were no longer taking place; and the first draft interim order accommodated that situation.  Part of the delay envisaged in the draft directions stemmed from the IEU’s request to assemble material to defend the substantive application. With urgency removed by the making of the first draft interim order, Mr Spriggs’ submissions continued, the technical argument about what is or is not subject to the ban would then be determined at a time that would allow both parties to assemble their best case. Ms Kavanagh submitted the applicants certainly were in a position to argue the application on very short notice and that it was the IEU which was seeking an extension of time within which to prepare their materials (albeit I note that on the face of the proposed draft directions, the first round of materials referred to the filing and service of further materials for the applicants).  Ms Kavanagh agreed with Mr Spriggs’ submission that once an interim order was in place the urgency for the applicants would dissipate; but she also reinforced that it not was the applicants which were seeking any delay.

[37] I reiterated it was my preliminary view that this was an application which ought not take much time (i.e. certainly not as much as suggested in the draft directions) and that, unless I was mistaken, this application simply turned on the question of certain text in the orders. I further indicated it was not apparent why this was a matter which could not be argued substantively that day, or in the balance of that week; and it was not apparent why the matter requiring determination would require two days of hearing. In response to my seeking reconfirmation that this was a matter which just turned on the question of the text of the orders, both the representatives confirmed that was the case – albeit the materials before me in the application coupled with the submissions of Mr Spriggs indicated there was, in short form, dispute concerning the import, including historical import, of certain words contained in the orders made by Booth C. I expressed the view that an application under s.418 of the Act may not be an appropriate vehicle to be determining historical matters in circumstances where the words of the order provide as they do and a plain reading of those words was available. I stated to the representatives that if there was to be any guidance in that regard, the parties may wish to read The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited[2014] FWCFB 7447. I noted that although that decision considered the question of interpretation of enterprise agreements some of the principles as to construction considered in that decision may well be apposite to the construction of orders of the Commission.

[38] As to the timing proposed in the draft, Mr Spriggs added that the proposed dates were determined in regard to the availability of the IEU’s legal representative.

[39] I informed the advocates I was not minded to make either the proposed directions or the first draft interim order put forward by consent.

[40] As to the first draft interim order, I also inquired as to the identification of certain schools/employers in that draft order. Ms Kavanagh submitted that her instructions were to seek that the order apply to the applicants and to (other) Catholic religious school employers as action was currently being taken against them. I sought further clarification, concerning the first draft interim order, as to whether it would apply to schools or persons neither relevantly applicants nor respondents to the application as filed. Ms Kavanagh confirmed that the applicants were limited to four diocesan employers identified in the application, but that the first draft interim order included other employers/schools beyond those coming under the auspices of the four diocesan applicants. Ms Kavanagh confirmed that none of the schools listed in the Schedule to the first draft interim order was a diocesan school; she advised the schools in the Schedule are religious institute schools.  Ms Kavanagh submitted she did not propose “to push that point” and that she had alternative draft orders. I indicated that in circumstances where, earlier that day, I had already raised concern that the scope of schools and/or persons employed in those schools to which reference had been made went beyond the scope of the four applicant employers, that it was inappropriate – and self-evidently inappropriate – to present a consent draft interim order of the type before me. An apology was proffered.

[41] As to the draft directions, I next sought advice as to when school term would finish. Mr Spriggs submitted that, depending on the schools, the dates ranged from 27 November to 11 December 2015 - with the result some schools would reach the end of the school year before the proposed hearing dates. Mr Spriggs submitted that would benefit the IEU in terms of its witnesses’ inconvenience being reduced. I stated that reducing witness inconvenience was not a legislative consideration and it seemed the application was, perhaps, being used as a vehicle for the determination of some matter other than the text of the order and whether the industrial action being taken was protected industrial action. Ms Kavanagh submitted that the intention of the application is to have the words of the order and the notice interpreted. Mr Spriggs submitted that, although it would be a rarity, the IEU agreed with the applicants in that regard; and that that discussions to date had turned on how the words in the order and the notice are to be interpreted.

[42] I inquired whether the phrases were otherwise contained in industrial instruments. Mr Spriggs submitted that was something he anticipated would be the subject of argument in the substantive case. Ms Kavanagh submitted that it was her understanding that one of the phrases (“scheduled ‘non-contact time’”) was not, or no longer, contained in an industrial instrument. In that regard, there was an interpretive issue and what the applicants reasonably understood to be entailed concerning the orders and the like, as against the advice provided by the IEU to it members in relation to the taking of industrial action. I then canvassed matters concerning the wording in the order made by Booth C whilst also noting that I had, to that point, not had an opportunity to read all the materials (because another hearing before me had only just concluded) and that nothing I was about to say should be taken to be expressing any concluded view; and I also explored whether there might be some possibility for resolution where there was, for instance, dispute as to the linguistic differences between the parties about “staff meetings” as against “meetings of staff”. Mr Spriggs indicated there was a difference of opinion between the applicants and the IEU as to whether the expression “staff meeting” (as used in the order by Booth C) was broad enough to encompass, for example, a fortnightly meeting of a sub-group of staff to address what is happening in the English department – with the applicants, on the other hand, considering that the term “staff meetings” was limited to a whole-of-staff or a whole-of-academic-staff meeting which is held generally somewhat less regularly.

[43] Mr Spriggs submitted that the combination of words, “scheduled ‘non-contact time’”, does not appear in any current industrial instrument. He gave a synopsis as to matters by way of an example involving a hypothetical secondary school teacher’s hours of work comprising three components: (1) “contact time”, which is limited to how many hours a week there can be; (2) “preparation and correction time”, which is 20 per cent of the teacher’s contact time; and (3) “other duties”, including playground supervisions, supervisions of other classes, religious observances and various other duties. Mr Spriggs submitted that the IEU’s intention in referring to “non-contact time” was that it was anything other than what was defined in the enterprise agreement as contact time – and that was the IEU’s rationale in using the term.

[44] Ms Kavanagh submitted, particularly by reference to Esso Australia Pty Ltd v The Australian Workers’ Union [2015] FCA 758 (“Esso”), that in circumstances where it is not clear on the reading of the notice or the orders what is intended by the industrial action it is not for the union in this case to then take the more preferred view.  Employers should understand what the industrial action is to be taken, the submissions continued, and they must understand its scope and what is entailed to enable them to make preparations or take action as they might. Here, the fact of the discussion and the further explanation provided by the IEU about the meaning of the terms in question gave weight to the concern that the order and notice are unclear, uncertain or unambiguous – and that interpretation should not favour the IEU’s interpretation.

[45] The proceedings adjourned on bases including that:

• I declined to make, at least at that point, either the first draft interim order or the consent draft directions.



• I suggested ways to potentially resolve matters and the parties agreed to continue discussions.



• I also indicated that I did not consider that an application of this nature, particularly given the statutory imperatives to deal with s.418 applications quickly, is an appropriate vehicle for the parties argue the historical construction of the meanings of “staff meetings” and “scheduled ‘non-contact time’”; and that principles of construction concerning ordinary meanings may have some presumptive applicability.

[46] My reasons for declining to make the first draft interim order in the terms proposed by consent of the applicants and the IEU included that, while I had a general appreciation from the papers I had read to that time and the submissions that had been made, I had not, to that point in time, had an opportunity to either properly read or read in full all the materials.

[47] Separately and more particularly, I was deeply concerned about what, in my provisional view, amounted to the applicants and the IEU proposing by consent an interim order which would bind employees and employers other than the applicants and their own employees. In this regard, I note also s.418(2) of the Act specifies that an order may (only) be made on the Commission’s own initiative or, on the 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.

[48] The applicants were not persons affected or likely to be affected directly or indirectly by the (alleged) industrial action at schools which were not within their bailiwicks, such as religious institute schools. In this regard, for example, Ms Kavanagh had confirmed that the schools in the Schedule to the draft interim order were religious institute schools, not diocesan schools. Moreover, I also note Minter Ellison had sent an email to Mr Burke advising that it did not act for the Toowoomba diocese (although that is not to suggest that Minter Ellison did not subsequently obtain instructions to act for the Roman Catholic Trust Corporation for the Diocese of Toowoomba).

[49] After submissions including a recapping the parties’ respective positions as to the meaning of the two phrases in dispute and related matters, Ms Kavanagh submitted that her clients had agreed to an extension of time suggested by the IEU for the matter to be heard, albeit they were also content for the application to be heard much earlier than that.  Ms Kavanagh submitted that discussion could continue overnight and that the matter be relisted at a time convenient to the Commission, to discuss the matter further and to make further submissions. Mr Spriggs indicated that the IEU was similarly content to continue discussion.

[50] The matter was put-over to 2.00pm the following day, Thursday 5 November 2015, for mention and/or hearing.

[51] At 12.17pm on Thursday 5 November 2015, Mr D Williams, a partner with Minter Ellison, sent correspondence to my Associate which read:

“In advance of the hearing at 12 noon [sic] (EDT), I attach the Applicant’s [sic] written submission.

However the Applicants accept that for the reasons which have been explained by the Respondent on record, it might be unfair to the Respondent for the matter to proceed to hearing today because of the complexity of the issues, the volume of material and its reasonable desire to brief Counsel.

Therefore the Applicant [sic] seeks an interim order pursuant to s.420(2) of the FW Act. The terms of an interim order which might be made have previously been agreed between the parties and supplied to Chambers. A further version is attached with minor suggested amendment to [5] and [7] to avoid a perception that the Interim Order would require protected action to proceed (rather than not affecting that action).

I am also in a position to advise that the parties have met this morning to attempt to resolve matters in dispute, but resolution has not been reached.” (Emphasis in original)

[52] The submissions that were filed and served on behalf of the applicants were not filed pursuant to any directions or permission. I might also note that the advice from Mr Williams about the extent of the changes in the second draft interim order proposed by the applicants was incorrect or, at the least, incomplete. Minter Ellison advised only that the further version had minor amendment to clauses [5] and [7]. There were minor changes to those clauses, but, despite the advice provided to the Commission as to the changes in the amended draft interim order:

• the preamble that was contained in the first draft interim order concerning the Commission being unable to determine the application within the period prescribed in s.420(1) of the Act had been removed in the second draft interim order;



• the reference to employees working in schools operated by the Roman Catholic Trust Corporation for the Diocese of Toowoomba in clause [1]c. of the first draft interim order had been removed in the second draft interim order;



• the reference to employees working in the schools listed in the Schedule in clause [1]c. of the of the first draft interim order had been removed in the second draft interim order;



• the wording of clause [4]b. in the second draft interim order had been amended such that unprotected industrial action was described to mean any bans on work during non preparation and correction time non-contact time as provided under clauses s5.2.3 and s5.4 of the Catholic Employing Authorities Single Enterprise Collective Agreement – Diocesan Schools of Queensland 2012 rather than in the “applicable enterprise agreements” as in the first draft interim order;



• clause 6 of the second draft interim order removed reference to bans on work concerning clause s5.2.2 and 7.14 of the Catholic Employing Authorities Single Enterprise Collective Agreement – Religious Institute Schools of Queensland 2012;



• the Schedule with a list of schools, which had formed part of the first draft interim order, did not form part of the second draft interim order.

[53] Notwithstanding that the applicants’ solicitors determined unilaterally to email to my Associate submissions and an amended draft interim order prior to the 2.00pm listing in circumstances where directions had not been issued nor permission granted, I determined to read the submissions and draft order. I had, by then, also had the opportunity to properly read the materials that had been already been filed by the applicants in support of the application. As things transpired, the materials before the Commission were not as voluminous as they had first appeared, because Mr Hill’s statutory declaration had annexed to it approaching 500 pages of the Catholic Employing Authorities Single Enterprise Collective Agreement – Diocesan Schools of Queensland 2012. The other annexures were all of a very moderate size for reading purposes, comprising single-page annexures and annexures containing only a small number of pages. Quite a number of the small annexures to the statutory declaration had, in any event, been read by me because they also formed attachments to the initiating process. My reading of the materials concerning the application was also better-informed given I had had the benefit of the submissions of Ms Kavanagh and Mr Spriggs in the proceeding on Wednesday 4 November 2015.

[54] In the proceeding on Thursday 5 November 2015, there was a change of appearance, with the applicants being represented by Mr Williams. Mr Spriggs continued his appearance for the IEU.

[55] Mr Williams began by apologising for sending the submissions, and in that regard referred to my Associate having drawn attention to the Special Notes attached to the Notice of Listing. I indicated that I had, in any event, read the applicants’ submissions as well as the other documents. Mr Williams and Mr Spriggs reported to me that no resolution had been reached as a result of the further discussions.

[56] I inquired of Mr Williams whether I would be correct in assuming that in relation to a hearing that may unfold, that the applicants would be relying on the material and submissions that had been filed and which I had read. Mr Williams noted the consent draft directions (which I had declined to make the day earlier) provided for the possibility of additional material which, Mr Williams thought, may have been directed towards the possibility that some other applicant employers may seek to permission join the proceedings. Mr Williams submitted that he was not instructed that there was any intention to file any more affidavit material, but wished to reserve a right to reply to any material filed by the IEU.

[57] I inquired of Mr Spriggs whether the matters that the IEU would be relying upon in opposing the application were, in short form, the types of matters stating the IEU’s position as to the operation of the protected action ballot order set out in a number of the annexures to Mr Hill’s statement as it concerned the two key areas the subject of this application. Mr Spriggs indicated that the answer “would unfortunately have to be yes and no”.  He noted that much of the material attached to the statutory declaration set out how the IEU believed matters should be interpreted but none of that material contained a detailed argument as to why that should be so (being detail, as to the applicants’ interpretation, included in Mr Hill’s statutory declaration).

[58] Having advised the parties I had read the materials and submissions then before the Commission, and having received confirmation: (a) from Mr Williams that he was not instructed that any further evidence other than any in reply to the IEU’s materials; and (b) from Mr Spriggs that matters upon which the IEU would be relying would comprise a more detailed exposition of matters already set out in the annexures to Mr Hill’s statutory declaration concerning the interpretation for which the IEU contended, I stated that I thought it appropriate to draw to the parties’ attention certain provisions of the Act, namely s.420(1), s.420(2) and, as to those provisions, s.418(1).

[59] I informed the parties that noting the materials that would be relied upon by the applicants were those already before me, that I was bound to say (and that, on one view of it, that this may be regarded as my determination in relation to the application), that within the meaning of s.418(1) of the Act and taking the applicants’ materials and submissions at their highest (and without the benefit of any elaboration in opposition to the application that the IEU may make) it did not appear to me that the industrial action by one or more employees concerned would not be protected industrial action. I advised that I had not, as it were, formed that requisite opinion.

[60] Mr Williams asked to have the opportunity to make some submissions about that at that time, and that opportunity was given. Mr Williams sought clarification as to whether my remarks meant that I had not formed a view, pursuant to s.420 of the Act, that it is not practicable for the application to be determined or, in other words, I had decided it was practicable to determine the matter that day.

[61] I noted it is a prerequisite to the making of an order, whether an interim order otherwise, that it must appear to the Commission that there is unprotected industrial action occurring, etc.  I indicated that on my reading of the protected action ballot order and having considered the materials advanced in support of the application, it did not appear to me that unprotected industrial action was occurring.

[62] Mr Williams submitted in relation to the application of s.420 of the Act, it would be that if under s.420(2) I was able to determine the application, then the “statutory command” in that sub-section would be for an order to be made irrespective of whether or not it appeared to me that the industrial action was unprotected. I reiterated that I considered I could determine the matter even taking the applicants’ materials at their highest that I considered myself to be in a position to determine, from the evidence and submissions before the Commission – that it did not appear to me that unprotected industrial action was occurring.

[63] Mr Williams advised that, before I made a determination, he wished to make some brief submissions and also to read and rely upon the written submissions. Mr Williams then made those submissions. At the conclusion of those submissions, I noted that the matters the subject of the oral submissions were addressed in the materials that I have already read. Mr Williams acknowledged this was so, and indicated that there were some matters which he thought required emphasis. Mr Williams made further submissions, including a submission about the “uncontested evidence” albeit the applicants had indicated they would cooperate with a timetable which would allow that evidence to be contested. Mr Williams submitted that as things stood that day, the applicants’ evidence was uncontested and, therefore, if the matter was to be determined, it must be determined in favour of the making of an order as compelled by s.418 of the Act.

[64] Mr Williams submitted if the matter were to be determined that day, it would be an error, and it could only be an error given the “uncontested nature of the proceedings” for the matter to be determined other than in favour of the application being granted and orders being made.  Mr Williams submitted that he had sought to emphasise in his submissions matters which compelled that course of action. I noted that I make my own assessments of evidence, authorities and submissions. Mr Williams requested that if I were to determine the application that day in a way which did not grant orders, that reasons be given.

[65] Having confirmed that there was nothing else that Mr Spriggs or Mr Williams wished to say, I dismissed the application on the basis that it did not appear to me that industrial action by one or more employees that is not or would not be protected industrial action was happening or was threatened, impending or probable or was being organised.  I also indicated I would publish reasons.

Consideration

[66] The protected action ballot order identified the questions to be put, including:

“(ii) employees will not attend, for an indefinite period, staff meetings, and will instead meet to consider industrial issues including the progress of bargaining for an enterprise agreement; and

(iii) employees will ban, for an indefinite period, any duties during their scheduled ‘non-contact time’ other than preparation directly related to the teaching of students and the assessment or marking of student work; and”

[67] In ballots conducted by the Australian Electoral Commission, employees authorised the taking of industrial action including the above.

[68] The IEU gave written notice for the purpose of s.414 of the Act as to the nature of the industrial action being:

“(ii) employees will not attend, for an indefinite period, staff meetings, and will instead meet to consider industrial issues including the progress of bargaining for an enterprise agreement;

(iii) employees will ban, for an indefinite period, any duties during their scheduled ‘non-contact time’ other than preparation directly related to the teaching of students and the assessment or marking of student work;”

[69] IEU correspondence to members issued as a Chapter Briefing dated 4 September 2015 indicated the dates in question for the commencement of industrial action, and advised:

“Commence work bans (for an indefinite period) – Ban on attending meetings of staff and a ban on undertaking duties during scheduled non-contact time other than those directly related to planning, preparation and correction. This in effect also includes a ban on undertaking relief classes.”

[70] IEU correspondence issued to members as a Fact Sheet dated 7 September 2015 addressed matters including the following:

“How will the work bans operate?

Members will commence a ban on attending meetings of staff (e.g. full staff meetings, morning briefings, departmental meetings etc.).

Members will also ban the undertaking of duties in scheduled non-contact time other than those directly related to planning, preparation and correction.

The non-contact time ban applies to that time scheduled within a teacher’s timetable that is identified as such (not including Middle/Senior Leader release). This mean that the teacher cannot, for example, be required to answer emails, attend administrative meetings or undertake supervisions or covers during their timetabled release.

[71] The IEU further advised in a Chapter Briefing dated 11 September 2015:

“The banning of attendance at staff meetings/meetings of staff is legitimate Protected Industrial Action.

In a sign that the bans are having an impact, employers are providing incorrect information to employees in an apparent attempt to intimidate employees from taking legitimate protected action in support of their log of claims. A ban on attending staff meetings is not limited to whole of staff events. The ban on attending staff meetings includes all meetings of staff such as those which may be arranged on a year level or subject level basis and any other meeting involving staff. The ban also includes support staff not attending a support staff meeting.
…
Employer information inaccurate

It is not for the employer to unilaterally define the nature of the Protected Industrial Action which was endorsed by employees in a ballot authorised by the Fair Work Commission. There can be absolutely no justification for a claim that the expression ‘staff meeting’ should be interpreted as meaning a whole of staff meeting. Nor is there a provision in any formal industrial document which would support the assertion that the expression ‘staff meeting’ should have any meaning of its literal meaning of a meeting of staff.

It is also appropriate to note that the Catholic employing authorities did not object to an application of the literal meaning of ‘staff meeting’ when employees implemented this form of Protected Industrial Action in 2012.
…
Members should continue their bans on staff meetings/meetings of staff to reinforce the message that employers must listen to the real concerns of employees.”

[72] The IEU issued further Chapter Briefings, such as one to similar effect dated 6 October 2015:

“… Those Chapters which have authorised protected action will maintain their bans of meetings of staff and the ban on undertaking duties during scheduled non-contact time other than those related to planning, preparation and correction.”

[73] In an advice to school principals concerning industrial action-related matters, the Executive Director of the Brisbane Catholic Education Office (“the Executive Director”) wrote in terms which included her view about the import of the orders, and what was comprehended thereto (being a view that relevantly differed from that of the IEU). That correspondence read, in part:

“… It should be noted that the indefinite bans relating to non-contact time and staff meetings is still available as per the IEU’s previous notice of protected industrial action provided at the end of Term 3.
…

Confirmation of meaning of staff meeting

Some questions have been asked around the protected industrial action work ban on attendance at staff meetings.

The common understanding of a staff meeting within our schools refers to the formal, regular and gazetted scheduled for all (usually teaching) staff. You may be aware of information provided by the IEUA-QNT to their members that the work ban pertains to all “meetings of staff”.

In my view, the protected action authorised by the recent ballot extends to “staff meetings” as commonly known within our schools and does not extend to other meetings of staff which occur throughout the day both as formal and informal departmental and/or specific needs based meetings.

These other meetings of staff should continue as normal.”

[74] On 19 October 2015, the IEU gave written notice for the purpose of s.414 of the Act as to the nature of the industrial action including:

“employees will ban, for an indefinite period, any duties during their scheduled ‘non-contact time’ other than preparation directly related to the teaching of students and the assessment or marking of student work.”

[75] There also was evidence of miscellaneous documents, including, but not limited to, matters such as IEU advice about:

• arrangements concerning undertaking replacement lessons;



• bans on attending staff meetings (before and after school, department and house meetings, AL and PL meetings, Executive meetings);



• bans applying to all spare periods, whether they are the minimum Planning, Preparation and Correction Time or in excess of the minimum.

[76] The IEU also wrote to the Executive Director on 30 October 2015 in the following terms:

“The IEUA-QNT has become aware of advice provided to employees in schools wherein BCE is asserting that various forms of protected industrial action being taken by employees are, in the opinion of BCE, not protected. For· example, we are aware of material received by employees on 26 October 2015 under your name in relation to staff meetings.

Of concern is the reported threat by BCE that employees will have four hours pay deducted in relation to their participation in the contested forms of industrial action. The rationale provided by BCE for the threat to deduct four hours pay is that the employer must, under section 474 (1) (b) of the Act, withhold that quantum.

The issue of substance, however, is whether or not the action being taken by employees is protected industrial action. We are aware that BCE has, for a period longer than four weeks, proffered the view that the action involving staff meetings is not protected industrial action.

It is more that [sic] strange that BCE has done nothing over such a substantial period of time to seek to rectify what it claims to be the taking of unprotected action.

BCE is choosing to threaten individual employees (the vulnerable and least empowered) rather than taking the simple step of brining the purported ‘unprotected’ action to the attention of the Fair Work Commission consistent with s 418 (1) of the Act where the remedy for such alleged ‘unprotected’ action is clearly provided. The decision to take up the argument with individual employees rather than with their bargaining representative (the IEUA) is quite unacceptable and the practice must cease.

By its actions BCE seems to be identifying to its employees that it is more interested in threatening individual employees rather than ensuring that (what it views as) unprotected action cease. This would further seem to be an attempt to pressure employees not to participate in legitimate protected industrial action.

We therefore request that BCE forthwith cease making threats against individual employees in relation to what does, or does not, constitute protected industrial action.”

[77] To similar effect, there was evidence of IEU email correspondence of 2 November 2015 which read:

“Dear Principal

The current protected industrial action in Catholic Schools involves:

- employees not attending “staff meetings”; and

- a ban on any duties during “scheduled ‘non-contact time’” other than preparation and correction.

The IEUA-QNT is aware that BCE has provided an interpretation of the terms “staff meetings” and “non-contact time” which is different from the interpretation we have provided.

The term “staff meeting” includes meetings of staff and is not limited to a whole of academic staff event.

The term “non-contact time” is any paid time other than “contact time” as defined in the Schedule to the collective Agreement.

Where a disagreement exists in relation to what actions constitute protected action (and what actions do not) the Act provides a mechanism for an application to the Commission by an employer seeking an order that unprotected action cease. The Act does not contain a provision for an application by a Union that the authorised protected action is protected action.

The BCE has made no such application to the Commission.

The IEUA-QNT has written to BCE requesting that the employer cease its attempts to dictate what does, or does not, constitute protected action. A copy of our letter is attached.

The taking of protected industrial action by employees involved in collective bargaining is a last resort. Employees should be permitted to take such action in accordance with the Act.”

[78] The statutory declaration of Mr Hill indicated that the protected action ballot order was made in the terms sought by the IEU, including the questions concerning non-attendance at staff meetings and bans on any duties, other than the specified excepted duties, during scheduled non-contact time. Mr Hill deposed that around the time of the making of the application, there was no elaboration concerning the meanings of staff meetings and scheduled non-contact time.

[79] While the IEU’s application for the protected action ballot order was not opposed, Mr Hill was of the understanding that the lack of opposition to the application, including the terms used in questions, had as its basis that the terms would have the meanings set out in the enterprise agreement, and the action would be limited to a ban on staff meetings and a ban on other activities (other than related to teaching and marking/assessment) during planning and preparation time. Mr Hill ventured his opinion that it was reasonable to conclude that employees voted to take action on what were commonly-understood meaning of the terms “staff meetings” and “scheduled ‘non-contact time’”.

[80] Mr Hill further deposed that had it been understood that bans would apply to all meetings of staff and all activities during non-preparation and correction time, the application would have been resisted - at least on the basis that the application was ambiguous and uncertain with respect to these matters.

[81] Mr Hill’s statutory declaration drew attention to various IEU communications about which, in short form, he made observations concerning the content of the questions voted upon as against advice in the IEU communications. Mr Hill also described his understanding of discussions/other communication as between IEU representatives and employer representatives concerning differences of opinion as to what was, and what was not, comprehended by staff meetings and scheduled non-contact time, and related matters.

[82] While Mr Hill’s evidence was uncontested by any countervailing evidence that may have been presented by the IEU and was not the subject of cross-examination, his evidence was uncontested only in the sense that I did not consider, as it were, that I needed to hear evidence and submissions from the IEU based on my own consideration of what was before me and taking matters advanced by the applicants at their highest.

[83] Section 418 of the Act reads as follows:

“418 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.”

[84] The applicants’ submissions contended that based on the activities described within those submissions, the IEU had organised industrial action relating to the negotiation of a new enterprise agreement to replace the existing agreement. The applicants submitted that any IEU direction or advice to employees:

“(A) not to attend meetings of staff, other than ‘staff meetings’;

(B) to ban work (other than bans instituted under paragraph (iv), (v) and (vi) of the order) undertaken during non PCT or PPCT (as provided under clauses s5.2.3 and s5.4) other than preparation and correction time”

was not protected industrial action, as such action was not:

• the form of industrial action provided by the ballot or approved by employees during the ballot;



• reasonably understood by the applicants to be permitted by the ballot;



• consistent with the industrial action permitted by the protected action ballot order;



• consistent with the notice(s) provided by the IEU to the applicants under s.414 of the Act.

[85] The submissions continued that the orders that apply to the taking of protected industrial action in this case extend to staff not attending “staff meetings” or to a ban on attending to duties, other than correction and preparation, during PCT. Instances where employees had refused to attend meetings that are not staff meetings or have refused to attend to duties, other than correction and preparation, during other duties time as provided in clauses s5.2. 3 and s5.4 of the enterprise agreement (except where protected industrial action had been instituted under paragraphs (iv), (v) or (vi) of the order and the notice), amounted to instances of unprotected industrial action.

[86] I have approached this matter in accordance with the following approach described in Esso:

“92. Section 418(1) of the FW Act contemplates that the Commission should, first, consider whether industrial action is happening, is threatened, impending or probable, or is being organised by one or more employees or employers, and if so, secondly, consider whether that industrial action is not, or would not be, protected industrial action, and if so, thirdly, make an order that the industrial action stop, not occur or not be organised, as the case may be, for the specified period. …
…
105. Returning to the legislation in its present form, the following may be said about subs (1) of s 418, taken together with subs (3) of the section. First, the Commission must commence by identifying what “appears” on the material before it. That is, it must make findings of fact. Those findings must incorporate the Commission’s conclusions as to whether industrial action is happening, is threatened, impending or probable, or is being organised. They may, of course, involve conclusions in two or more of those categories, depending on the case.

106. Secondly, the Commission must form a view as to whether the industrial action so identified is not, or would not be, protected industrial action. It is apparent from the provisions of Div 2 of Pt 3-3 of the FW Act that that question may be of some complexity in itself. Only if the Commission identifies industrial action in one or more of the categories referred to which is not, or would not be, protected industrial action will it move to the next stage.” (My underlining)

[87] Here, firstly, it is plain, as a matter of fact, that at the time I determined this application, industrial action was then happening, was threatened, was impending or probable, and was being organised. Secondly, commencing with the identification of what appeared (or more accurately, then appeared, given I have already determined the application) on the material before the Commission, I formed the view that the industrial action so identified was protected industrial action. Approached another way, it did not appear to me that industrial action was not, or would not be, protected industrial action.

[88] The meanings of “staff meetings” and, in any educational setting, the meaning of “non-contact time” and, collaterally, “scheduled ‘non-contact time’” could not reasonably be considered to be, for example, ambiguous or obscure; and nor are they, industrially, some form of terms of art notwithstanding the applicants’ contention that they should be conditioned in the manner for which they advocated. The words “staff meetings” and “scheduled ‘non-contact time’” were used in the protected action ballot order which was not opposed by the applicants; and the employees voted as they as they did.

[89] The communications of the IEU concerning staff meetings describing them as involving any meetings of staff were, considered in the context of the questions put to a vote following the protected action ballot order, open, available and unremarkable in exampling for its members that “staff meetings” comprehends any staff meetings (rather than only the types of staff meetings for which the applicants contended). The communications of the IEU as to “scheduled ‘non-contact time’” were similarly open, available and also unremarkable in exampling for its members what may occur in relation to bans in times other than during contact time.

[90] The IEU’s s.414 notice(s) adequately gave notice specifying the nature of the action and the day(s) on which it would start; and, in so concluding, I have considered the submissions relied upon by the applicants concerning the following passage from Esso:

“86. The task for the court is not the conventional one of the construction of a document, with a view to understanding what the author intended. The document with which we are concerned here was a notice: its purpose was to convey information. Thus the question is not what the author intended, but what the addressee would reasonably have understood from the terms used in the notice. Two things follow from this. First, if the notice might reasonably carry more than one denotation, I see no reason to err on the side of the giver of the notice, thereby permitting him or her to take advantage of his or her own ambiguity. The FW Act leaves it entirely to the giver of the notice to identify the “nature” of the action intended to be taken, and it should not be open to him or her to complain if the terms chosen leave scope for the addressee to see things differently from what the giver, subjectively, might have had in mind. Secondly, it would not be sufficient for the respondent to establish what its own members understood by the presently contentious expression. Even if they knew what they meant by “de-isolation of equipment”, the question is what the applicant’s management would reasonably have understood by that expression.

87. Although I have noted above that the judgment of Wilcox and Cooper JJ in Davids Distribution does not directly provide the answer to the present question, one aspect of that judgment which is here valuable is the identification of the purpose of a notice of industrial action given under the predecessor to s 414 of the FW Act. Their Honours saw the purpose as enabling the party who would be adversely affected by the intended action to take appropriate defensive action. Their Honours recognised the importance of a defending employer, for example, having the opportunity to protect sophisticated equipment from damage. In my view, it is no less important for the affected party to know what functions, operations, etc will not be touched by the intended action. To take an example far from the facts of the present case, an employer handling perishable foodstuffs should be entitled to assume, with confidence, that its operations will not be affected beyond those notified to it under s 414 of the FW Act. Understood in this sense, the notification of industrial action has a negative, as well as a positive, dimension, each of which may be perceived as within the broad purpose of the statute.”

[91] Consistently with my conclusion that the meanings of “staff meetings” and “scheduled ‘non-contact time’” could not reasonably be considered to be, for example, ambiguous or obscure, equally the notices could not reasonably be, it seemed to me, considered to have carried more than one denotation. The giver of the notice(s), the IEU, identified the nature of the action intended to be taken – certain bans concerning staff meetings and scheduled non-contact time. The IEU does not “complain” in the sense described in Esso. Rather, it is the applicants which seek, on one characterisation of it, to recast or retrofit the protected action ballot order and the questions put to the voters. The applicants’ proposed orders in this regard concerned, among other matters, defining unprotected industrial action as follows:

“[4] For the purposes of this Order, the expression ‘unprotected industrial action’ means action of any of the following kinds:

a. any bans on ‘meetings of staff’ (other than regularly scheduled whole of staff or whole of academic staff meetings).

b. any bans on work during non preparation and correction time non-contact time as provided under clauses s5.2.3 and clause s5.4 of the Catholic Employing Authorities Single Enterprise Collective Agreement – Diocesan Schools of Queensland 2012. For the avoidance of doubt, Employees can be directed to perform duties, other than preparation and correction, during non preparation and correction time non-contact time.

[5] Bans relating to regularly scheduled whole of staff or whole of academic staff meetings are not affected by this Order.

[6] Bans on work, other than preparation and correction, during preparation and correction time provided under clauses s5.2.2 and clause 7.15 of the Catholic Employing Authorities Single Enterprise Collective Agreement – Diocesan Schools of Queensland 2012 are not affected by this order.”

[92] An acceptance of the applicants’ contentions would presuppose that the protected action ballot order as to the questions to be put to voters were something along the following lines (borrowing directly some of the text from the second draft interim order):

“(ii) employees will not attend, for an indefinite period, staff meetings [place] any bans on ‘meetings of staff’ (other than regularly scheduled whole-of-staff or whole-of-academic-staff meetings), and will instead meet to consider industrial issues including the progress of bargaining for an enterprise agreement; and

(iii) employees will ban, for an indefinite period, any duties during their scheduled ‘non-contact time’ work during non-preparation and correction time non-contact time as provided under clauses s5.2.3 and clause s5.4 of the Catholic Employing Authorities Single Enterprise Collective Agreement – Diocesan Schools of Queensland 2012 (but noting that employees can be directed to perform duties, other than preparation and correction, during non-preparation and correction time non-contact time; and excepting preparation and correction, during preparation and correction time provided under clauses s5.2.2 and clause 7.15 of the the Catholic Employing Authorities Single Enterprise Collective Agreement – Diocesan Schools of Queensland 2012) other than preparation directly related to the teaching of students and the assessment or marking of student work; and …”

[93] Questions along these lines, with the conditions for which the applicants contend, were not the subject of the protected action ballot order and the questions put to the voters. Any failure by the applicants in not seeking, as was then open to them, any amendment to the questions proposed to be put in the proceedings before Booth C for the making of the protected action ballot order with its questions cast as they were, cannot now be cured by asserting that unprotected industrial action was happening; or was threatened, impending or probable; or was being organised by the employees concerned or the IEU, or both. The questions in the orders provided as they do, the voters voted as they did, and proper notice was given.

[94] It did not appear to me that unprotected industrial action was happening; or threatened, impending or probable; or being organised - and, as noted in Esso at [106]: “Only if the Commission identifies industrial action in one or more of the categories referred to which is not, or would not be, protected industrial action will it move to the next stage.” In the circumstances, I dismissed the application on 5 November 2015.

COMMISSIONER

Appearances:

M. Kavanagh (4 November 2015) D. Williams (5 November 2015), solicitors, for the applicants.

J. Spriggs for the Independent Education Union of Australia.

Hearing details:

2015.

Sydney;

November, 4, 5.

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