Australian Rail, Tram and Bus Industry Union v Pacific National Executive Services Pty Ltd
[2023] FWC 2771
•1 NOVEMBER 2023
| [2023] FWC 2771 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.
Australian Rail, Tram and Bus Industry Union
v
Pacific National Executive Services Pty Ltd
(C2023/6403)
| DEPUTY PRESIDENT CROSS | SYDNEY, 1 NOVEMBER 2023 |
Alleged unprotected industrial action at Pacific National Executive Services Pty Ltd Trading as Pacific National
The Australian Rail, Tram and Bus Industry Union (the RTBU) made an application pursuant to s.418 of the Fair Work Act 2009 (the Act) for an order to stop unprotected industrial action, in the form of a lockout, being undertaken by Pacific National Executive Services Pty Ltd (PN).
The Application was made at 9.22AM on Monday 23 October 2023. Accordingly, as far as practicable, the Commission must determine the Application by midnight on Wednesday 25 October 2023[1]. The matter was first listed for Hearing at 3.00pm on 23 October 2023, with that Hearing subsequently adjourned to 4.00PM on 24 October 2023.
Background
Since around August 2022, the RTBU and PN have been negotiating for a proposed enterprise agreement titled Pacific National Service Delivery and Planning Enterprise Agreement, New South Wales 2022 (the Proposed Agreement).
On 12 October 2023, the RTBU notified PN of protected employee claim action that was to commence at 0001 hours on Wednesday 18 October 2023 and conclude at 0001 hours on Saturday 21 October 2023 (the Stoppage Notice). The Stoppage Notice provided:
Notice of Protected Industrial Action
Pursuant to Section 414 of the Fair Work Act 2009 and in conjunction with the Orders made in B2023/967 (the Orders), we provide Pacific National Executive Services (the Employer) with notice of protected industrial action to be undertaken by RTBU members as follows:
Nature of action: Stoppage of work in the form of 288 consecutive 15 minute stoppages.
Day on which action commences: 0001hrs on 18 October 2023 until 0001hrs on 21
October 2023.I take this opportunity to remind you that the Employer is prohibited by law from taking adverse action or in any way hindering our members from exercising their workplace right to take protected industrial action in accordance with the Orders.
Yours sincerely,
On 17 October 2023, PN issued a notice to all employees who are to be covered by the Proposed Agreement, confirming that the PN intended to take ‘employer response action’ to the ‘Employee claim action’ by locking out any employee who intended to participate in the industrial action, and directing these employees not to attend their place of work (the Lockout Notice). The Lockout Notice included the following:
On 12 October 2023, the Australian Rail, Tram and Bus Union (RTBU) issued a notice to Pacific National of protected industrial action (PIA) by its members.
The nature of PIA notified by the RTBU is a stoppage of work, commencing at 0001hrs on Wednesday 18 October 2023 and concluding at 0001hrs on 21 October 2023, specifically as follows:
“Stoppage of work in the form of 288 consecutive 15 minutes stoppages.”('The Stoppage’).
Pacific National has considered the significant impact of The Stoppage on our operations and the current status of the negotiations for the proposed Pacific National Service Delivery and Planning New South Wales Enterprise Agreement 2023 (Agreement). As such, Pacific National has decided it must respond to The Stoppage.
Employer Response Action
Therefore, pursuant to section 414(5) of the Fair Work Act 2009 (Cth), Pacific National hereby gives notice that if any employee engages in The Stoppage, in response, Pacific National will be engaging in Employer Response Action, commencing at 0001hrs on Wednesday 18 October 2023 and concluding at 0001hrs on Wednesday 25 October
2023 (Period).During that Period, each employee who engages in The Stoppage will not be permitted to perform any work (that is, the employee will be “locked out”). If this applies to you, you should not attend your place of work, and you will not be paid for the Period.
For clarity, if you do not engage in the Stoppage, you may continue to attend work during the Period.
This decision has not been taken lightly and has been taken due to the nature and the extent of The Stoppage, the flow on effect on operations and the current status of the negotiations for the Agreement. Our preferred option is and continues to be to focus on the negotiations for this Agreement and deliver what matters for our people, customers and shareholders.
… [Original Emphasis]
The Evidence
The RTBU relied upon three statements of Ms Amanda Perkins, an Organiser with the RTBU. The Respondent relied on one statement of Ms Sandra Deparis, People and Culture Manager of PN. Only Ms Perkins was cross-examined.
(a) Ms Perkins
Ms Perkins asserted that the Respondent commenced its lockout at 0001 hours on 18 October 2023, and that she understood that a majority of RTBU members have not worked since that time due to the lockout.
In her second statement, Mr Perkins attested:
2. The industrial action notified by the RTBU on 18 October 2023 consisted of 288 individual fifteen minute stoppages. From my discussions with members I understand that not every person was intending to participate in every single stoppage.
3. The RTBU’s members at Pacific National work in a range of different crews, teams and sections. From my discussions with members, I understand that each team was making its own arrangements as to which industrial action would be taken. Some were planning to take the entire stoppage, and others only part.
4. Members understood from Pacific National’s communication that if they planned to take any of the industrial action they would be locked out from 0001 hours on 18th October 2023.
5. I understand that Pacific National called employees around 18 October 2023 to ask if they intended to take industrial action. Many of those employees answered yes.
6. Previous industrial action involved partial shift bans. Three members from coal took a partial shift ban on their shift commencing before, and overlapping with, 0001 hours on 18 October 2023. They were locked out for the entire shift, in line with previous notification given by Pacific National. A copy of this letter is annexure D to this statement. These workers have been treated as being part of the new lockout.
(b) Ms Deparis
Ms Deparis gave detailed evidence regarding how PN ascertained whether individual employees were going to absent themselves from work in accordance with the Stoppage Notice, and how PN advised of the lock out of employees. That evidence included the following:
5. On the afternoon of 17 October 2023, I spoke to each of the following persons: Robert Jarvis, Bradley Gilbert, Michael Patterson – Superintendent Service Delivery, to ensure they understood the proper process to be followed, as agreed by the Pacific National bargaining steering committee, in preparation for the Stoppage Action commencing. Specifically, the following steps should be taken:
(a) as employees covered by the Proposed Agreement started their shifts, the Planning Managers were to ask whether they intended to participate in the Stoppage Action due to start at 00.01 on 18 October 2023; and
(b) If the employee indicated that they were, the Planning Managers, were instructed to issue a letter confirming the Employer Response Action (Lockout Letter) to the employee after they had commenced taking the Stoppage Action.
…(c) If the relevant Planning Manager was not available, the above steps should be carried out by another Manager or the relevant Superintendent.
Categories of Employees
6. The Stoppage Action and Employer Response Action followed other pre-existing forms of industrial action in which employees were engaging, including partial work bans. In some of these cases Pacific National had already issued notices (section 471(4) notices) that it would not accept “part performance” of duties.
…7. Due to various scenarios that existed, which are not presented accurately in the Perkins Supplementary Statement, I set out below the various situations in which employees found themselves and what Pacific National did in each case having discussed Pacific National’s response with each of the Planning Managers:
(a) The Employee came to work and did their full duties as normal: these employees were not subject to Employer Response Action (or an operative section 471 notice, given they did not engage in or had ceased engaging in any relevant partial work ban). They worked, and were paid for their work.
(b)The Employees who notified that they were taking personal/carer’s leave: these employees were not subject to Employer Response Action. Employees have been or will be required to produce evidence substantiating their right to paid personal/carer’s leave upon their return to work, in accordance with legislation and Pacific National policy.
(c) The Employee was at work performing their full duties until 0001, at which point they indicated that they were participating in the Stoppage Action: when these employees ceased work, they were issued with a Lockout Letter, and were subject to the Employer Response Action.
I am informed by the Planning Managers and other relevant Managers or Superintendents, and witnessed some of these conversations myself, that at or around or around the commencement of the shift at 18.00 on 17 October 2023, they asked a number of employees whether they intended to participate in the Stoppage Action, and that where Employees indicated that they were intending to participate in the Stoppage Action, the Planning Managers asked whether they understood what engaging in the Stoppage Action meant and whether they had read the Memo. After the employees commenced the Stoppage Action on or after 0001 on 18 October 2023, they were issued with the Lockout Letter.
(d)Employees who did not attend for their allocated shifts, but responded to contact from Pacific National management: these employees failed to present for work. I am informed by the Planning Managers and Managers/Superintendents on shift at various times, and believe, that they contacted these employees to conduct welfare checks, as is standard practice when an employee does not present for work without prior notice. If the employee responded to the contact, and confirmed they were participating in the Stoppage Action, the Planning Managers confirmed they were aware of the lockout.
…(e) Employees who did not attend for their rostered shift and did not respond to contact from Pacific National management: it appeared plain that these employees were either participating in the Stoppage Action, as was our assumption, or else were not attending for some other reason. In any event they were not entitled to be paid for the shift, and had been issued with the Memo and sent the Memo Text Message.
[Original emphasis]
Ms Deparis went on to outline conversations she had with particular employees, and with evidence regarding how the “three members from coal” identified by Ms Perkins were dealt with.
RTBU’s Submissions
The RTBU conceded that the point advanced in its submission was a ‘technical point’.[2] The RTBU noted, however, the relevant provisions were contained in a technical part of the Act, that involves a significant interference with the statutory and contractual rights that either party would normally enjoy. The requirements imposed by the Act are absolute, and action is either protected or it isn't. The Commission's jurisdiction is non-discretionary.
The RTBU conceded that if the Lockout Notice had provided that the lockout was to commence at 0002hrs on 18 October 2023, there would be no issue.[3]
The RTBU further submitted that s.411(1)(a) limits the scope of employer response action, to action that responds to industrial action by employees that has actually occurred,[4] and that a pre-emptive employer lockout of employees is never protected industrial action.
The RTBU submitted that while 288 fifteen-minute stoppages were notified in the Stoppage Notice, not every employee was intending to take every single stoppage, or any of them, and that RTBU members who were proposing to take the industrial action, in whole or in part, had been locked out since 12.01am on 18 October 2023. PN’s industrial action commenced before the action it was purportedly responding to did, or could, actually occur. It foreclosed the possibility of any employee taking one, some or all the stoppages.
The RTBU submitted that the lockout was a pre-emptive lockout, and not truly employer response action in the sense required by s.411(1)(a). Accordingly, the action is unprotected industrial action and pursuant to s.418(1) the Commission must make the orders sought.
Respondent’s Submission
PN submitted that the RTBU had erroneously construed the Lockout Notice. The Lockout Notice was entirely responsive to the stoppage of work engaged in by the relevant employees, as outlined in the Stoppage Notice, and was not at all pre-emptive. While the Lockout Notice also specified it was to commence at 0001hrs on 18 October 2023, it was clearly responsive and entirely conditional on any employee engaging in the stoppage notified.
PN submitted that the RTBU had erroneously construed the Stoppage Notice. The Stoppage Notice gave notice of a single 72-hour stoppage, which was either engaged in by each employee or not. The action was stated to commence at 0001hrs on 18 October 2023 and conclude at 0001hrs on 21 October 2023. Further:
(a) the Stoppage Notice specifies a single start and end time for a single item in the notice;
(b) in relation to the other mandatory requirement to specify the day on which the action will start, the Stoppage Notice does not specify separate starting days or times for individual 15-minute stoppages. The only specified start date is 18 October 2023; and
(c) the “stoppage” is said to be made up of 288 stoppages which are “consecutive”. By definition if an employee starts and stops engaging in stoppages – one option that the RTBU seems to assert they could choose – then the stoppages are no longer “consecutive”.
Finally, PN submitted that the RTBU submission proceeds on a mistaken understanding of the facts of what has actually occurred. No employee was locked out unless they engaged in the stoppage.
The Orders Sought and their Effect on Relief Sought and s.420
At 2.46PM on 24 October 2023, just prior to the Hearing, the RTBU provided the Draft Order. The Draft Order sought to restrain PN from taking, organising, and engaging in any industrial action by way of the lock out notified in the Lockout Notice, from the time an order is made (presumptively some time after the conclusion of the Hearing at 5.30PM on Tuesday 24 October 2023), until 12.01AM Wednesday 25 October 2023, some six and a half hours later.
The practical effect of the chronology is that the urging for interim relief within 2 days contained in s.420 of the Act is not engaged due to the effluxion of time specified in the Lockout Notice.[5] As noted above, pursuant to s.420(1), as far as practicable, the Commission must determine the Application by midnight on Wednesday 25 October 2023.
Further, PN submitted that an order would not be made as the necessary jurisdictional fact, being that industrial action is happening or is threatened, impending or probable, or is being organised, is absent.
Consideration
The starting point is the construction of the Stoppage Notice. The relevant question is not what the author intended, but what the addressee would reasonably have understood from the terms used in the Stoppage Notice.[6] The Stoppage Notice provided:
Nature of action: Stoppage of work in the form of 288 consecutive 15 minute stoppages.
Day on which action commences: 0001hrs on 18 October 2023 until 0001hrs on 21
October 2023.
The only reasonable construction of the Stoppage Notice is that it notified PN of a single 72 hour stoppage. The Stoppage Notice specified a single start and end time for the action and did not specify separate starting days or times for individual 15 minute stoppages. Additionally, the “stoppage” was said to be made up of 288 stoppages which were “consecutive”.
While Ms Perkins gave evidence, without objection or challenge, that various un-named members of the RTBU were only intending to take part in some but not all stoppages in the 72 hour period, I do not understand how such members could have perceived such a course to be available considering the clear provisions of the Stoppage Notice. Were such partial action taken, it would not be “consecutive”, nor would each start and finish date have been notified. Nonetheless, such subjective considerations are irrelevant.
The Lockout Notice then directly responded to the Stoppage Notice. It accurately recorded the contents of the Stoppage Notice and advised, “Pacific National has decided it must respond to The Stoppage”. It then provided that “if any employee engages in The Stoppage, in response, Pacific National will be engaging in Employer Response Action, commencing at 0001hrs on Wednesday 18 October 2023 and concluding at 0001hrs on Wednesday 25 October
2023 (Period).” The Lockout Notice advised twice, in clear terms, that it was in response to an employee engaging in the Stoppage.
That PN chose to advise employees that the Lockout would commence at 0001hrs, rather than, say, 0002hrs, on Wednesday 18 October 2023, is of no moment. The Lockout Notice is responsive and engages the Stoppage Notice.[7] The RTBU and the employees are advised of the responsive action to be taken, and the time it commences.
While an exercise of hair splitting, PN is correct in observing that there are 60 seconds in 0001hrs on Wednesday 18 October 2023. Quite clearly, were the foreshadowed action to occur, as it did, PN would have up to 59 seconds within 0001hrs to respond. Were future action foreshadowed, it may be prudent for the RTBU to give a second maker in addition to the minute marker.
Ultimately, however, it is clear from the evidence of Ms Deparis that PN went to considerable lengths to ascertain whether individual employees were going to absent themselves from work in accordance with the Stoppage Notice prior to advising them of their being locked out.
Conclusion
The lockout action of PN did not commence before the action to which it was responding. PN took care to confirm or ascertain whether particular employees were taking stoppage action before confirming lockout action.[8]
I reject the RTBU submission that the lockout action was not truly employer response action in the sense required by s.411(1)(a), and so was not protected action.[9]
I also note that the action the subject of the Application ceased at 0001hrs on Wednesday 25 October 2023, and that the impugned action is not happening, threatened, impending, probable or being organised.
Accordingly, the Application is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr Leo Saunders, of Counsel, for the Applicant.
Mr Darren Perry, Seyfarth Shaw, for the Respondent.
Hearing details:
24 October 2023.
Sydney.
In-person.
[1] S.420(1) of the Act.
[2] Transcript PN 140, 220, 222 and 288.
[3] Transcript PN 150 and 197.
[4] AMWU v McCains [2021] FWCFB 4808 per Hatcher VP and Catanzariti VP.
[5] Transcript PN 325 and 333.
[6] Esso Australia Pty Ltd v Australian Workers’ Union (2015) 253 IR 304, at [86].
[7] CEPU v Pinnacle Career Development (2010) 190 FCR 581, at [64].
[8] S.411(1) of the Act.
[9] S.418(1) of the Act.
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