Berkeley Challenge Pty Ltd T/A Spotless v United Voice
[2011] FWA 6421
•20 SEPTEMBER 2011
[2011] FWA 6421 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.418—Industrial action
Berkeley Challenge Pty Ltd T/A Spotless
v
United Voice
(C2011/5852)
COMMISSIONER BISSETT | MELBOURNE, 20 SEPTEMBER 2011 |
Alleged industrial action at Tullamarine and Avalon airports.
[1] This is an application by Berkley Challenge Pty Ltd (BCPL) pursuant to s.418 of the Fair Work Act 2009 (the Act) for an order that industrial action stop, not occur or not be organised.
[2] BCPL is part of the Spotless Group, which has a commercial contract with Qantas Australia Pty Ltd (Qantas) to provide cleaning services at Tullamarine and Avalon Airports in Victoria. BCPL employ approximately 129 cleaners to carry out this work.
[3] In June 2011 I issued a majority support determination 1 for employees of BCPL on application by United Voice, a bargaining representative of employees. Since that time BCPL and United Voice have had a series of meetings in an effort to negotiate an enterprise agreement.
[4] On 12 August 2011 I issued a protected action ballot order with respect to those employees of BCPL who are members of United Voice and who would be covered by the proposed enterprise agreement. 2 A ballot was subsequently conducted and industrial action authorised in accordance with the Act.
[5] On 5 September 2011 United Voice notified BCPL of its intention to take protected industrial action commencing on Friday 9 September 2011 (the first notice). 3 On 6 September 2011 United Voice notified BCPL of its intention to take protected industrial action on Saturday 10, Sunday 11 and Monday 12 September 2011 (the second notice).4 The action notified in each of these notices was taken.
[6] On 12 September 2011 United Voice notified BCPL of its intention to take protected industrial action on Friday 16 September 2011(the third notice). The notice stated that:
The employees concerned with this industrial action are those of [BCPL’s] employees who are members of United Voice and whose employment would be subject to the proposed collective agreement to cover cleaners working at Tullamarine and Avalon airports.
The industrial action will occur between the hours of 00:01 Friday 16 September 2011 and 23:59 Friday 16 September 2011 and will consist of:
● A stoppage of work of 60 minutes duration to occur between the hours of 00:01 Friday 16 September 2011and 06:00 Friday 16 September 2011;
● A stoppage of work of 60 minutes duration to occur between the hours of 06:00 Friday 16 September 2011and 14:00 Friday 16 September 2011;
● A stoppage of work of 60 minutes duration to occur between the hours of 14:00 Friday 16 September 2011and 22:00 Friday 16 September 2011. 5
[7] On 13 September 2011 United Voice notified BCPL of its intention to take protected industrial action on Saturday 17, Sunday 18 and Monday 19 September 2011 (the fourth notice). That notice stated that:
The employees concerned with this industrial action are those of [BCPL’s] employees who are members of United Voice and whose employment would be subject to the proposed collective agreement to cover cleaners working at Tullamarine and Avalon Airports.
The industrial action will occur between the hours of 00:01 Saturday 17 September 2011 and 23:59 Monday 19 September 2011 and will consist of:
● Six stoppages of work of 30 minutes duration which may be consecutive, to occur between the hours of 00:01 Saturday 17 September 2011 and 23:59 Saturday 17 September;
● Six stoppages of work of 30 minutes duration which may be consecutive, to occur between the hours of 00:01 Sunday 18 September 2011 and 23:59 Sunday 18 September;
● Six stoppages of work of 30 minutes duration which may be consecutive, to occur between the hours of 00:01 Monday 19 September 2011 and 23:59 Monday 19 September. 6
[8] On 14 September 2011 BCPL made an application to Fair Work Australia under s.418 of the Act on the basis that industrial action is happening or threatened, impending or probable or being organised and that the industrial action is not, or would not be, protected industrial action.
[9] BCPL submits that for industrial action to be protected it must meet the requirements set out in s.414 of the Act (notice requirements). 7 Section 414(6) of the Act provides that:
A notice given under this section must specify the nature of the action and the day on which it will start.
[10] BCPL submits that the third and fourth notices of industrial action do not specify the nature of the action to be taken in that they do not specify the time of the action nor do they properly advise who will be taking the action.
[11] In effect BCPL says that the notices lack the required specificity and for this reason do not meet the requirements of s.414 of the Act. On this basis, and in accordance with s.413, the action specified in both the third and fourth notices, it submits, will not be protected.
[12] The application was heard on Thursday 15 September 2011 at 5.00pm. Given that industrial action was due to commence at 00:01 on Friday 16 September under the third notice, I issued a decision ex tempore. This waswith respect to the application to the extent it dealt with the notice of 12 September 2011. In that decision I declined to grant the order that industrial action stop as sought by BCPL. I also indicated that I would issue a decision with respect to the industrial action due to commence at 00:01 on Saturday 17 September 2011 by close of business Friday 16 September 2011 with reasons to follow soon thereafter.
[13] On 16 September I issued a decision 8 with respect to the fourth notice dated 13 September 2011, which deals with the proposed industrial action for 17-19 September 2011. I again declined to grant the orders sought by BCPL.
[14] Following are my reasons for each of those decisions. Unless it is otherwise stated the reasons below refer to both the third notice dated 12 September 2011 and the fourth notice dated 13 September 2011.
Evidence
[15] Evidence in the proceedings was given by Mr Con Baltatzis for BCPL. Mr Baltatzis is the State Operations Manager - Victoria Cleaning Services of BCPL. His evidence is:
● The first notice from United Voice indicated that there would be a number of stoppages of 30 minutes duration with the commencement and finish times of each of these stoppages identified. Following receipt of this notice he discussed alternate work arrangements with his management team where it was agreed that during each 30 minute stoppage they would roster extra staff so that the work performed at each location would not be disrupted. The extra staff were provided with uniforms, induction and necessary security accreditation. 9
● The second notice from United Voice indicated that there would be a number of stoppages of 60 minutes duration. The commencement and finish times of each of these stoppages was identified. The alternative work arrangements put in place in response to the first notice were again implemented by Mr Baltatzis. 10
● The extra staff used during the stoppages in the first and second notice were sourced from Inci Corp and other parts of the Spotless Group.
● On receipt of the third and fourth notices, and because it was not known pursuant to those notices exactly what time the action would commence and whether it would be taken by all members of United Voice at the same time, it was decided that the only defensive alternative to provide the same level of coverage as during the action arising from the first and second notices would be to put in place an arrangement whereby each employee rostered to work during the hours identified in the third and fourth notices would be replaced by another employee. In effect this would result in a ‘shadow workforce’ being rostered for a period of time greater than the actual stoppage (60 minutes on 16 September or six stoppages of 30 minutes on 17, 18 and 19 September), as it would not be possible to know when any individual member of United Voice would stop work. 11
● On 14 September 2011 BCPL’s lawyers wrote to United Voice seeking that United Voice rectify the deficiencies in the third and fourth notices by providing notification of the start and finish time of each stoppage to be taken on 16 and 17 September 2011 and confirmation that the action would be taken at the same time by all members and not different times. 12 United Voice declined to provide such information maintaining that the notices were not defective.13
● Some (alleged) unauthorised industrial action was taken on 9 September 2011. Employees involved were subsequently docked four hours pay.
Submissions
[16] Mr Trindade for BCPL submits that the third and fourth notices do not specify the precise nature of the action to be taken such that BCPL can put in place appropriate defensive action. In particular the notices do not specify who, of the 89 members of United Voice, will be taking the industrial action or precisely when the action will actually be taken. Further, the notices do not make it clear if all United Voice members will take action at the same time or different times.
[17] Mr Trindade referred me to the decision in Davids Distribution Pty Ltd v National Union of Workers 14 (Davids Distribution) in support of his submission of the purpose of the notice. This decision was made under the then s.170MO(5) Workplace Relations Act 1996, which is in identical terms to s.414(6) of the Act. In that matter Wilcox and Cooper JJ found:
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 shut down. If warned in advance of a ban that might affect the continued operation of that plant, the employer might choose a controlled shut down 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. 15
[18] The lack of specificity in the notices as to which employees will take action makes it difficult for BCPL to know in advance how many substitute workers (the shadow workforce) it will require at any particular time.
[19] Mr Trindade also submitted that the failure to specify the commencement time of each period of industrial action in the third and fourth notices and the description in the fourth notice of the capacity for the stoppages to be ‘consecutive’ means that the nature of the action to be taken is not adequately specified. In support of this proposition he referred to the decision in PWB Anchor Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union 16 (PWB Anchor) where it was found, in an application for an interlocutory injunction, that there was a ‘serious question to be tried as to whether the description of the rolling stoppages in the AWU notice is an adequate description for the purposes of s.170MO(5).’17
[20] In CSBP Ltd v Liquor, Hospitality and Miscellaneous Union 18(CSBP), again an application for an interlocutory injunction, Gilmour J found that:
Additionally the Protected Action Notice is arguably defective in failing to identify the start and finish times of the industrial action with greater precision, in the context of the particular circumstances which govern the operation of the Plant by the applicant. In my opinion the expression “the nature of the intended action” is wide enough, arguably, in an appropriate case, and arguably this case is one, as to when on the specified day in the notice the intended action is to commence as well as the time on the last day when the intended action is to cease. If it were otherwise, in the circumstances of this case, the applicant would be required to take defensive steps for the period commencing immediately after midnight on the day before the intended action and in respect of the period up until midnight on the last day of the intended action. It may be however, as a matter of fact, that such was not the intention of the respondent. It may have intended to commence the intended action at some time during the first day, perhaps the commencement of one of the shifts either 6am or 6pm and likewise in relation to cessation of the intended action on the last day. In those circumstances the applicant, particularly in relation to the serious safety issues which would otherwise arise, might well “over-compensate” because of the lack of specificity as to these matters in the notice. It would not be onerous for the respondent to have provided this information and it would relevantly have informed the applicant upon a very significant matter, namely what defensive steps were reasonably necessary without over-compensation, to meet the proposed industrial action. 19
[21] In Telstra Corporation Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 20 (Telstra) a Full Bench of Fair Work Australia found that:
there is little doubt that the purpose of the notice requirement is to give the employer the opportunity to respond to the action by making relevant preparations. The response may involve making arrangements to deal with unavailability of labour, including making appropriate arrangements in relation to customers, suppliers and other contractors. Whether the notice is adequate may depend on the nature of the employer’s operations including their size, the number of employees, the number of locations, the time at which the action is to occur and the employees potentially taking the industrial action. 21
[22] The Full Bench also observed that:
whether a particular notice meets the requirements in s.414(6) will depend upon the terms of the notice and the industrial context. Every case is different and each notice must be looked at having regard to all of the relevant considerations. 22
[23] It was submitted for BCPL that the circumstances of this case and the industrial context favour a finding that the notices are deficient.
[24] Mr Trindade also submits that the lack of specificity in the third and fourth notices limits the ability of BCPL to exercise its rights to take employer response action (s.411 of the Act) as it may be at risk of locking out employees who have not participated in industrial action and are prepared to work. To avoid this BCPL would need to constantly monitor employees across each of the periods of industrial action specified in the third and fourth notices, which is not feasible.
[25] Mr Dowling for United Voice submits that in all of the circumstances and in the industrial context the third and fourth notices properly comply with the requirements of s.414(6) of the Act.
[26] Mr Dowling also took me to the decision in Davids Distribution where Wilcox and Cooper JJ stated that:
Parliament did not indicate what degree of specificity it intended by the term “nature of the intended action”. To interpret this term, on the one extreme, as requiring no more than an indication of industrial action, as argued by NUW, would be significantly to devalue s 170MO(5); the notice would provide little information. To interpret it, on the other extreme, as requiring precise details of every future act or omission would be to impose on the giver of a notice an obligation almost impossible to fulfil. Industrial disputes are dynamic affairs. Decisions as to future steps often need to be made at short notice, sometimes in response to actions of the opposing party or other people, including governments, and changing circumstances. It would be a major, and unrealistic, constraint on industrial action to require a party to specify, three clear working days in advance, exactly what steps it would take. An unduly demanding interpretation of s 170MO(5) would seriously compromise the scheme of Div 8 of Pt VIB of the Act; it would be difficult for a party to an industrial dispute to obtain the protection contemplated by the Division. 23
[27] Further, Wilcox and Cooper JJ stated:
It will be apparent we think it necessary, and sufficient, for parties to describe the intended action in ordinary industrial English; for example, “an indefinite strike of all employees”, “a lockout of all employees employed in the AB fabrication plant”, “a ban on overtime”, “a ban of the use of MN equipment”, “rolling stoppages throughout the mine”, “a ban on the servicing of delivery vehicles”. 24
[28] On this basis Mr Dowling submits that the Court found that a notice of ‘rolling stoppages through the mine’ is sufficient and no obligation was imposed to identify the start and finish times of such stoppages. A rolling strike, he submits, is defined as industrial action in which groups of employees go on strike consecutively, as is notified as possible under the fourth notice given by United Voice.
[29] Mr Dowling agrees that Davids Distribution stands for the proposition that the notice given of industrial action should allow an employer to take defensive action. He submits, however, that the evidence of BCPL in this matter is that they do have a contingency plan in place. It can source a ‘shadow workforce’ as it has already done. This workforce is trained, has uniforms and has already been provided with the appropriate security passes.
[30] In Alcoa of Australia Ltd v The Australian Workers’ Union 25 (Alcoa) Barker J stated:
one would have thought, taking the text of s 414(6) at face value, that because the Parliament has chosen to impose some notice requirements of industrial action when, prior to the Workplace Relations Act 1996, there were none, a court should be slow, in effect, to travel beyond the plain words of the provision. The requirement to specify the “nature of the action” and then separately “the day it will start”, do not, of themselves, suggest to me that it is also necessary to particularise the commencement and finishing time of the proposed action in a notice. For the Court to supply this degree of particularisation might be seen to supplant the role of the legislature in prescribing industrial behaviour, a matter of continuous contention over the course of this country's history since Federation in 1901. 26
[31] Mr Dowling submits that the authority in Davids Distribution and Alcoa stand for the need certainly to provide notice of the nature of the action (which he says United Voice has clearly done) and the day on which it will start (which they have also done) but that there is no automatic requirement for a higher level of specificity than that provided by United Voice.
[32] With respect to the decision in Telstra Mr Dowling submits that those things that I should consider in determining if the notice in this matter is adequate are ‘the nature of the employer’s operations including their size, the number of employees, the number of locations, the time at which the action is to occur and the employees potentially taking the industrial action.’ 27
[33] Further, he submits that the context and surrounding circumstances in this matter differ substantially from the circumstances in Telstra, such that the decision in Telstra that the notice of industrial action did not comply with the requirements of s.416 is not the case with the notices in this matter.
[34] Mr Dowling sought to distinguish the decisions in PWB Anchor, Adelaide Brighton Cement 28and CSBP relied on by BCPL on the basis that the notices initiating action subject to those decisions did not specify when the action would commence and/or were much less particularised than required in the circumstances of each case than the notices subject to these proceedings.
[35] With respect to the submission of BCPL that the notices did not provide sufficient detail of the employees who would be taking industrial action, Mr Dowling submitted that the description of employees who were to take action in the third and fourth notices was the same as that contained in the first and second notices to which there had been no complaint.
Consideration
[36] The matter to be determined is whether, in the circumstances of this case, the notices provide a level of specificity, as required by the Act and relevant case law, such that BCPL may be given the opportunity to respond by making appropriate defensive arrangements.
[37] The notices are, in my view, clear as to the action to be taken and who shall take it.
[38] The third notice dated 12 September 2011 indicates that the action would consist of a stoppage of 60 minutes duration between specified times. It is apparent from the wording that within each specified block of time there will be one stoppage (see the use of the singular ‘a stoppage’) of 60 minutes. Had it been intended that there would be more than one stoppage the notice would have referred to a number of stoppages (plural). It does not. There is no ambiguity or uncertainty.
[39] The fourth notice dated 13 September 2011 is clear that on each of the days there will be six stoppages of 30 minutes duration, which may be consecutive. To this extent the stoppages may be consecutive implying that they may be rolling stoppages.
[40] Those taking the action are members of United Voice whose employment would be subject to the proposed collective agreement. It is clear who shall participate in the action as notified in each of the notices.
[41] The complaint of BCPL seems to be that they do not know precisely when the action is to be taken (ie what time it shall specifically start and end as opposed to a band of time within which it may occur) and they do not know who specifically will be participating in the action at any particular point in time. There is no question that BCPL is aware of the day or days when the action shall occur. When asked if their concerns would be alleviated if employees advised when they were about to take the action as specified in the fourth notice BCPL indicated that this would not be adequate.
[42] It appears to me that BCPL seek a greater level of detail as to the time and the names or locations of employees taking action as specified in the notice for no other reason than to allow it to organise its alternative labour as efficiently and with the least cost as possible. As Mr Baltatzis said the current notices will require BCPL to put in place a shadow workforce for a greater period of time than the action taken. It is not that BCPL cannot put in place alternative defensive arrangements on the notices provided, it is that they wish to put in place more efficient alternative arrangements.
[43] As the Full Bench observed in Telstra, the purpose of the notice is to give the employer an opportunity to respond by making arrangements to deal with labour, including making appropriate arrangements to deal with suppliers and contractors.
[44] It is not the case in this matter that there is machinery that requires a controlled shut down (as in Davids Distribution) or that there are serious safety issues (as in CSBP Ltd) that must be attended to prior to any industrial action. Were that the case my decision might be different.
[45] In Alcoa Barker J stated that:
I consider, therefore, there is force in a submission made on behalf of the union in this case that s 414(6) should be construed with an understanding that under the FW Act the respondent has the right to engage in protected industrial action. Generally, the reason for industrial action is to cause a degree of inconvenience and expense to the employer as a legitimate bargaining tool. The fact that the applicant may suffer a loss of profits and its operation and staff may be inconvenienced is no reason of itself to find that a notice should be as specific as the applicant in this case would like it to be.
In these circumstances, while I accept there is a serious question to be tried, having regard to the authorities, such as they are, I do not consider that, in the particular circumstances of this case, the general question concerning specificity raised by the applicant is at the high end of a scale of seriousness. 29
[46] This is, in my opinion, a correct view and is apposite in this case. The Act gives employees the right, under certain circumstances to take industrial action with protection. Davids Distribution places some requirements on the content of the notice for a particular reason and that is to enable the employer to put in place proper defensive action. This must be balanced, however, against the rights given to employees. Of course the industrial action will cause inconvenience. This is the reality of bargaining under the current legislative framework. It would be wrong, however, to suggest that the purpose of the notice of industrial action is to enable the employer to offset all of the inconvenience of such action.
[47] I reject the argument put for BCPL that the lack of specificity in the notices may affect BCPL’s right to exercise its legal rights. There is nothing in the notices that in any way affects the capacity of BCPL to take protected employer response action in accordance with s.411 of the Act. Employer response action is action organised or engaged in as a response to industrial action by a bargaining representative or an employee taken against one or more employees that will be covered by the agreement and that meets the common requirements for industrial action specified in the Act. I am at a loss to understand how the notices of United Voice could invalidate employer response action properly taken.
[48] This is a matter where some 89 employees who are cleaners at Tullamarine and Avalon airports, out of a workforce of approximately 129 employees, will take strike action for a limited period of time on 16 September 2011 and 17, 18 and 19 September 2011. The place where the action will take place and times within which the action shall occur are clear. The employees who shall participate are known. The action will take place at airports. There is no evidence that this will do any harm beyond inconvenience. BCPL says the work to be banned is necessary work. Little paid work is not. But these are short stoppages of work following which the work will resume. There is inconvenience in the action but this is ‘no reason of itself to find that a notice should [be] as specific as the applicant in this case would like it to be.’ 30 The employer has contingency plans. That it would like to refine these further is no reason to find the notices given by United Voice are deficient such that the action would not be protected.
[49] The decision in this matter must be made on the circumstances before me. There is no particular circumstance in this case that convinces me that there should be a greater level of specificity in the notices.
[50] I find that the notices provided by United Voice on 12 September 2011 and the 13 September 2011 have been made in accordance with s.414 of the Act. The requirements of s.413(4) of the Act are therefore met. The industrial action is therefore protected.
[51] The application for orders is dismissed.
COMMISSIONER
Appearances:
D. Trindade for the Applicant
C. Dowling for the Respondent.
Hearing details:
2011.
Melbourne:
September 15.
1 PR510096.
2 PR514305.
3 Exhibit BC 1, attachment CB1.
4 Exhibit BC1, attachment CB2.
5 Exhibit BC1, attachment CB3.
6 Exhibit BC1, attachment CB4.
7 s.413(4).
8 [2011] FWA 6405.
9 Exhibit BC1, paragraphs 11-13.
10 Exhibit BC1, paragraph 15.
11 Exhibit BC1, paragraphs 24-8.
12 Exhibit BC1, attachment CB5.
13 Exhibit BC1, attachment CB6.
14 (1999) 91 IR 198.
15 (1999) 91 IR 198, [87].
16 [2000] FCA 1482.
17 [2000] FCA 1482, [27]. See also Adelaide Brighton Cement v Australian Workers Union [2002] FCA 601, [22].
18 [2007] FCA 539.
19 [2007] FCA 539, [94].
20 [2009] FWAFB 1698.
21 [2009] FWAFB 1698, [12].
22 [2009] FWAFB 1698, [18].
23 (1999) 91 IR 198, [84].
24 (1999) 91 IR 198, [88].
25 (2010) 196 IR 103.
26 (2010) 196 IR 103, [33].
27 [2009] FWAFB 1698, [12].
28 [2002] FCA 601.
29 196 IR 103, [35]-[36].
30 196 IR 103, [36].
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