Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Henry Walker Eltin Contracting Pty Ltd
[2004] FCA 1274
•30 SEPTEMBER 2004
FEDERAL COURT OF AUSTRALIA
Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union v Henry Walker Eltin Contracting Pty Ltd [2004] FCA 1274
WORKPLACE RELATIONS – lockout – certified agreement – bargaining period – employer’s response to ongoing industrial action – whether protected action – notice requirement – to unions – to particular employees – sufficiency of written notice affixed to door of union offices – written notice to employees at mustering before transport to work site – whether prior to lockout – notices sufficient – application for breach of certified agreement and of Act dismissed
Workplace Relations Act 1996 s 170L, s 170ML(3), s 170MO, s 170MU(1)
Federal Court of Australia Act 1976 (Cth) s 23
Acts Interpretation Act 1901 (Cth) s 28AAustralasian Meat Industry Employees Union v O’Connor (1999) 96 IR 266 cited
Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 cited
Australasian Meat Industry Employees’ Union v Peerless Holdings Pty Ltd (2000) 103 FCR 577 citedAUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING & KINDRED INDUSTRIES UNION v HENRY WALKER ELTIN CONTRACTING PTY LTD
W186 OF 2004FRENCH J
30 SEPTEMBER 2004
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W186 OF 2004
BETWEEN:
AUTOMOTIVE, FOOD, METALS, ENGINEERING PRINTING & KINDRED INDUSTRIES UNION
FIRST APPLICANTAUSTRALIAN WORKERS UNION
SECOND APPLICANTAND:
HENRY WALKER ELTIN CONTRACTING PTY LTD
RESPONDENTJUDGE:
FRENCH J
DATE OF ORDER:
30 SEPTEMBER 2004
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1. The application be dismissed.
2. Any submissions as to costs to be filed in writing within fourteen days.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W186 OF 2004
BETWEEN:
AUTOMOTIVE, FOOD, METALS, ENGINEERING PRINTING & KINDRED INDUSTRIES UNION
FIRST APPLICANTAUSTRALIAN WORKERS UNION
SECOND APPLICANTAND:
HENRY WALKER ELTIN CONTRACTING PTY LTD
RESPONDENT
JUDGE:
FRENCH J
DATE:
30 SEPTEMBER 2004
PLACE:
PERTH
REASONS FOR JUDGMENT
Introduction
The operator of the Yandi Iron Ore mine, Henry Walker Eltin Contracting Pty Ltd (HWE) and the unions covering its employees at the mine site have, since March 2004, been endeavouring to negotiate a new certified agreement. The negotiations broke down and industrial action ensued in July 2004. In response to that industrial action, HWE imposed a lockout on its employees on 1 August 2004. The two unions concerned, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and the Australian Workers’ Union (AWU) have brought action against HWE alleging that its lockout was in breach of the Workplace Relations Act 1996 (Cth) and in breach of the existing certified agreement. HWE says that the lockout was protected action under the Workplace Relations Act. The unions say that HWE did not comply with the notice requirements that are a condition of the legal immunity which it asserts. For the reasons which follow, I am satisfied that HWE did comply with those requirements and that the application should be dismissed.
Factual History – The Industrial Dispute
HWE operates the Yandi Iron Ore mine under contract for BHP Billiton Iron Ore Limited. The contract is for a fixed term and in July this year was due for renewal. The Yandi mine is about 185 kilometres north east of the town of Newman. It comprises three mining and two processing sites covering an area of land about 10 kilometres long. It operates as a fly-in/fly-out operation. The employees work on a two week on/one week off, or three week on/one week off, work cycle. HWE’s employees, of whom there are about 238, are accommodated at a camp which is called the ‘Yandi Village’. It is about 2 kilometres from the mine. At any given time there are usually about 178 HWE employees on site.
The mine site works on a two-shift, 24 hour system. The shifts run from 6am to 6pm and from 6pm to 6am respectively. Some employees work slightly different hours. Mobile plant maintenance workers usually work on shifts commencing at 5.30am and finishing at 5.45pm and commencing 5.30pm and finishing at 5.45am.
HWE is a party to a certified agreement under the Workplace Relations Act with the AMWU which is a registered organisation of employees for the purposes of the Act. The certified agreement is known as the ‘Yandi Operations Certified Agreement 2002’. The AWU is also a party. The agreement was certified pursuant to s 170LT of the Act on 2 May 2002. Its nominal expiry was on 30 June 2004.
From mid March 2004, HWE has been negotiating with the AMWU and other on-site unions for a new certified agreement. Not all employees will be covered by any collective certified agreement that is concluded as some 40 have been engaged under individual Australian Workplace Agreements (AWAs) in lieu of a collective industrial agreement. HWE has been represented in the negotiations by its Project Manager, Fergus Campbell, among others. The AMWU has been represented by William Tracey. He is employed by the AWU and works as an organiser with responsibility for the Pilbara region. He coordinates activity in the Pilbara on behalf of five unions, including the AMWU.
Agreement not having been reached by 2 July 2004, the AMWU gave notice to the Australian Industrial Relations Commission and HWE, of its initiation of a bargaining period under the provisions of s 170MI(2) of the Workplace Relations Act. The notice, dated 2 July 2004, expressed the AMWU’s intention to try:
‘(a)to make an agreement under Division 2 of Part VIB of the Act with Henry Walker Eltin Contracting Pty Ltd (ACN 009 625 138) of 55 Broadway Nedlands, Western Australia, 6009 (“Employer”);
and
(b)to have an agreement so reached certified under Division 4 of Part VIB of the Act.’
The parts of the HWE business to be covered by the agreement were described as ‘... the operations of Henry Walker Eltin Contracting Pty Ltd at the Yandi Minesite’. The employees to be covered by the agreement were those eligible to be members of the AMWU who were employed by HWE at the mine site. The proposed parties to the agreement were HWE, the AMWU, the AWU and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Workers Union (CEPU).
As appears from the affidavit of John Ferguson, the State Secretary of the AMWU, the union decided, on or about 8 July 2004, to take industrial action for the purposes of supporting or advancing claims made in respect of the proposed agreement. It gave notice on 8 July 2004, under the provisions of s 170MO of the Workplace Relations Act that it intended to engage in protected industrial action. The industrial action specified was as follows:
‘1.Rolling stop work meetings of up to two hours duration each day at 8am and/or 12 Noon and/or 8pm and/or 12 Midnight;
2. Bans on hot seat change overs;
3.Bans on the working of overtime after 11.5 hours have been worked by workers who are employed in the PIT only; and
4. Ban on Drug and Alcohol testing under the Drug and Alcohol Policy.’
The protected action was to begin at 1800 hours on Monday, 12 July 2004 and continue indefinitely. Before commencing its action the AMWU gave notice to the Registrar of the Australian Industrial Relations Commission that its members had been authorised to engage in industrial action within the bargaining period. The authorisation, it was said, had been given by the Western Australian State Secretary in accordance with the registered rules of the union.
A second notice of protected industrial action was given on 13 July 2004. The intended action included rolling stop work meetings, bans on overtime, bans on the use of bulldozers on stockpiles and surges, bans on the loading of trains and a ban on urine testing under the Drug and Alcohol Policy.
Between 12 July 2004 and 22 July 2004, HWE employees at the Yandi mine site took action within the scope of the protected industrial action set out in the AMWU notices. According to Mr Campbell, they also took action which did not fall within the industrial action set out in the notices. That action included bans on the training of new starters in trucks, running overtime on stop work meetings and ‘general disruption in the normal flow of work’.
A third notice under s 170MO of the Act was issued on 22 July 2004. The nature of the intended action was as follows:
‘In addition to the Protected Action notified on 13 July and 8 July 2004, a stoppage of work beginning at 6.00am on Monday 26 July 2004 and continuing for 48 hours.’
A further notice to like effect was issued on the same date. Another notice was given by the AMWU on 26 July 2004. It identified the intended action thus:
‘In addition to the protected action notified on 8 July, 13 July and 22 July of 2004, a stoppage of work commencing at 6.00am on Friday 30 July 2004 and continuing for 48 hours.’
In addition to industrial action carried out within the scope of the protected action notices, HWE employees set up pickets on access roads to the Yandi mine site on 25 July 2004. Mr Campbell gave evidence about the operation of the pickets, which was not disputed nor challenged in cross-examination. He saw one picket line in operation at about 10.30pm at the rail tunnel/road overpass which picket (designated Picket 1) limited access from the south to both the mine site and the Yandi Village. Two private vehicles were parked across the road blocking access. At 11pm he observed a second picket line blocking access by way of Anniversary Drive to the mine. The blockade again comprised cars parked across the road and people standing in a line across the road in front of the cars. Ahead of both pickets were signs saying ‘HWE Picket Line Ahead. Please slow down now. Thank you. A.M.W.U./A.W.U./C.E.P.U./C.F.M.E.U.’
None of the non-AWA employees attended for work at the mine on 26 July. The pickets were still operating. Mr Campbell tried to arrange transport for AWA workers to the mine driving them personally with other HWE employees and personnel of Global Security Alliance, which provides security services for HWE. He also endeavoured to collect AWA workers who had completed the night shift at the mine. Two groups were formed for this purpose. Mr Campbell’s group was prevented from gaining access to the mine by the picket on Anniversary Drive (designated Picket 2) and by another picket (designated Picket 3) on Flat Rocks Road. Each picket had a physical barricade across the road comprising 44 gallon drums, star pickets linked by wire and orange barricades. At Picket 2 Mr Campbell saw about 25 people standing around the barricade. He recognised HWE employees as well as a number of personnel not employed at Yandi. Brian Brennan, the manager employed by Global Security Alliance at the mine, approached the picket and asked the first person he approached to clear it so the group could make its way into the mine site. He was told, abusively, to go away. Other Global Security personnel joined him at the picket line. He indicated their intention to dismantle the picket and to go through. Mr Brennan and other Global Security personnel began breaking plastic meshing between the drums. Much abuse followed. Mr Brennan was threatened with personal violence.
The security men dismantled most of the barricading. Mr Campbell decided to pull back as some of the picketers were extremely agitated and were not willing to move from the road. His group then tried to access the mine via Flat Rocks Road but encountered Picket 3 at approximately 11am. According to Mr Campbell there were about 25 people standing around this barricade, some of whom were wearing AMWU/AWU t-shirts. Subsequently, with two of the security men travelling in a light vehicle, he and Mr Brennan entered the mine operations area by travelling through bush and around Picket 3. A few hours later the rest of the group, including the AWA workers, successfully entered the mine site the same way. At the operations area they prepared for work. On reflection, Mr Campbell decided that after the long stressful day it was wiser to return to camp without undertaking any work. They met up with the nightshift workers and the whole group then made its way out of the operations area. By that time police were in attendance and assisted their passage back through another picket which had been set up.
On 27 July 2004, non-AWA employees continued on strike. The mine was manned by AWA workers and labour hire staff. At about 9am on that day Mr Campbell, in company with Mr Brennan, saw another picket. It consisted of cars and people blocking a road. They did not approach closely, following a request from police received earlier that morning.
On 28 July 2004, the non-AWA workers returned to work at about 12 noon. There was evidence from Mr Campbell that on the morning of that day he received a report that speed cameras in the loading areas were not functioning and that somebody had deliberately sabotaged them. He was told that the current overload settings on one of the crushers had been altered which meant that it kept on tripping out at a very low current. He was also told that there had been interference with one of the conveyors so that it would not operate. The report was that this interference could only have been successfully achieved by an electrician. This evidence, which was hearsay in character, was evidence of information provided to Mr Campbell but not proof of the truth of its contents.
There were negotiations between HWE and the unions on 28 July as appears from the unchallenged affidavit evidence of Barry Criddle, HWE’s Operations Manager at Yandi. The first meeting on that day was held at midday. William Tracey, Kelvin McCann, Paul Justice and a number of other union members representing the union questioned HWE’s stance on AWAs and sought parity between the conditions of any certified agreement and the AWAs. Following an adjournment, Mr Tracey proposed a new offer for a certified agreement embodying various new conditions. The meeting was then further adjourned to be reconvened later that afternoon. It resumed at 4pm. Mr Criddle said the offer previously made by HWE was its final offer. He said that HWE’s dispute with the unions was not enhancing its prospects of seeking a contract extension from BHP Billiton.
The meeting was again adjourned for about half an hour. On its resumption Mr McCann said he wanted to hold a paid delegates’ meeting at 0800 the next day and a paid mass meeting at 1700. He said he would recommend that his members not strike on 30-31 July 2004 as they had intended.
A further meeting occurred on 29 July about 7.30pm. Mr McCann said the proposed strike would not go ahead. The union wanted discussions at a national level with an appropriately senior HWE representative. The union would be agitating its claims. He wanted the security people removed as their presence could inflame matters. Mr Criddle said that HWE would continue to operate regardless of the outcome of the meetings. Security staff would not be withdrawn. Global Security personnel would remain until Sunday, 1 August 2004. If the relationship was good on Friday, HWE would consider reducing their presence. Mr McCann asked whether HWE would be claiming against the unions in relation to the costs incurred by it in preparing for the strike action. Steve Heathcote, a lawyer from Clayton Utz who was present, said HWE had not given instructions to pursue any such costs. The meeting broke up ‘amicably’ according to Mr Criddle.
Notwithstanding the amicable conclusion of the meeting as described by Mr Criddle, it was Mr Campbell’s evidence, which I accept, that industrial action continued from 29 July 2004 until at least 2am on Saturday 31 July 2004. It included at least one two hour stop work meeting, bans on train loading, bans on bulldozers on stockpiles and bans on hot seating.
Factual History – the Lockout
On the afternoon of Saturday 31 July 2004, Mr Campbell decided that HWE would institute a lockout of employees the following day at the change of shift in the morning. Under his instruction and supervision, HWE staff prepared notices of the lockout to be served on each affected employee. Mr Campbell personally prepared a list of the employees to be served and checked that list with the relevant managers and supervisors to ensure that all affected employees were included on the list. He instructed Matt Dowd, Mike Grey, Kim Walker and Darren Thomas to serve the notices on the workers before 5.30am on the following day. His evidence in this respect was not challenged or disputed and I find that those preparatory steps were taken as he described. I find also, and it was not disputed, that notices were prepared for at least all of the HWE employees then working on the mine site who were not covered by AWAs.
Notices of the proposed lockout directed to the AMWU and the AWU were prepared and sent to the Subiaco office of Global Security by facsimile on Saturday afternoon at about 4.15pm. There they were received by Arden Wittensleger, who is one of the proprietors of Global Security. Mr Wittensleger made some attempts to contact the union officers by telephone. He could not contact the secretary of either organisation. He went to the AMWU and AWU offices at about 5pm but they were unattended. He could not locate any after hours telephone number for the unions. However the extent and reasonableness of his efforts is not in issue as the parties concede that the real question is whether or not the notification that was given complied with the requirements of the Act.
In the event Mr Wittensleger fixed a copy of the AMWU notice to the door of its offices in Royal Street, East Perth at about 5am on Sunday 1 August. He did the same at the AWU offices at about 5.10am. He then returned to the Global Security office and sent faxes to the offices of Mr Ferguson and Mr Daly, the secretary of the AWU, advising of what he had done. Copies of the notices were also faxed. At 5.23am, Mr Wittensleger called a mobile phone number for Mr Daly which he had been able to identify that morning. He left a message on his message bank informing Mr Daly of what he had done.
Back at the Yandi mine site, on instructions from Mr Campbell, Nerida Aitken of Clayton Utz Solicitors, sent copies of the AMWU and AWU lockout notices to the national offices of those organisations at 5.28am and 5.26am respectively.
Mr Campbell explained in his affidavit evidence that he had received reports of sabotage of equipment prior to the stop work and picketing on 25, 26 and 27 July 2004. He was concerned that if he were to give notice of the proposed lockout while the employees were still at work, some employees would sabotage equipment and possibly cause a serious accident. He was also concerned that if employees were served with notice while they were at work they could refuse to leave the mine site when the lock out started. For this reason he instructed that the lockout notices be served at the change of the shifts. He also took steps, prior to the lockout, to have Mr Brennan of Global Security arrange to monitor employee movements to and from the Yandi Village.
Mr Campbell assigned responsibility for service of the lockout notices on various groups of employees as follows:
1. Kim Walker – Mobile Maintenance/Workshop
2. Darren Thompson – Ore Handling and Processing
3. Mike Grey – Ore Handling and Processing Maintenance
4. Ray Varian and Matt Dowd – Mining Workers (plant operators)
It was the practice for HWE employees going to work in the morning shift to gather at a pickup point in the Yandi Village between the medical centre and the dry mess. There buses and other vehicles would deliver night shift employees at the end of their shift and pick up day shift employees for transport to the mine site where they would gather for pre-shift meetings with the relevant supervisors.
On the morning of Sunday, 1 August 2004, there was a large gathering of workers some of whom were returning from night shifts and others waiting to go to their day shifts. The company had placed a notice at the muster point stating that there would be a meeting at 5.30am.
According to Mr Campbell, he arrived at the muster point at about 5.18am and watched envelopes containing individual lockout notices being handed out to employees. He watched until about 5.25am when he left the muster point. The service of notices was still proceeding. He said in cross-examination that the mobile maintenance group was due to start work at 5.30am. The other work groups were due to start at 5.45am. He gave instructions that all employees should be served by 5.30am. There were approximately 90 notices to be served, according to Mr Campbell. There were 70 or 80 employees at the muster point. Others were served with notices in their rooms at the Village. I accept Mr Campbell’s evidence as to the intended time of service and to the effect that service of the notice began at some time after 5.18am and was still continuing when he left.
Mr Kim Walker had responsibility for serving notices on the Mobile Maintenance Workers. He arrived at the Village at 5.20am with other HWE officers, Nigel Palmer, Mike Grey, Darren Thompson and Ray Varian. Matthew Dowd had assigned responsibility for serving different groups of employees. Mr Walker began serving his Mobile Maintenance Workers between 5.25am and 5.30am. He said in his evidence-in-chief that he served all the workers in his group and then served two electricians from Mike Grey’s group at about 5.40am. He said he had about 17 notices to serve. He said in cross-examination that although he believed no notices were served after 5.40am, it was possible that some might have been. He did not take particular notice of what else was going on around him.
Mr Dowd is the Quarry Manager with HWE. He also attended at the muster point at 5.20am. He commenced serving notices in his group shortly after 5.22am. He said he finished effecting service by 5.30am. As appeared from his cross-examination he was estimating the time at which service was effected. He had to serve about 52 or 53 (there being another 7 or 8 of his group not present). Mr Thompson had to serve about 30 and Mr Walker and Mr Gray between 15 and 20 each. His estimate of the numbers total about 130 as against Mr Campbell’s evidence that there were about 90 people to be served. In this respect, I prefer the evidence of Mr Campbell as he was responsible for the preparation and checking of the list of employees to be served.
Mr Dowd gave some notices to Mr Brennan to be delivered to night shift workers who had gone to their rooms.
Evidence of later times for completion of the service of the notices at the muster point was given by William Tracey and two HWE employees, Brett Hull and Dennis Anning. Mr Tracey said he was woken at 5.20am by Dennis Anning who told him that something was going on at the muster point. He got dressed, went to the toilet and then went to the muster point. He said he saw Mr Walker and other HWE officers at the carpark at about 5.30am. Mr Walker and Mr Ray Varian began to call out the names of the workers at about 5.40am. Mr Tracey said he had looked at his watch when woken. He then corrected himself in cross-examination and said it was the clock on his mobile phone that he looked at. Representatives of HWE did not see him at the muster point but, having regard to their numbers and the focus and service of the notices, I am not satisfied that that evidence is necessarily inconsistent with his. I accept on the balance of probability that Mr Tracey was present and saw what he said he saw. I do not accept his evidence that Mr Walker did not start serving notices until 5.40am. Mr Walker and the others from HWE had instructions from Mr Campbell which required them to begin before 5.30am. I have no reason to believe, having regard to Mr Walker’s evidence, that he or the other HWE officers present did not commence serving notices prior to 5.30am
Mr Hull arrived at 5.15am ready to start work. As a day shift worker he was paid from 5.30am. He claimed that the service of the notices by Mr Walker did not start until about 5.40am. He was estimating the times as he did not have a watch.
Mr Anning said that he did not receive his envelope until about 5.55am. He agreed in cross-examination that he saw Mr Varian arrive at about 5.35am. He looked at his watch at that time. He said it took 20 minutes to receive his envelope. He was one of the last people to receive it. This was an estimate, as was the time of 5.55am. He denied, however, that he had received his notice at 5.30am. I am inclined to doubt his estimate of the time at which he received a notice having regard to the time at which service of the notices commenced.
In my opinion, any assessment of the time taken to serve the lock out notices on the individual employees of HWE would have to have regard to the fact that there were about 90 people to be served, that they were to be grouped and then identified by names called out loud and handed an envelope. I do not consider it likely that the process was completed by 5.30am. Even on Mr Walker’s evidence he served two employees at around 5.40am. In my opinion it is probable that the service of the lockout notices took until between about 5.40am and 5.45am. No case is made that any particular employee was not served at all.
Factual History – The Lockout Notices
The text of the individual lockout notices was as follows:
‘Notice of Intention to Lock Out
We have notified the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“AFMEU”) and the Australian Workers’ Union (“AWU”) of our intention to take lock out action pursuant to section 170MO(3) of the Workplace Relations Act 1986. The lock out action applies to you.
The lock out will commence at 0530 hours on Sunday 1 August 2004 and continue until 0600 hours on Monday 2 August 2004.
You will not be paid any remuneration for the duration of the lockout.
During the period you are locked out, you are directed not to work, or to resume work, or to enter onto the areas contained within the Mining Lease 270SA and the Miscellaneous Lease 47/292 as well as the roads and their surrounds that connect Miscellaneous Lease 47/292 to the Barimunya Aerodrome and to the Yandi Accommodation Facilities (“the Work Site”) as highlighted on the attached map (shaded areas only).
The highlighted areas include but are not limited to the following: the mining and processing operations, open pit mines, haul roads, stockpile areas, processing and train loading facilities, material handling facilities, workshops and maintenance facilities, administration facilities, railing infrastructure, the Barimunya Aerodrome, access road and other associated roads.
If you do enter the Work Site during the lockout period, Henry Walker Eltin will consider that entry to be a trespass and disciplinary and/or legal action may be taken against you.’
The Application
The application is said to be brought pursuant to ss 170NC, 170MU, 170NF, 170NH, 178 and 412(1) of the Workplace Relations Act and for injunctive relief pursuant to ss 170NG of the Act and s 23 of the Federal Court of Australia Act 1976 (Cth).
In substance the applicants allege the following contraventions of the Act:
1.Contravention of s 170MU(1) by engaging in unprotected industrial action in the form of a lock out of employees engaged by HWE at the Yandi mine site and failing to pay the employees remuneration for the duration of the lockout.
2.That HWE has failed to comply with the terms and conditions of the Yandi Operations Certified Agreement 2002.
3.Contravention of s 170NC(1) by engaging in unprotected industrial action in the form of the lockout of employees engaged by HWE at the Yandi mine site and failing to pay employees remuneration for the duration of the lockout and threatening further industrial action with intent to coerce employees in respect of the making of an agreement under Div 2 of the Act.
In each case declaratory relief is sought together with associated injunctive relief and an order for the payment of penalties. An order is also sought that HWE pay compensation to its employees in respect of the effects upon the employees of the contravention of s 178 of the Act.
Statutory Framework
Part VI of the former Industrial Relations Act 1988 (Cth) made provision for dispute prevention and settlement as does Pt VI of the Workplace Relations Act. The Industrial Relations Reform Act 1993 (Cth) introduced into the Industrial Relations Act new provisions including Pt VIB entitled ‘Promoting Bargaining and Facilitated Agreements’. It provided, inter alia, for the making of certified agreements (Div 2) and enterprise flexibility agreements (Div 3). It conferred on the Australian Industrial Relations Commission a function of facilitating agreements so made (Div 5). The Industrial Relations Act was further substantially amended by the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) and renamed the Workplace Relations Act.
The objects of Pt VIB of the Workplace Relations Act are set out in s 170L which says:
‘The object of this Part is to facilitate the making, and certifying by the Commission, of certain agreements, particularly at the level of a single business or part of a single business.’
Division 8, which deals with the negotiations for certified agreements provides for initiation by an employer or union of a bargaining period for negotiating the proposed agreement. The bargaining period commences upon the initiating party giving written notice to each other negotiating party. The bargaining period begins at the end of seven days after the day in which the last notice was given.
Under certain circumstances, and subject to qualifications which are not material for present purposes, industrial action undertaken during a bargaining period may be protected action and as such immune from legal action (s 170MT(2)). Section 170ML identifies protected action to which the immunities apply (s 170ML(1)). A union that is a negotiating party or a member of the union or its officers or employees are entitled, in order to support or advance claims made in respect of a proposed agreement or by way of response to a lockout, to organise or engage in industrial action directly against the employer and the organising of or engaging in that industrial action is protected action (s 170ML(2)).
Protected action by the employer during the bargaining period is covered by s 170ML(3) and succeeding provisions in the following terms:
‘(3) Subject to subsection (6), during the bargaining period, the employer is entitled, for the purpose of:
(a)supporting or advancing claims made by the employer in respect of the proposed agreement; or
(b)responding to industrial action by any of the employees whose employment will be subject to the agreement;
to lock out from their employment all or any of the employees whose employment will be subject to the agreement and, if the employer does so, the lockout is protected action.
(4) The reference in subsection (3) to the employer locking out employees from their employment is a reference to the employer preventing employees from performing work under their contracts of employment without terminating those contracts.
(5) If the employer locks out employees from their employment in accordance with subsection (3), the employer is entitled to refuse to pay any remuneration to the employees in respect of the period of the lockout.
(6) The employer is not entitled to lock out employees from their employment under subsection (3) unless the continuity of the employees’ employment for such purposes as are prescribed by the regulations is not affected by the lockout.’
Section 170MO provides for notice requirements in respect of protected action. In relation to lockouts, s 170MO(3) provides:
‘(3) If one or more of the negotiating parties is an organisation of employees, any action taken as mentioned in subsection 170ML(3) by the employer to lock out employees from their employment:
(a)is not protected action unless the employer has given the other negotiating party or each of the other negotiating parties:
(i)if the lockout is in response to, and takes place after the start of, industrial action organised or engaged in by an organisation that is a negotiating party in respect of the proposed agreement – written notice of the intended lockout; or
(ii)in any other case – at least 3 working days’ written notice of the intended lockout; and
(b)is not protected action in so far as it relates to a particular employee unless:
(i)if subparagraph (a)(i) applies – before the lockout begins; or
(ii)in any other case – at least 3 working days before the lockout begins;
the employer has given written notice to the particular employee, or has taken other reasonable steps to notify the particular employee, of the intended lockout.
...
(5) A written notice or other notification under this section must state the nature of the intended action and the day when it will begin.
(6) A written notice or other notification under this section may be given before the start of the bargaining period.’
Section 170MU(1) prohibits employers from dismissing employees or otherwise acting to their prejudice for engaging in protected action:
‘(1) An employer must not:
(a)dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee’s prejudice; or
(b)threaten to dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee’s prejudice;
wholly or partly because the employee is proposing to engage, is engaging, or has engaged in protected action.’
The notice requirements are to be read by reference to s 28A of the Acts Interpretation Act 1901 (Cth) which provides:
‘(1) For the purposes of any Act that requires or permits a document to be served on a person, whether the expression “serve”, “give” or “send” or any other expression is used, then, unless the contrary intention appears, the document may be served:
(a) on a natural person:
(i) by delivering it to the person personally; or
(ii)by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document; or
(b)on a body corporate – by leaving it at, or sending it by pre-paid post to, the head office, a registered office or a principal office of the body corporate.
(2)Nothing in subsection (1):
(a)affects the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorizes the service of a document otherwise than as provided in that subsection; or
(b)affects the power of a court to authorize service of a document otherwise than as provided in that subsection.’
Whether HWE Locked its Employees Out
The first question that arises in the context of the AMWU and AWU application is whether HWE locked out all or any of the employees from their employment within the meaning of s 170ML(3). That question requires consideration of s 170ML(4) which explains the concept of ‘locking out employees from their employment’ as a ‘reference to the employer preventing employees from performing work under their contracts of employment without terminating those contracts’. However the ‘contracts of employment’ of HWE’s employees are described, whether by reference to the existing certified agreement alone or that agreement read with the individual agreements to engage each employee, the action taken by HWE on the morning of Sunday, 1 August 2004, constituted a lockout. The employees were prevented from performing work under their contracts but those contracts were not terminated.
Whether the Lockout was for an Authorised Purpose
The lockout occurred during a bargaining period within the meaning of s 170ML(3). The purposes for which an employer is entitled to conduct a lockout during that period are specified in s 170ML(3)(a) and (b). They are:
‘(a)supporting or advancing claims made by the employee in respect of the proposed agreement; or
(b)responding to industrial action by any of the employees whose employment will be subject to the agreement.’
The purpose of the lockout did not emerge with great clarity from the evidence. However Mr Campbell said in his affidavit that industrial action by HWE’s employees continued from 29 July 2004 ‘until at least 2am on Saturday 31 July 2004’. That action included a stop work meeting, bans on train loading, bans on the use of bulldozers on stockpiles and bans on hot seating. This was not challenged in cross-examination and, as I have already found, that ongoing industrial action did occur. Mr Campbell said in the following paragraph of his affidavit that ‘as a result of the above matters, on Sunday 1 August 2004, HWE served lock out notices on the AMWU, AWU, and (with the exception of Patrick Brady and those HWE employees employed on Australian Workplace Agreements), all employees on site at the time who are members or eligible to be members of the AWU and the AMWU’.
I infer that a purpose of the lockout was to respond to the ongoing industrial action being conducted by the employees. In so doing, HWE could be said to have been supporting or advancing its own proposals as it had advised that they represented a final position. In any event, in my opinion, the purpose of the lockout was either the purpose of responding to industrial action or both that purpose and the purpose of advancing HWE’s proposals. The purpose of the lockout was therefore within the purposes for which protected lockout action could be taken under s 170ML(3).
Whether the Requisite Notice of the Lockout was Given to the Unions
Section 170MO(3) establishes a notice requirement which has to be complied with if a lockout is to be protected action. There are two elements of the notice requirement which arise where a union is a negotiating party. The first element requires written notice to be given to the union. The second element requires written notice or ‘... other reasonable steps to notify the particular employee, of the intended lockout’. Absent compliance with the latter condition in respect of a particular employee the lockout is not protected action with respect to that employee.
The section prescribes a minimum of three days’ written notice to be given to the union, but the minimum period does not apply if the lockout is in response to, and takes place after the start of, industrial action organised or engaged in by the relevant union (s 170MO(3)(a)). This recognises that the exigencies of ongoing industrial disputation may justify a rapid response by way of lockout action at short notice.
The first question on this aspect of the case is whether the unions were given ‘written notice of the intended lockout’. There is no prescription in the Workplace Relations Act of the way in which notice is to be given to a union under s 170MO(3)(a) other than that it is to be written notice and, by necessary inference, must precede the lockout. There is no provision expressing or implying a legislative intention contrary to the application of the notice provisions of s 28A of the Acts Interpretation Act – Australasian Meat Industry Employees’ Union v O’Connor (1999) 96 IR 266 (at [15] Marshall J). This may be said to yield outcomes inconsistent with the policy of the Act where the written notice does not come to the attention of the relevant union, albeit the notice requirement has been satisfied. The Explanatory Memorandum for the Workplace Relations and Other Legislation Amendment Bill 1996 is of little assistance in this respect. It says, of s 170MO (at 9.176):
‘Under this section, at least 3 working days’ notice must be given of proposed protected action, unless the action (ie, industrial action or a lockout) is taken in response to action by the other negotiating party. The notice must normally be in writing and given to the person concerned, but in the case of a lockout, other reasonable steps may suffice (eg, where all of the employees in a business are to be locked out, notices in newspapers or announcements on the radio or bulletins on noticeboards in the business may be appropriate steps).’
The requirement as to content of notices of intended protected action which is imposed by s 170MO(5) was discussed (albeit obiter) by the Full Court in Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463. Wilcox and Cooper JJ said (at [87]):
‘We think s 170MO(5) was designed to ensure that industrial disputants who are to become affected by protected action, in relation to which their usual legal rights are significantly diminished, are at least able to take appropriate defensive action. For example, an employer may operate a sophisticated item of equipment that will be damaged if precipitately shutdown. If warned in advance of a ban that might affect the continued operation of that plant, the employer might choose a controlled shutdown during the period of the notice. More commonly, perhaps, an employer might use the notice time to communicate with suppliers and customers, and thereby reduce the consequences for them of the notified industrial action. Very often, the recipient of the notice will respond in a way that has a legal dimension. For example, a union might react to a notice by an employer of intent to lock out some employees by giving notice that all employees will strike indefinitely as from the commencement of the lockout. Similarly, an employer might respond to an employees’ notice of bans by giving notice of a lockout of some or all employees.’
Those observations were made in the context of a case in which three days’ notice was required. Their Honours specifically left aside the case in which a union takes action in response to an employer’s lockout (see s 170MO(2)(a)). The imposition of a three day minimum requirement for notice in cases not involving action in response to a lockout or in response to industrial action by a union support the kind of policy objective which allows time for the reflection and damage control contemplated by their Honours. The factual situation, as in this case, or the case in which a union is responding to a lockout, is likely to be far more dynamic than the cases in which three days’ notice is required. In my opinion that is recognised by the absence of any requirement for a minimum period of notice. Indeed counsel for the AMWU conceded, in relation to individual employees, that notice to them of the lockout could comply with the requirements of s 170MO(3)(b)(i) if given ‘... even one second before the lockout begins’.
The giving of notice in the context of a response to a lockout or to industrial action is a minimum requirement which in some circumstances may be done in sufficient time to enable time for consideration and mitigation of harm. However, it does not impose any such requirement. Counsel for HWE suggested that the policy of the notice requirement, absent a minimum period of notice, is to ‘regularise’ the intended protected action. He was pressed with the apparent meaninglessness of that concept. It may be said, however, in fairness to him, that a procedural formality placed at the threshold of a responsive lockout or industrial action, ensures that some level of consideration of the proposed cause of action will be given by those intending to take it. And of course s 170MO(5) will require that they define the parameters of the proposed action. It follows that the notice has work to do even if it does not come to the attention of the union prior to the commencement of the lockout. By the notice requirement the Act imposes upon the dynamics of the bargaining period industrial disputation and action, rules of engagement that the parties are required to define and state to each other.
The absence of a minimum period of notice may lead to a party formally receiving notice but not being aware of it prior to the intended action. That is not a difficulty to be cured by judicial legislation. As Finn J said in Australasian Meat Industry Employees’ Union v Peerless Holdings Pty Ltd (2000) 103 FCR 577 (at [42]):
‘While the Act speaks of advancing its object by providing a framework of rights and responsibilities for employers and employees which supports fair and effective agreement-making: s 3(e); the fact that an element in that framework is of its nature capable of working unfairness in given circumstances provides no basis for judicially legislating to preclude that possibility – the more so when so doing might itself impede effective agreement-making in other circumstances where no issue of possible unfairness exists.’
His Honour acknowledged that the steps which the applicants wanted him to take in that case, namely to imply into the Act a precondition preventing the giving of notice of intended AWA industrial action, might or might not as a matter of public policy be a desirable one. He said (at [43]):
‘That is for the legislature to decide. It is not for this Court so to do under the guise of statutory construction.’
In my opinion, notice of a lockout in response to industrial action is given to a union for the purposes of s 170MO(3)(a)(i) if the notice is left at, or sent by pre-paid post, to the head office, a registered office or a principal office of the union. The same applies, by parity of reasoning, to the like requirement imposed on unions responding to lockout action - s 170MO(2)(a). In this case, the requisite notices were left at the unions’ State offices on the morning of Sunday, 1 August 2004 at least half an hour before the commencement of the lockout. Notices were also sent by facsimile immediately prior to the lockout to the national offices of the unions.
In my opinion, the notice requirement was met in so far as the unions were concerned. Even if the Act is to be construed as implying a requirement that efforts be made to give notice a reasonable time prior to the lockout it cannot be said in this case that Mr Wittensleger could have done anything more than he did apart, perhaps, from ringing every J Ferguson and T Daly in the White Pages to see if he could contact the State Secretaries of the unions. There is no evidence that it would have made any difference to the unions’ awareness of the commencement of the lockout if he had affixed the notices to the doors of their State offices the night before, on 31 July 2004.
In my opinion, HWE did comply with the notice requirement of s 170MO(3)(a)(i) in giving written notice of its intended action to the unions.
Whether HWE Complied with the Requirement to Give Notice of the Intended Lockout to Individual Employees
The critical question here is when the lockout began. The notices stated that the lockout would commence at 0530 hours on Sunday 1 August 2004. For the purposes of the Act, however, a lockout commences with the employer ‘preventing employees from performing work under their contracts of employment ...’ (s 170ML(4)). Mr Campbell gave evidence-in-chief that the employees are paid from the commencement of the pre-shift meetings which occur at their work sites after they have been transported to those work sites from the Yandi Village by buses or vehicles. He said that nobody is paid to travel to this pre-shift area. That evidence was not challenged in cross-examination, and I accept it.
The certified agreement does not define the precise times at which shifts begin and end. It defines ‘Day Shift’ as a reference to ‘any employee starting at or after 5am and finishing at or before 7pm’ and ‘Night Shift’ as ‘any employee starting at or after 5pm and finishing at or before 8am on the following day’. There is no more precise contractual definition of start and finishing times for shifts and no doubt these could be adjusted by the company according to circumstances within the framework of the periods referred to in the definitions.
In my opinion, as a matter of substance therefore, the notices of the lockout given to HWE’s morning shift employees at the muster point at Yandi Village were given prior to the commencement of the lockout even if some of them were not physically handed to the employees until 5.40am or 5.45am. In a practical sense the notice to each particular employee signalled the commencement of the lockout in respect of that employee. The company had posted a notice at the muster point calling a meeting. That meeting was for the purpose of handing out the notices. It preceded any possibility of movement to the work site and logically preceded the commencement of the lockout. So far as employees on the morning shift were concerned and, a fortiori, so far as employees on the night shift were concerned, I am satisfied that notice was given.
I accept that in so doing HWE gave the notices, in effect, immediately prior to the commencement of the lockout in respect of each employee. On counsel’s concession and, in my opinion, upon the correct construction of the notice provisions of the Act, it could do so up to an instant before the lockout actually commenced. The rationale for HWE’s action in this regard is explained by reference, inter alia, to Mr Campbell’s concerns about the possibility of property damage and the difficulty of removing people from site who refused to go.
I am satisfied that HWE complied with the requirements of s 170MO(3)(b)(i).
Conclusion
The lockout was protected action. By virtue of s 170MT(2) no action lies under any law (whether written or unwritten) in force in a State or Territory in respect of the lockout. That is subject to certain exceptions, none of which is material here. The application will therefore be dismissed.
I certify that the preceding sixty six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate:
Dated: 30 September 2004
Counsel for the First Applicant: Mr LA Edmonds Solicitor for the First Applicant: Mr LA Edmonds Counsel for the Second Applicant:
Solicitor for the Second Applicant:
Ms J Kenny
Dwyer Durack
Counsel for the Respondent: Mr MH Zilko SC and Mr AJ Power Solicitor for the Respondent: Clayton Utz Date of Hearing: 20 August 2004 Date of Judgment: 30 September 2004
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