Boral Resources (NSW) Pty Ltd v The Australian Workers' Union
[2009] FWA 1412
•7 DECEMBER 2009
Note: An appeal pursuant to s.604 (C2009/11214) was lodged against this decision - refer to Full Bench decision dated 31 March 2010 [[2010] FWAFB 1771] for result of appeal.
[2009] FWA 1412 |
|
DECISION |
Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.
v
The Australian Workers' Union
(C2009/255)
SENIOR DEPUTY PRESIDENT HARRISON | SYDNEY, 7 DECEMBER 2009 |
Application for orders to stop industrial action; relevance of s.414 notices to take industrial action and then employees not taking such foreshadowed action.
[1] Boral Resources (NSW) Pty Ltd (Boral) made application under s.418 of the Fair Work Act 2009 (the Act) for an order directed to The Australian Workers’ Union, New South Wales (the Union), its delegates, officers, employees and agents who undertake work in connection with employees of Boral and to members of the Union who are employed by Boral at its Dunmore quarry situated in New South Wales. Upon the completion of the hearing of the application I said that I was not persuaded that the pre-requisites for the making of an order had been established and I dismissed the application. These are my reasons for that decision.
[2] The Union was a transitionally registered association prior to 1 July 2009 and is now a transitionally recognised association. 1 It has members employed by Boral at its Dunmore quarry. In its role as a bargaining representative it is seeking an enterprise agreement for employees at the quarry. There is some background to its attempts to achieve that outcome but to place them into context and why they have led to this application I should first refer to the evidence led by Boral.
[3] An affidavit of Mr Kevin Larcombe, the Operations Manager for Boral’s New South Wales metropolitan quarry business was tendered. I made rulings in relation to paragraphs 50 to 57 of that affidavit which addressed matters that had occurred between February and July 2009. In light of the decision I made I do not need to comment further upon that ruling.
[4] Mr Larcombe’s affidavit described the nature of the activities carried out at the Dunmore quarry, the numbers of employees there engaged and the jobs they did as well as the shift patterns that were worked. I do not need to here refer to those matters in any detail. He also described the customers of the quarry and, in this respect, he identified that there were both internal customers which were “distinct businesses and/or separate legal entities within the Boral group” and external customers. He said that there were no contracts in place with either category of customer and, in respect of the external customers, they could purchase the product produced at the quarry elsewhere if Boral was unable to supply them.
[5] Mr Larcombe referred to a contract the company had with Pacific National Pty Ltd (Pacific National) for the dispatch of product by rail. A maximum of 10 trains per week between Monday and Friday may be provided to the quarry. At the time of the hearing the company was ordering two trains per day Monday to Friday and it was likely to continue to do so for the foreseeable future. Subject to availability, a maximum of two trains can be provided on Saturdays on request. On Mondays to Fridays the morning train arrives at 6am and departs at 8.30 am and the afternoon train arrives at approximately 6pm and departs at 8pm.
[6] Boral is required to provide Pacific National with at least 48 hours notice of a train cancellation to avoid a cancellation fee. It seems that there are different penalties that may be imposed depending on whether the full notice is given or some lesser period and depending on whether there is sufficient time to stop the train departing from Sydney. If Boral cannot have its product carted by rail it needs to resort to cartage by road which costs more per tonne.
[7] The actual amounts of the penalties occasioned in relation to each factual scenario Boral here relies upon were not in evidence although it was estimated that a cancellation of two trains and the need to transport by road would result in a cost to Boral of around $31,000.00.
[8] In addition to product that is normally carted by rail Boral undertakes transport of some product by road and this is done by Boral Transport Limited. It is “custom and practice” to provide that company with at least 24 hours notice of any truck cancellation.
[9] Some of the external customers make their own arrangements to collect product from the quarry by truck. If there is industrial action without proper notice it is likely those customers incur a cost associated with the arranging for that transport.
[10] I will now summarise the activities at the quarry that gave rise to this s.418 and other applications.
[11] On 1 October 2009 an order issued under s.443 of the Act for a protected action ballot of the relevant employees of Boral. The questions the employees were asked to authorise related to industrial action by way of overtime bans and unlimited four and 24-hour stoppages (each of which could include consecutive periods). The result of the ballot was declared on 14 October 2009 with majority support for the taking of each type of industrial action.
[12] On 23 October 2009 the Union gave notice to Boral under s.414 of the Act. The notice contained advice that “On and from Thursday, 29 October 2009 all members will commence a series of periods of industrial action. The nature of the industrial action is as follows…” The notice then referred to rolling stoppages of 24 hours duration that would be “on from Thursday, 29 October 2009” and rolling stoppages of four hours duration that would be “after the conclusion of the first 24 hour stoppage described above...”
[13] As a result of receiving the notice of 23 October Boral took a number of steps. It advised internal and external customers it would be unable to provide them with product on 29 October 2009. Some of those customers arranged to have additional product delivered the day before or the day after. Boral also cancelled the morning and afternoon trains for 29 October. As it had more than 48 hours of the intended action it did not incur a penalty for the cancellation.
[14] No industrial action took place on 29 October 2009. The Union gave no notice to Boral that it would not take action on that day. The sales for the day were down and less work than normal was available for employees to do on that day in the areas of sales and dispatch.
[15] On 2 November 2009 at around 6am employees at the quarry withdrew their labour. Boral regarded the action as being unlawful industrial action and provided a memorandum about it to the employees and the Union. It asserted that the action was unlawful because it had not been provided with adequate notice or information about the nature of the industrial action. It requested employees to return to work by 7am and also advised of the financial consequences that were likely to result from the action. The memo noted that Boral may take legal action against both the employees and the Union to recover its losses.
[16] At approximately 8.45am on 2 November 2009 Boral lodged an application under s.418 of the Act seeking orders that industrial action being taken by the Union and employees cease and that no further action be taken. That application was listed for hearing in the afternoon of 2 November. After discussions with the parties, particularly about the competing arguments as to the adequacy of the 23 October 2009 notice by reference to the requirements of s.414(6), the parties reached agreement and the application was not pressed. An undertaking given by the Union was read into transcript. In summary, it was that the Union no longer relied on its notice of 23 October 2009, that it would not take any further industrial action pursuant to that notice, that it would provide notice in accordance with the provisions of s.414 should further industrial action be taken in the future and that the terms of the undertaking would be placed on the notice board at the quarry.
[17] Employees returned to work at the quarry at around 3.30pm on 2 November 2009.
[18] Boral incurred costs as a result of the industrial action on 2 November. The costs related to train cancellations and additional road cartage costs. It also indicated that it lost sales identifying one customer who purchased product from a competitor on both that and the following day.
[19] On 3 November 2009 the Union provided a written notification pursuant to s.414 of the Act. It advised Boral that industrial action would be taken on Monday, 9 November 2009 at the commencement of ordinary hours when employees would either not attend for work or cease work for a period of 24 hours. At the conclusion of those 24 hours the employees would resume or commence work.
[20] On 4 November 2009 the Union provided a written notification to Boral under s.414 of the Act advising that industrial action would be taken on Tuesday 10 November 2009 at the commencement of ordinary hours and at that time employees would not attend work or would cease work for a period of 24 hours. At the conclusion of that period the employees would resume or commence work.
[21] In response to the notices received on 3 and 4 November Boral contacted internal and external customers advising them they would be unable to provide product on 9 and 10 November 2009. Many of its customers arranged to have additional product delivered on 7 and 11 November 2009 to make up for the product shortfall. The morning and afternoon trains for 9 November were cancelled and no penalties were incurred. It was likely however that there may need to be some road cartage that would occur at a later time which was likely to result in increased cartage costs. One customer indicated that product it otherwise would have had delivered for 9 and 10 November would be purchased from a competitor and this would result in lost revenue for those two days.
[22] Industrial action as foreshadowed in the 3 November s.414 notice was taken on 9 November 2009.
[23] Shortly after 9am on 9 November the Union sent a letter, by facsimile, to Boral referring to its notice of 4 November 2009 and advising that “the industrial action on 10 November 2009, will not take place”. No industrial action took place on 10 November 2009. Employees attended on that day as rostered however the work available for them on that day was less than would have normally been the case. This was because some customers had taken delivery of product earlier and others were to take delivery of product on 11 November 2009. A customer had expressed concern to Boral at the “lack of clarity with respect to Dunmore Quarry product availability”.
[24] I now turn to the applications before me. On 9 November 2009 Boral filed two applications, the first under s. 229 of the Act and the other under s.418. Each application was listed before me on the following day, 10 November 2009.
The s.229 application 2
[25] I can deal with the s.229 application briefly. A bargaining order was sought by Boral. The terms were that the Union “shall not issue a notice of the intention to take industrial action” unless the notice complies with the requirements of s.414 and “the person issuing the notice believes, on reasonable grounds, that the members employed by the Company will take the industrial action specified in the notice”. A provision in the order sought also dealt with the burden of proof and provided the burden of establishing that reasonable grounds existed would be upon any person who issued the notice. It also provided that the Union was to “act fairly and in good faith” when negotiating and bargaining for a proposed enterprise agreement. The grounds relied upon in the application were largely those set out earlier by me in relation to events that had occurred between October 2009 and 9 November 2009. The grounds described the Union’s conduct in notifying action and then not taking it as being capricious and unfair and undermining the collective bargaining process.
[26] The application did not proceed very far on 10 November. I indicated that I was not prepared to grant Boral relief from compliance with the requirements of ss.229(4)(b) and (c). Those two provisions are part of the pre-requisites for making an application. The first requires Boral to have given written notice setting out its concerns to the Union prior to applying for a bargaining order. The second is that Boral had then given the Union a reasonable time within which to respond to its concerns. Neither had been attended to by Boral and I was not satisfied that this was an appropriate case in which to exercise my discretion to waive compliance with those requirements. 3 This application has proceeded no further since that time.
The s.418 application
[27] The relevant provisions of s.418 are as follows;
“(1) If it appears to FWA that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:
(a) is happening; or
(b) is threatened, impending or probable; or
(c) is being organised;
FWA must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.”
[28] The definition of industrial action is in s.19 of the Act. That section reads;
“19 Meaning of industrial action
(1) Industrial action means action of any of the following kinds:
(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d) the lockout of employees from their employment by the employer of the employees.
Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.
(2) However, industrial action does not include the following:
(a) action by employees that is authorised or agreed to by the employer of the employees;
(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;
(c) action by an employee if:
(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.
Note: In this section, employee and employer have their ordinary meanings (see section 11).”
[29] I should first make some comments about what action has not been taken into account by me. Boral sought to rely on what had occurred on 2 November and the costs incurred as a result of the actions by employees on that day. It submits it did not have adequate notice of this strike and was unable to make alternative arrangements for a customer who then purchased product from a competitor. In light of the agreement reached between the parties on 2 November and the undertakings given on that day I am not inclined to rely at all on the action taken by employees on 2 November 2009 for the purposes of this application. The Union made no concessions about what had occurred on that day and I made no findings. In any event the action that led to that application would not have been relevant to whether industrial action was happening at the time I heard the subsequent s.418 application the subject of this decision. In light of the agreement reached it would also have been of little weight in relation to whether such action may have been relevant to a finding on this application that industrial action was impending or probable.
[30] Boral does not rely in this matter on the 3 November notice given under s.414 nor the taking of industrial action on 9 November 2009 as foreshadowed in the notice. 4
[31] Much of Boral’s submissions constitute complaints about the practical consequences for it of the industrial action foreshadowed in the s.414 notices not in fact being taken. I will refer to the various ways these complaints are made later.
[32] The key and first consideration must be whether it appears to me that industrial action by one or more employees is happening, is threatened, impending or probable or is being organised. I need to be satisfied about each is if I was to make the corresponding remedial orders. Boral sought an order that the Union, its officials and members are to stop any industrial action, not to take part or threaten to take part in any industrial action in the future and to stop organising any such action.
[33] Boral submits that as a result of the 23 October 2009 notice of intention to take strike action on 29 October 2009 and the employees then attending for work on that day, work normally undertaken by some of those employees was delayed, restricted or limited. An example is that there was less work available for employees to do as no train loading occurred there being no trains to load. Similarly there was a delay in delivery of tonnage that would have been delivered on 29 October until 30 October and this was a direct result of the notice to take intended industrial action. There was less work for employees to do as a result of the 23 October 2009 notice of intended strike action.
[34] As a result of the 4 November 2009 notice of intention to take strike action on 10 November and the employees then attending for work on that day the work available for employees was limited. This was because some customers cancelled their orders for tonnage for delivery on that day and this resulted in less tonnage needing to be extracted by employees.
[35] Boral submits that in each case the practice adopted by the Union and the employees resulted in a restriction, limitation and delay in the performance of work on each day. And, it submits, such restriction, limitation and delay falls within the definition of industrial action in s.19.
[36] As I have earlier observed Boral seek all three possible orders under s.418. That is, that action stop, not be taken and not be organised. To obtain each order it needs to establish that industrial action is happening, threatened, impending or probable or being organised, as the case may be. 5 Boral’s evidence and submissions made out none of those pre-requisites. There was no evidence of industrial action happening. Nor any evidence, or no adequate evidence, industrial action impending or probable. I note in this respect Boral said very little in its submissions to persuade me of about this limb of its argument. There were no submissions or evidence about the third limb that industrial action was being organised.
[37] Only ss.19(1)(a) or (b) could have been relevant in this matter. Boral principally relied upon is s.19(1)(b) but its reference to the “delay” in work being done suggests it also relies on s.19(1)(a). Boral places no significance on the words in each subsection, and in s.418, that the industrial action has to be “by an employee” or “by one or more employees”. In that sense the employee is to have initiated the action, or instigated, or be associated with the action coordinated by, for example, the Union. None of that was established by Boral’s evidence.
[38] Each of the practical consequences for Boral and what it categorises as industrial action was not as a result of any action by employees but of either Boral’s decisions or those of its customers acting on advice given to them by Boral. The Union is right in my opinion when it submits that quite simply the employees had attended for work on each of the days complained about and work was undertaken by them in the customary and usual way. No evidence suggested that any requirements of them on any of the shifts on those days were not attended to. They attended ready, willing and able to perform work. In this regard I do not agree with Boral’s reference to the employees “purporting” to turn up for work. They did turn up.
[39] It is not strictly necessary to address the various other arguments of Boral. However as they have not been the subject of any decisions or judgements I am aware of it may be useful to record them.
[40] Boral submitted that the behaviour of the Union, as bargaining agent, in giving and then withdrawing notice gave rise to industrial action by the employees. I do not agree. Certainly the notice allowed Boral to take such defensive action as it considered appropriate. It choose to take the action that I have referred to earlier. It did not need to take any of that action. It could have considered what applications were open to it under the Act, it could have considered response action or it could have done nothing. And, in the latter case the argument now run by Boral would not have been open to it.
[41] I also note that Boral consistently referred to the withdrawal of the 4 November notice. In fact nowhere is the word “withdrawal” used. The Union’s advice in its 9 November letter was that the action foreshadowed for 10 November would not take place. It may be, as Boral submits, that it matters not whether that action is described as the withdrawal of the s.414 notice or advice that the foreshadowed action would not take place. Boral says they are one and the same. It is not necessary to pursue this consideration further.
[42] Boral submits that the Union is conducting itself in a manner that is contrary to the terms of the Act by giving notice and then not taking it. It says that the purpose of the requirement to give notice was to enable an employer to take defensive action and, in this respect, the observations made by the Federal Court of Australia in Davids Distribution Pty Ltd and National Union of Workers 6 (Davids Distribution) are relied upon. I interpose here to observe that the section being considered in the extract Boral relies upon was s.170MO(5) of the Workplace Relations Act 1996 (WR Act) a section which was in similar, but not identical terms as s.414(6). I also note the facts there under consideration and the key question being whether the dismissals of employees who had been involved in strikes and picketing were contrary to the WR Act and, in that context, if picketing came within the definition of industrial action. At paragraph 87 of their judgement Justices Wilcox and Cooper said;
“We think s170MO(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 lockout 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.”
[43] It is clear that the observations of the majority were made in the context of considering what descriptions might be adequate to comply with the then requirements of the WR Act that the nature of the intended action was to be stated as was the day when it would begin. And, in the case before them, they criticised the generality of the words used in the notice there being considered as not being adequate to indicate the nature of the intended industrial action.
[44] In any event, no one challenges or doubts that one of the purposes of the requirement under s.414(6) to specify the nature of the action and the day it will start is to enable an employer to take the type of defensive action referred to in the above quotation. Boral however does not identify any part of the decision in Davids Distribution that supports its argument that a notice once given cannot be either withdrawn or not acted upon and nothing was identified to persuade me that in doing so a union or employees would be conducting themselves contrary to the terms of the Act.
[45] On a similar theme Boral categorises a notice given to it in accordance with s.414 as a valuable right. Acting on that right Boral had taken action to restructure its operations so as to minimise the effect of the industrial action. The return to work of employees on the day (and them not taking the foreshadowed industrial action) had rendered that right nugatory. Assuming that to be so however it is unclear which provisions of the Act it submits suggests this is not open to an employee or employees to do. I indicated to Boral’s counsel that it is, and has been, common place in the current bargaining regime and that under the WR Act for the withdrawal of a notice to take protected action or for it not to be acted upon. Boral submitted that the Federal Court decision of Justice Gray in Birrell and Australian National Airlines Commission 7(Birrell) supports its argument.
[46] I turn to the decision in Birrell. It concerned an application for the imposition of penalties for the breach of an agreement certified by the then Flight Crew Officers Industrial Tribunal. The facts related to the termination of the employment of the applicant pilot. He had prepared a letter of resignation and provided it to his employer. Subsequently he asked for the return of his letter of resignation and for a number of reasons asserted it had not been effective to constitute a resignation or to terminate the contract of employment. He wished to continue in employment. In the context of considering principles relating to the contract of employment a question arose as to whether the unilateral withdrawal of a notice of resignation is possible. His Honour said that the authorities supported the view that the unilateral withdrawal of a notice of termination of a contract of employment is not possible. His Honour commented upon the purpose of providing for a period of notice of termination to be given by one or the other party. He gave examples of what could occur during the notice period. An employee may seek another job and an employer may arrange for a substitute employee. It would be harsh, he said, for arrangements made during the running of the notice period to be disrupted and the parties held to their original contracts by the unilateral withdrawal of notice at the last minute. His Honour said “… I should follow the authorities which tend to establish that withdrawal of a notice of termination of a contract of employment can only be effected by consent of both parties”. 8
[47] The Union submits this decision simply restates the common law principle that, in the case of contracts of employment, a party may not unilaterally withdraw a notice of termination. It has nothing to do with the construction of the provisions of the Act for which Boral contends, nor s.414 in particular. I agree.
[48] Boral also submitted that the giving of notice and then not acting upon it was not authorised by the protected action ballot. The notice contained a representation that was false and misleading, it submitted. The misrepresentation of its position was not an act of good faith. Boral then developed the submission by reference to the actions being taken as being contrary to the Act’s good faith bargaining obligations. This submission conflates numerous considerations that may be relevant to one or other application made under the Act. I did not find it useful or persuasive.
[49] There was no evidence at all that, at the time the s.414 notice was given, it was not the intention of the Union and its members to take the foreshadowed action. Furthermore the reason for giving the notice is that it is a requirement under the Act to enable the Union and its members to take protected action. But, having given the notice, nothing in the Act suggests that the Union and its members are obliged to carry through with the action as foreshadowed. There may be numerous reasons for not taking the action which may have arisen after the date of the notice.
[50] I was not assisted by Boral’s arguments by reference to the good faith bargaining requirements in s.228 of the Act. Even if it had been relevant there was no evidence to persuade me that the Union was not bargaining in good faith. It may be that an application properly made with adequate evidence of a pattern of behaviour could be the basis for orders under s.230 of the Act. The obligation to bargain in good faith applies throughout the course of bargaining for an enterprise agreement, but those considerations are not relevant to this s.418 application.
[51] The Union referred to the decision of Justice Cooper in the Federal Court of Australia in Anglo Coal (Capcoal Management) Pty Limited v The Construction, Forestry, Mining & Energy Union 9 as being directly relevant to show the error in the construction of the Act for which Boral contends. I doubt it is directly relevant but certainly several observations made in that case can be adopted in respect of some of the arguments Boral raised in this application.
[52] The facts of that case were that two unions had given written notice to the employer pursuant to the then provisions of s.170MO the WR Act of the intention to take industrial action. One union had served 132 notices over a period of some two months and, in respect of those, in 49% of them the foreshadowed industrial action did not occur. The other union had served 114 notices over a similar period and, in the case of 53% of them, the foreshadowed industrial action did not occur. The employer filed an application in the court seeking injunctive relief and penalties for alleged contraventions of the WR Act. The specific contravention was said to be of s.170NC which relevantly related to persons not taking or threatening to take industrial action with intent to coerce another person to agree or not to agree to the making of an enterprise agreement. An order was also sought directed to the unions, their members and employees that they be restrained from issuing notices under s.170MO except in circumstances where the union had reasonable grounds to believe that the action referred to in the notice will, unless formally withdrawn, take place. His Honour considered a number of decisions that had dealt with the section or one similar to it and, in that context, considered what needed to be made out to establish “the intent to coerce”. He was not satisfied there was a serious question to be tried that the giving of any or all of the notices was intended by the unions to negate the company’s choice to refuse to make any agreement proposed by them if the company did not wish to make such an agreement.
[53] In the context of considering whether the giving of a notice under the WR Act could constitute an unlawful, illegitimate or unconscionable means by which to apply pressure on the employer with the intention of coercing it to make an agreement it does not wish to make His Honour said;
“46 The statutory purpose of a notice under s 170MO(2) is to provide notice of industrial action of the type specified in the notice to enable the recipient to take such action as it may deem appropriate to protect its interests prior to the commencement of the industrial action: Davids Distribution Pty Ltd v National Union of Workers at [87]. The notice provision in s 170MO(2) is to protect the recipient from precipitous industrial action. Such protection does not extend to protection from the consequences of the industrial action not being carried into effect, nor to protection from the consequences of failing to take adequate and timely steps to protect oneself against the effects of industrial action in fact taken in accordance with the notice, where the recipient formed an erroneous view that industrial action in accordance with the notice would not take place. The purpose of the notice is also to allow the notifier, at the expiration of the notice, to take protected action, if in the view of that notifier, the taking of such action is then in its interests. No final decision to take protected action can be taken or given effect to until after the expiration of the notice under s 170MO.
47 The only way that the applicant can attempt to take the present notices outside the statutory scheme, is to contend that there is to be implied into s 170MO(2) a precondition to the ability to give a notice which falls within the scheme. The precondition, contended for by the applicant, is that there exist circumstances which would reasonably entitle the party giving the notice to believe that the industrial action foreshadowed in the notice will take place on the expiration of the notice. That is, that the only proper purpose of the giving of notice is to protect the notifier in respect of industrial action which is then intended to be taken and to put the recipient on notice of the intended industrial action. Thus, the applicant submits that to use the giving of a notice for any other purpose is an improper use, and not one which is contemplated by s 170MO. The submission involves the contention that, a notice under s 170MO cannot be given by the respondents for the sole purpose of enabling them to make a decision at the expiration of the notice period whether or not, in the circumstances which then exist, to take the foreshadowed industrial action.
48 The applicant seeks to gain support for the implication of a precondition based on the existence of reasonable grounds to believe that some present facts exist, by reference to the use of such a condition in s 83BS(1) and s 170WHB(1) of the Act. The express use of such a test in those sections, in my view, indicates that when the legislature intended such a test to apply, it provided expressly in terms for such a requirement. The absence of such an express provision indicates, in my view, that s 170MO(2) was to be given effect to according to the ordinary meaning of the words in the context where they appear, having regard to the statutory purpose of the subsection.”
[54] Finally, had I been persuaded the pre-requisites were made out, a number of considerations would then have arisen about the terms of the draft order sought by Boral 10. I need not deal with them in any detail however paragraphs 4.1(d), 4.2 and 4.3 would need to be addressed. It is not readily apparent that an order could properly be made in those terms.
[55] It was for these reasons I dismissed the s.418 application made by Boral.
SENIOR DEPUTY PRESIDENT
Appearances:
K Bennett, counsel for Boral Resources (NSW) Pty Ltd.
A Hatcher, counsel with G Sivaraman for Australian Workers’ Union, New South Wales.
Hearing details:
2009.
Sydney:
November 10, 12.
1 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, schedule 22 item 627
2 B2009/11007
3 S.229(5)
4 Transcript PN 25
5 Transport Workers’ Union of NSW v AIRC [2008] FCAFC 26
6 [1999] FCA 1108
7 [1984] 5 FCR 447
8 [1984]5 FCR 447 at 458
9 [2003] FCA 1073
10 Exhibit A6
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