Burswood Resort (Management) Ltd T/A Crown Perth v United Workers' Union

[2019] FWC 7659

[2019] FWC 7659

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action

Burswood Resort (Management) Ltd T/A Crown Perth
v
United Workers’ Union
(C2019/6795)

DEPUTY PRESIDENT BEAUMONT PERTH, 13 NOVEMBER 2019

Alleged industrial action at Burswood Resort (Management) Ltd T/A Crown Perth.

[1] The parties to this application are currently bargaining for a new enterprise agreement to replace the Hospitality Sector WA United Voice – Crown Perth Enterprise Agreement 2016 (Agreement). It appears that they are not in agreement about the terms of a replacement agreement and as such industrial action has been resorted to, perhaps with a view of leveraging a bargaining position. Since 2 November 2019 until 6 November 2019, members of the United Workers’ Union (the UWU), known as United Voice at the time of the application, have been participating in various forms of purported industrial action, pursuant to various notices issued. 1

[2] The history of such action is brief. On 1 October 2019, I issued an Order 2 for a protection action ballot to be held. In short, that ballot resulted in the endorsement of 25 different types of protected industrial action.3

[3] On 3 November 2019, I issued an Order 4 and reasons for decision5 after Burswood Resort (Management) Limited (Crown Perth) applied to the Fair Work Commission (the Commission) on 1 November 2019, for orders in relation to certain industrial action, which the UWU was organising to take place on Melbourne Cup Day. The order prevented a two-hour work stoppage from 11:00am - 1:00pm. However, members of the UWU were not precluded from stopping work for four hours.

[4] This decision concerns another application by Crown Perth seeking that the Commission make orders in relation to certain industrial action, which Crown Perth asserts the UWU was organising to take place from Saturday, 9 November 2019, until 6.00am on Monday, 11 November 2019.

[5] This application has been made under s 418 of the Fair Work Act 2009 (Cth) (the Act) and like the prior application lodged on 1 November, the issues are relatively narrow. They relate to one notified form of action in the Notice of Employee Claim Action, dated 5 November 2019 (the Notice):

[A]n indefinite number of stoppages of the performance of work for a duration of 15 minutes not more than once per hour (for members employed in Table Games). Employees will stop work by giving notice and securing tables as per the agreed process for the action on 5 November 2019.

[6] To illuminate the issue further, it should be said that Crown Perth asserts that the action, if properly construed, is actually two separate forms of industrial action. The challenges to the protected status of those two forms of industrial action, are as follows:

a) as to the first sentence (the stoppages), the Notice does not adequately specify the nature of the intended action for the purposes of s 414(6) of the Act, having regard to the purpose of that provision; and

b) as to the second sentence (the closing procedure), this form of industrial action was not authorised by a protected action ballot as required by s 409(2) of the Act, because it was not the subject of the ballot (s 459(1)(a)).

[7] Contrary to that position, is the UWU’s view that the action is but one action and is covered by only one type of action on the protected action ballot – No.24. ‘an unlimited number of stoppages of the performance of work between 5 minutes and up to 1 hour.’

[8] The UWU submits that in order for the Table Game members to participate in work stoppages, it is necessary for them to stop working. Therefore, the UWU has included the second sentence not as a separate form of action, but to:

a) inform Crown Perth that the tables will not be ‘closed using the proper closing procedure’; as tables are only able to be closed under instruction from a Table Games Manager; and

b) reassure Crown Perth that patrons and Crown Perth will receive sufficient notice before the stoppages, and that tables will be secured, in order to ensure that the casino licences of both Crown Perth and the table games employees are not jeopardised.

[9] Furthermore, the UWU contends that the Notice provides that an identified group of employees will engage in short, discrete stoppages of work for durations of 15 minutes, and that the stoppages will not occur more than once per hour. The Notice does not advise the exact times that the stoppages will occur and their frequency – but, advances the UWU, there is no requirement to do so.

[10] On 8 November 2019, I issued an Order, 6 which amongst other matters, precluded Table Games employees from stopping the performance of work for a duration of 15 minutes over the relevant period and securing of gaming tables, as per the agreed process for the action on 5 November 2019. Here are my reasons for issuing that Order.

Background

Crown’s operations

[11] In my decision of 3 November 2019, 7 I provided background to Crown Perth’s operations. I do not intend to repeat what I said there. However, given the challenges pursued by Crown Perth, further context concerning its operations is warranted. Ms Cairns, General Manager Table Games, gave evidence on behalf of Crown Perth. Ms Cairns’ evidence was unchallenged.

[12] Crown Perth has a 24 hours a day, seven days a week, licensed Casino (Table Games and Gaming Machines) (Gaming) located across three buildings consisting of: the Main Gaming Floor and the International Gaming Floor (IGF). 8 The IGF comprises of several separate gaming facilities including the Pearl Room, Diamond Room, Private Salons that are located over two buildings and three levels in Crown Towers and the Crown Metropol.9 Crown Perth is apparently licensed to operate 2,500 gaming machines and 350 gaming tables.10

[13] There are 1288 employees that fall under the Casino Gaming Operations classifications under the Agreement. Within Gaming, employees will typically work a rotating shift roster (involving morning, day and night shifts), permanent morning shifts and permanent night shifts. The shift start times and durations vary.

Regulatory framework and licensing

[14] Ms Cairns gave evidence that Crown Perth operates within a highly regulated framework of legislation. 11 Many of the employees covered by the Agreement are required to hold a Casino Licence (Casino Employee Licence – terms used interchangeably) or Key Casino Licence to perform their role.12 This licence is issued by the Gaming and Wagering Commission of Western Australia (GWC) under the Casino Control Act1984 (WA) and Casino Control (Burswood Island) (Licensing of Employees) Regulations 1985 (WA).13 According to Ms Cairns, 1,170 of the employee covered by the Agreement hold a Casino Licence and 84 employees hold a Key Casino Licence.14

[15] Employees that hold a category ‘c’ Casino Licence, can only be deployed in an approved position (which is stated on the licence itself) that involves dealing and/or inspecting table games provided they are trained in and deemed competent to conduct that specific game type. 15 Predominately this group consists of Dealers and Inspectors.16 Managers in Gaming hold a category ‘C’ Casino Key Licence and may also deal and/or inspect table games if they are trained in and deemed competent to conduct that specific game type.17

[16] Ms Cairns stated that to be competent to deal games on gaming tables, Dealers are required to have completed a minimum of 5 weeks’ training to conduct one major game (for a new Dealer), at the end of which they must be assessed as competent in the rules and procedures of the game/s that they are to deal as part of their role. 18 In addition to being assessed as competent, a Casino Employee Licence must be obtained before a Dealer is authorised to be deployed to an approved Dealer position and deal in a live gaming environment.19 Ms Cairns said that it takes approximately 2 weeks to obtain the required licence.20

[17] Holders of other Casino Employee Licences can only perform their specific role within the Casino, but not other roles unless restrictions on their licence are changed or removed by the GWC – which normally takes approximately seven days. 21

[18] Ms Cairns provided the following detail regarding obligations of licence holders:

Under r.15 (2A) of the Casino Control (Burswood Island) (Licensing of Employees) Regulations 1985, it is a condition of every licence issued under these regulations that the holder shall comply with:

a. the rules for authorised games approved under section 22(2) of the Casino Control Act 1984; and

b. the procedures specified in any relevant direction given by the Commission under section 24 of the Casino Control Act1984. 22

[19] In relation to contraventions of legislative obligations, Ms Cairns stated that the GWC may impose one or a combination of a number of punitive measures against a holder of a licence held to be in contravention of r.15, including suspension of their licence, cancellation of their licence, issuing a letter of censure or imposition of a fine (not exceeding $1000). 23

Number of Table Inspectors and Dealers

[20] Ms Cairns’ evidence was that there were 897 Dealers/Inspectors in the Table Games Department, comprising of 167 Inspectors and 730 Dealers. 24 Of these employees, only 88 Inspectors and 306 Dealers are coded to work in the IGF.

Gaming Floor configuration

[21] The Main Gaming Floor is said to consist of six pits. 25 The composition of each pit is as follows:

(a) each pit currently contains between 12 tables to 41 tables;

(b) individual pits may contain a variety of game types, of which Dealers and Inspectors must be adequately trained and deemed competent to deal or supervise;

(c) each pit is configured into pods containing 4-8 tables; and

(d) each table is allocated supervision points as per the Burswood Casino Direction (the Directions – detail of which will be provided in the following paragraphs). 26

[22] The Pearl Room /IGF consists of 11 pits, with pit 25, pit 31 and nine salons situated across two buildings and three levels. Each pit consists of two to 20 tables. 27

[23] In the Table Games Department, the ratio of supervision is mandated in the Directions issued by the GWC. 28 The Directions are said to require at a minimum: (a) one Table Games Inspector to supervise a maximum of 16 points (within the same pit configuration, which may be up to 16 open tables); and (b) one Table Games Manager to manage up to a maximum of 60 tables across multiple pits at any one time.29

The UWU protected action ballot order and declaration of results

[24] In the introductory paragraphs of the decision, reference is made to the protected action ballot order, noting that 25 types of protected industrial action were endorsed. Ms Cairns gave evidence that Crown Perth objected to the application for the protected action ballot order, in large part, because by taking industrial action in particular forms or manners contemplated by the ballot questions the employees may inadvertently breach their (and Crown Perth’s) Casino regulatory obligations. 30

[25] Ms Cairns stated that, consequently, the parties reached an agreed position on the form of some of the questions. 31 The UWU amended action 15 in the protected action ballot question to include a qualification that dealers and inspectors who took industrial action by closing a table, had to follow the proper closing procedures when doing so.32 Ms Cairns expressed that this was done to ensure that these employees did not breach their Casino Licence by simply closing a table, as they were not authorised to do so without prior permission from a Table Games Manager.33

The Melbourne Cup Day four-hour stoppage

[26] At this point, it is helpful to provide background to the four-hour work stoppage on Melbourne Cup Day, and the steps taken concerning the stoppage and Table Games employees. Because the stoppage on that day involved Table Game employees (Dealers and Inspectors) ceasing the operation of the table games, and because those games are unable to be stopped on the spot (due to regulatory requirements), Ms Cairns’ evidence was that a process was implemented by Crown Perth to facilitate the closure of tables before the stoppage was due to commence. 34 This process was implemented with a view to ensuring that the employees themselves were not in breach of licence requirements.35 The process was the subject of a memorandum, dated 4 November 2019, to Table Games employees (5 November process).36

[27] It should be said that according to Ms Cairns, when closing a game there is a ‘proper closing procedure’ for that particular game, which is governed by the rules of that game. 37 The GWC approves the rules of each game, upon approval being granted to Crown Perth, for the conduct of the particular game by the GWC under s 22 of the Casino Control Act 1984 (WA).38

[28] Ms Cairns stated that under the rules of each table game, the gaming table can only be closed with the authority of either the Casino Operator or the Casino Licensee (Crown Perth). The Director of Crown Perth is empowered to exercise this power on behalf of Crown Perth. 39 Under the delegation of the Director, both the Chief Operating Officer and the General Manager Table Games are empowered to exercise the power.40 Ms Cairns detailed the ‘proper closing procedure’ as follows41:

a) the Table Games Manager can make decisions on opening and closing tables under guidance by the Table Games Management;

b) the Inspector must ensure that patrons are given notice that the table is closing, as outlined in the rules of each game and a sign indicating the closing time is placed on the table. Once the Dealer has completed the final, the Inspector checks and adjusts chip counts on the table that is closing, swipes to verify the inventory is correct in the Table Information Manager system (TIM), and checks that the float is locked. Every pit has two sets of keys which remain in the control of the Table Games Manager – who is responsible for up to 60 tables). All tables require keys to open table floats. Card games require keys to access cards (some stored away from the table). Baccarat Tables require keys for both open and close for card access;

c) the Dealer must adjust the float, remove chips as required by the procedures and enter this information into TIM. Upon verification from the Inspector, the Dealer will swipe to acknowledge the close on TIM, place chips back into the float and secure the float lid. The Dealer must then empty shufflers, sort and secure cards and equipment as required by the procedures; and

d) open and close procedures must be completed by skilled and competent casino employees.

[29] Relevant in the context of this application is the point that Table Games employees, including Dealers and Inspectors, cannot close gaming tables in accordance with the rules of each game, Directions, Position Description and established closing procedures without the prior approval of a Table Games Manager who receives guidance from Table Games Management via spreads (open/close hours set for individual tables), briefings and emails. 42

[30] Ms Cairns gave evidence that in order to follow proper closing procedures, the Dealer and/or Inspector may only close a gaming table under instruction from a Table Games Manager, who is authorised to make decisions pertaining to table open/close hours and products offered, under guidance by the Table Games Management. 43

[31] According to Ms Cairns, the time taken to close a game or table varies according to the game. In the ordinary course of events, Ms Cairns stated that Crown Perth allows 15 minutes to properly close gaming tables. 44 However, this did not take into consideration re-opening it within the same 15-minute window.45

[32] In preparation for the four-hour stoppage on Melbourne Cup Day, Ms Lee, Industrial Officer of the UWU and Mr Kucan, Executive General Manager for Human Resources for Crown Perth, liaised about Ms Lee’s concerns that Crown Perth would prevent Table Games employees leaving tables. 46 Ms Cairns stated that in the confined circumstances that applied on Melbourne Cup Day, including the specific nature and duration of the proposed action and the small spread of gaming tables, Crown Perth implemented a process, via instructions to Inspectors and Dealers, whereby Table Games Managers were authorised to close some tables if required.47 This was a departure from the normal closing procedure because Table Games Managers were authorised to close a table (if required) at a specific time, on a specific day, outside the normal spread for that day under direction by Table Games Management who had delegated authority under the rules of the game and the Casino Control Act 1984 (WA).48

[33] Ms Cairns’ evidence was that she made it very clear in her email to Ms Lee on 4 November 2019, that the process for Melbourne Cup Day met the regulatory requirements, provided that the Table Games Managers had communicated the closure to staff. 49 Ms Cairns clarified that what she meant by this was that the direction to close the table had to come from the Table Games Manager.50 Ms Cairns stated that no other closing process had otherwise been agreed, and that the process implemented on Melbourne Cup Day would not be repeated for any period over the course of the Notice.51 Ms Cairns confirmed that Crown Perth would not, nor would any of the Table Games Managers, specifically authorise, instruct or permit the closure of any gaming tables over that period, merely for the purpose of facilitating one or more 15 minute stoppages of work.52

Impact of specificity and ambiguity of the Notice

[34] Ms Cairns’ evidence was that the Notice had effect over a 54 hour period, and that there were currently 747 Table Games employees rostered to work over that period across different shifts. 53 Ms Cairns stated that this could be broken down to 1,070 Dealer shifts (which involves the same Dealer rostered to work more than one shift during that period) and 260 Inspector shifts (which involve the same Inspector rostered to work more than one shift during that period).54 Ms Cairns stated that depending on the time of the day, the number of Inspectors and Dealers rostered to work varied from 50 to 364.55 Depending on the time of when and how an employee intends on closing a table and imposing a 15 minute stoppage, it could potentially cut across two different shifts.56

[35] Ms Cairns expressed that the lack of specificity regarding the nature of the action in question, and the extent of the possible permutations and combinations of stoppages of 15 minutes or more engaged in by any number of Inspectors and Dealers across one and/or a number of shifts, over a 54 hour period, plus the vast number of Dealers and Inspectors on shift at any one time over that period, and the breadth of locations where they worked, resulted in the industrial action being too broad to enable Crown Perth to take appropriate defensive action. 57 It was Ms Cairns’ view that the timing, duration, nature and location of the action were not clearly discernible from the Notice.

[36] Ms Cairns gave evidence of the flow-on consequence on other employees in Gaming if Inspectors took the industrial action of their own volition and without the authority of the Table Games Manager:

a) Health and Safety: as Dealers would not know if their Inspector was taking action or not, potentially increasing the risk to Dealers as support may not immediately be available if required during medical or customer incidents;

b) Failure to escalate issues to management in a timely fashion, including RSG, RSA, unacceptable behaviour putting the licence of the individual and company at risk and removing the ability for their TGM to assist dealing staff;

c) Game protection: as Dealers would not know if the Table Inspector was taking action or not, therefore increasing risk of theft or collusion; and

d) Risk of Dealers not dealing in accordance with all approved Rules and Procedures, which is in breach of their Casino Key Employee Licence or their Casino Employee Licence…

e) The forced closure of tables by Dealers under the Inspector’s supervision, who are not able to participate in the industrial action. This would create a situation where employee[s] are not only being compelled to engage in unlawful industrial action but induce these employees to breach the terms of their licences. 58

[37] Ms Cairns stated that if the disruption was minor then the defensive measures available to Crown Perth would likely include reducing the number of tables, including Games Inspectors working to the maximum 16 points of supervision per pit, and organising additional employees to work overtime to cover Table Games employees taking industrial action. 59 If it was a worst-case scenario, where 747 employees engaged in indeterminate industrial action involving partial work restrictions and stoppage of work, there would be, said Ms Cairns, no realistic or viable defensive measures available, other than to shut down the entire gaming area of the Casino for 54 hours.60 Preparation for a worst-case scenario included consideration of the safety of staff and patrons, gaming integrity of the Casino operations, and meeting regulatory and licensing requirements.

Legislative framework

[38] Division 4 of Chapter 3 – Part 3 of the Act provides as follows:

418 The FWC must order that industrial action by employees or employers stop etc.

(1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:

(a) is happening; or

(b) is threatened, impending or probable; or

(c) is being organised;

The FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.

Note: For interim orders, see section 420.

(2) The FWC may make the order:

(a) on its own initiative; or

(b) on application by either of the following:

(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;

(ii) an organisation of which a person referred to in subparagraph (i) is a member.

(3) In making the order, the FWC does not have to specify the particular industrial action.

(4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:

(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or

(b) which has not ended before the beginning of that stop period; or

(c) beyond that stop period;

The FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.

[39] It was uncontentious that a type of industrial action was being organised, and was threatened, impending and probable.

[40] Section 19 of the Act, defines ‘industrial action’ in the following terms:

(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 employee who attend for work;

(d) the lockout of employees from their employment by the employer of the employees.

…

(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….

[41] Under s 408 of the Act, industrial action is protected industrial action for a proposed enterprise agreement if it is employee claim action as defined by s 409. That action is defined as follows:

409 Employee claim action

Employee claim action

(1) Employee claim action for a proposed enterprise agreement is industrial action that:

(a) is organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement that are only about, or are reasonably believed to only be about, permitted matters; and

(b) is organised or engaged in, against an employer that will be covered by the agreement, by:

(i) a bargaining representative of an employee who will be covered by the agreement; or

(ii) an employee who is included in a group or groups of employees specified in a protected action ballot order for the industrial action; and

(c) meets the common requirements set out in Subdivision B; and

(d) meets the additional requirements set out in this section.

Protected action ballot is necessary

(2) The industrial action must be authorised by a protected action ballot (see Division 8 of this Part).

Unlawful terms

(3) The industrial action must not be in support of, or to advance, claims to include unlawful terms in the agreement.

Industrial action must not be part of pattern bargaining

(4) A bargaining representative of an employee who will be covered by the Agreement must not be engaging in pattern bargaining in relation to the agreement.

Industrial action must not relate to a demarcation dispute etc.

(5) The industrial action must not, if it is being organised or engaged in by a bargaining representative, relate to a significant extent to a demarcation dispute or contravene an FWA order that relates to a significant extent to a demarcation dispute.

Notice requirements after suspension order must be met

(6) If section 429 (which deals with employee claim action without a further Protected action ballot after a period of suspension) applies in relation to the industrial action, the notice requirements of section 430 must be met.

Officer of an employee organisation

(7) If an employee organisation is a bargaining representative of an employee who will be covered by the agreement, the reference to a bargaining representative of the employee in subparagraph (1)(b)(i) of this section includes a reference to an officer of the organisation.

[42] Section 409(2) prescribes that to be ‘employee claim action’ it must be industrial action authorised by a protected ballot. Section 459 outlines the circumstances in which industrial action is authorised by a protected action ballot. For present purposes of this application, s 459(1) is relevant:

(1) Industrial action by employees is authorised by a protected action ballot if:

(a) the action was the subject of the ballot; and

(b) at least 50% of the employees on the roll of voter s for the ballot voted in the ballot; and

(c) more than 50% of the valid votes were approving the action; and

(d) the action commences:

(i) during the 30-day period starting on the date of the declaration of the results of the ballot; or

(ii) if the FWC has extended that period under subsection (3) – during the extending period…

[43] This application relies in part, upon the notice requirements as established in relation to protected industrial action by the common requirements, and in particular, s 414 of the Act. Section 414 is seen as a critical part of the scheme established by Part 3-3 Division 2 of the Act for the taking of protected industrial action – that is, industrial action which enjoys the degree of legal immunity conferred by s 415. 61 Section 413 identifies a number of ‘common requirements’ which must be satisfied in order for industrial action to be protected. Compliance with s 414 is established by s 413(4) as one of those common requirements, and is therefore a precondition for industrial action to be protected under the Act.62

[44] Relevantly section 414 reads:

414 Notice requirements for industrial action

Notice requirements—employee claim action

(1) Before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

(2) The period of notice must be at least:

(a) 3 working days; or

(b) if a protected action ballot order for the employee claim action specifies a longer period of notice for the purposes of this paragraph—that period of notice.

Notice of employee claim action not to be given until ballot results declared

(3) A notice under subsection (1) must not be given until after the results of the protected action ballot for the employee claim action have been declared.

Notice requirements—employee response action

(4) Before a person engages in employee response action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

Notice requirements—employer response action

(5) Before an employer engages in employer response action for a proposed enterprise agreement, the employer must:

(a) give written notice of the action to each bargaining representative of an employee who will be covered by the agreement; and

(b) take all reasonable steps to notify the employees who will be covered by the agreement of the action.

Notice requirements—content

(6) A notice given under this section must specify the nature of the action and the day on which it will start

Consideration

Are there two forms or types of industrial action?

[45] Crown Perth contends there are two forms of industrial action at Point 14 of the notice (Notified Action). For sake of clarity, I have split the sentences, and propose to deal with the second sentence first.

First sentence – work stoppages

[A]n indefinite number of stoppages of the performance of work for a duration of 15 minutes not more than once per hour (for members employed in Table Games).

Second sentence – ‘closing procedure’

Employees will stop work by giving notice and securing tables as per the agreed process for the action on 5 November 2019.

[46] Crown Perth submitted that the second sentence of the Notified Action is a reference to the 5 November process. It advanced that before actually taking any particular 15-minute stoppage, the Table Games employees had to notify Crown Perth of their intention to follow the 5 November process. However, Crown Perth emphatically stated that it had not agreed to, and did not agree to, the 5 November process for the Notified Action. Further, it clarified that it had not notified any employee of any specific procedure to be followed for closing tables and did not intend on doing so. It continued that the 5 November process was a one off arrangement for a specific, well known stoppage of ascertainable duration.

[47] Crown Perth stated that it was apparent from the facts that a game cannot be closed and re-opened again in 15 minutes, 63 that some of the process would need to occur outside the 15-minute stoppage.

[48] Crown Perth put forward that it was in this sense that it could be seen that the Notified Action involved two separate forms of industrial action. In the First Sentence there was one type of industrial action – the 15-minute stoppages (which fell within the scope of ss 19(1)(a) and/or (b) of the Act). However, distinct from each 15-minute stoppage was the prior period (perhaps 10-15 minutes), in which the closing process would take place. Crown Perth viewed the closing process as involving ‘the performance of work in a manner different from that in which it is customarily performed’, or, at the very least, was ‘the adoption of a practice in relation to work’. Sans the stoppages, the Table Game employees would not be seeking to close down any tables without a specific request or authorisation from a Table Games Manager and would be simply continuing with the operation (Dealers) and supervision (Inspectors) of the games.

[49] The closing process then, said Crown Perth, was a ‘restriction or limitation on, or a delay in, the performance of work’. Whilst the Table Games employees perform the closing process, they are not performing the work they would otherwise be performing, as aforementioned. It was on this basis that Crown Perth submitted that the closing process was also a form of industrial action (s 19(1)(a)) which was not authorised by Crown Perth.

[50] Clearly, the UWU disagreed with Crown Perth’s submissions. The UWU stated that it was clear from its Notice that tables would not be ‘closed using proper closing procedures.’ Rather, tables would be secured for the duration of the 15-minute stoppages. The UWU submitted that there was nothing within the Notice that indicated that employees intended to leave the tables or their assigned areas.

[51] Furthermore, the UWU stated that in order for the Table Games employee to participate in work stoppages, it was necessary for them to stop working. Therefore, all that the Notice had done was inform Crown Perth that the tables will not be ‘closed using the proper closing procedure’ as tables were only able to be closed under instruction from a Table Games Manager, and to reassure Crown Perth that it would receive sufficient notice before stoppages such that tables would be secured, in order to ensure that Casino Licences of both Table Games employees and Crown Perth were not jeopardised.

[52] In this respect, as noted in introductory paragraphs, the UWU relied entirely upon No.24 in the protected action ballot, which provided for ‘[A]n unlimited number of stoppages of the performance of work between 5 minutes and up to 1 hour,’ to assert that point 14 of the Notice was action subject of the ballot.

[53] At No.15 of the protected action ballot, there was provision for ‘[I]ndustrial action in the form of closing gaming tables (by following proper closing procedures) for durations between 15 minutes and 1 hour.’ However, the UWU did not seek to rely on this.

[54] It is evident that the intended action speaks of giving notice and securing tables in accordance with the 5 November 2019 process. While the UWU refers to that process being an agreed process, clearly Crown Perth’s evidence is that the agreed process pertained only to the Melbourne Cup Day stoppage. There was no evidence to suggest otherwise. Further, while the UWU noted that the closing or securing of tables had not caused Crown Perth to remonstrate such that the action was unprotected on 5 November 2019, Counsel for Crown Perth, Mr Follett, observed that the ‘agreed process’ on 5 November 2019 was simply that ‘agreed.’ Therefore, it fell under the exemption at s 19(2)(a) which provides that action by employees that is authorised or agreed to by the employer does not constitute industrial action.

[55] Counsel for the UWU, Mr Sneddon, went to lengths to distinguish that the securing of tables was not the closing of tables. During the hearing, I had asked whether the two actions could be distinguished – and remain unconvinced that in this context the concepts can. Clearly the UWU have relied on ‘securing tables’ in accordance with the memorandum that was issued on 5 November 2019. That memorandum states:

… STOP WORK – TABLE GAMES

…

Table Games Employees

Crown Perth respects the right of Table Games staff who are members of United Voice stopping work between 10am and 2pm on Melbourne Cup Day as part of Protected Industrial Action. It is important to note that Crown has received the following legal advice:

•  Protected Industrial Action does not relieve you from complying with casino regulatory obligations; and

•  Crown is required by law to report any non-compliance with casino regulatory obligations to the Gaming and Wagering Commission.

In acting in your best interest, we recommend that all Table Games employees participating in the stoppage continue to adhere to all approved Rules and Procedures such as the requirements relating to the closing or leaving of gaming tables.

If you are participating in the 10am-2pm stoppage, within the restraints we are operating, below is the recommended course of action, to ensure you comply with your casino regulatory obligations:

Dealers

The following process will be followed with respect to dealers stopping work:

1. At 9:50am, the Dealer will notify the Inspector and patrons that they will be closing the table in ten minutes unless there is someone to replace them at 10:00am.

2. Prior to 10am, the Dealer will call the last three hands;

3. The Dealer will complete the final hand;

4. If there is no employee to replace them at 10:00am, then the Dealer will close the table immediately by locking up float and securing equipment.

Inspectors

The following process will be followed with respect to the Table Inspectors stopping work:

1. At 9:50am, the Inspector will notify the Table Games Manager that, unless they are replaced, all tables will need to be secured;

2. If the Inspector is not replaced at 10:00am, they will instruct all Dealers that they must secure tables for which the Inspector is responsible as detailed above;[sic]

If an employee fails to comply with its casino regulatory obligations, the Gaming and Wagering Commission may take disciplinary action against the employee including the issuing of an infringement….

[56] Mr Sneddon submitted that there was no suggestion that the Table Games employees, such as Dealers, would be leaving the table. Mr Sneddon stated that tables would be secured, and Dealers would then sit at the table. However, concerning the 5 November 2019 process, there is reference in the memorandum to the closing or leaving of gaming tables. While reference is made to Inspectors informing Table Games Managers of the need to secure tables, it is evident from Ms Cairns’ evidence 64 that the process adopted on 5 November 2019 appeared to involve the closing of tables.

[57] However, the UWU pressed its contention that there was to be no closing of tables only that of the securing of tables in accordance with the 5 November process and Dealers would not leave the tables. Having considered the evidence of Ms Cairns, and while appreciating the UWU’s point: that to stop work the table must be secured, all of which constitutes the one action – I am unable to reach that same conclusion. The securing, or as the case may be, the closing of tables, is distinguishable from a work stoppage. There are clearly steps required to be taken that thereafter allow a Dealer or Inspector to stop work. Those steps are distinct from the stoppage of work itself where no work is done. To explain further, the securing of tables, or the closing of tables, involves the performance of work in a manner different from that in which it is customarily performed. The process of 5 November 2019 outlines those preparatory steps to be taken – that is the general course of action, to move or proceed to the securing or closure of a table. The UWU submitted that engaging in such a process would lead to a more orderly and controlled cessation of work. While that may be the case, it does not negate the contention that such a process requires the performance of work in a different manner to how it would be customarily performed.

[58] Crown Perth’s submission that, absent the stoppages, the Table Games employees would not be seeking to close-down any tables without a specific request or authorisation from a Table Games manager and would be simply continuing with the operation or supervision of games – appears an accurate observation based upon the evidence led. As a result of taking the steps or general course of action to proceed to securing or closing the table, the Table Games employees are not performing the work they would otherwise be performing, hence resulting in a ‘restriction or limitation’ in the performance of work. I therefore find that the securing or closing of tables is a form of industrial action separate to that of the 15 minute work stoppages.

Is the securing or closing of tables authorised?

[59] The UWU has clearly articulated its argument that the securing of tables is not the closing of tables and, in any event, such a process was consensually agreed as embodied in the 5 November memorandum. 65

[60] Premised on the UWU’s contention that tables are not to be closed, but rather are to be secured, it is evident that this form of industrial action was not authorised by a protected action ballot as required by s 409(2). The Order does not refer at any part to the securing of tables.

[61] Further, while the UWU has submitted that the process of 5 November is agreed, the evidence does not support this contention. Given the evidence of Ms Cairns was not rebutted in this respect, the finding is open to be made that the securing of tables does not fall under the exemption in s 19(2)(a). It has not been authorised by Crown Perth.

[62] However, I have observed No.15 of the protected action ballot included provision for the closing of gaming tables by following proper closing procedures. Further, the background of this matter discloses why there was an amendment to this particular form of action regarding the compliance with proper procedures. Ms Cairns had expressed that the impetus for the amendment was to ensure the Table Games employees did not breach their Casino Licence by simply closing a table absent the prior permission from a Table Games Manager. Crown Perth submitted that without the authorisation from a Table Games Manager, tables could not be closed by Dealers or Inspectors. 66

[63] The UWU submitted that if the totality of the UWU’s arguments were to be accepted, Table Games employees are completely prevented from taking protected industrial action in the form of work stoppages because:

(a) they are prevented from closing tables using proper procedures as this involves obtaining authorisation asking a Table Games Manager;

(b) providing notice and securing tables to ensure that their personal Casino Employee Licence and the licence of their employer are protected constitutes a further form of industrial action; and

(c) stopping work by providing no notice and failing to secure gaming tables will jeopardise their Casino Employee Licence and their employer’s Casino Licence.

[64] The UWU asserted that the abovementioned situation was untenable and that its Table Games employees must be permitted to take industrial action deemed protected by the results of the Order. 67 In Davids Distribution Pty Ltd v National Union of Workers,68 Wilcox and Cooper JJ considered the approach of North J to the interpretation of the phrase ‘nature of the intended action’. They rejected his approach, concluding it placed a premium on legalism observing that the framers of notices would need to undertake a careful analysis of the definition of ‘industrial action’, in the way that North J had done, in order to identify the paragraph which best fits the contemplated activity.69 They continued that what must be borne in mind is that notice will often, perhaps ordinarily, be prepared by non-lawyers acting absent legal advice.70

[65] However, the circumstances before me are such that the UWU has pressed that Table Games employees will stop work by giving notice and securing tables. I have found that the giving of notice and the securing of tables is a separate form of industrial action to that of the work stoppage. The distinction is not derived from a legalistic interpretation of the notice – but rather from the evidence that has been led which demonstrates a delineation between the two actions. The actions do not form one and the same.

[66] It is evident that the Order 71 does not extend to the action of giving notice and securing tables, therefore rendering the action unprotected. If it were the case that the UWU were advancing an argument that the industrial action was in the form of closing game tables (by following proper closing procedures) the issue confronting the UWU remains that Crown Perth understands from the phrase ‘following proper closing procedures’ that this requires a Table Games Manager to authorise the table closures. Mr Sneddon observed that this situation appears most untenable when the Table Games employees are reliant on the Table Games Manager to authorise table closures. However, there has been no suggestion that this is not the ‘proper closing procedure’.

[67] By way of observation only, the history of this matter is that the parties agreed to the amendment of No.15 of the Order. 72 If at the time of agreeing to the amendment it was unclear to the UWU what was meant by ‘following the proper closing procedure,’ it was open to it to define that term to remove the ambiguity, or not agree to the amendment to No.15. Furthermore, it could have sought to have recasted No.15 as a type of intended industrial action that was tenable.

[68] It is apparent from the evidence and submissions made that Crown Perth’s Table Games Manager will not be authorising the closure of tables, and further, Crown Perth disputes that the 5 November process extends past the closure process which was agreed upon for the purpose of Melbourne Cup Day. In light of all of the evidence, I conclude that the securing of tables has not been authorised under s 409(2) and does not fall within the exemptions prescribed in s 19(2).

Is the Notice regarding the stoppages lacking specificity?

[69] The second issue to be decided concerns Crown Perth’s complaint about the adequacy of the Notice under s 414(6). It contended that the Notice did not ‘specify the nature of the action’. Section 414(6) requires that a notice must specify the nature of the action and the day on which it will start. If these requirements are not met, then a respondent has failed to comply with s 414(5) as the written notice does not contain the necessary content.

[70] For industrial action to be protected industrial action a respondent must comply with the common requirements in s 413(4) (Subdivision B). Section 413(4) sets out that the notice requirements in s 414 must have been met in relation to the industrial action. If those s 414 notice requirements are not met, then the common requirements for industrial action to be protected are not satisfied. 73 Therefore, the industrial action cannot constitute ‘employee response action’ as referred to in s 409 of the Act, and the industrial action is not protected industrial action under s 408 of the Act.

[71] Crown Perth observed that the law with respect to s 414(6) notices was summarised in EnergyAustralia Yallourn Pty Ltd v CFMEU 74 and later summarised in the passage from Pinnacle Career Development75:

These observations suggest that the adequacy of a notice for the purposes of s 414(6) must be examined in context. An assessment of adequacy must take account of all circumstances and examine expressions used in the context of whether the concepts embodied in the expressions are well recognised in workplace relations. The adequacy of the notice must take account of the practical applied circumstances of the workplace and whether the purpose of a notice is served by giving the addressee an understanding of what is contemplated and when it will occur so as to provide the recipient with an opportunity to consider his or her position and act to respond in a particular way.

[72] The UWU asserted that the Notice satisfied the purpose requirements of s 414(6) of the Act, observing that the UWU was not required to assist Crown Perth to meet any inconvenience or financial loss. It was the UWU’s contention that the Notice provided Crown Perth with enough information to take any action it saw fit in response. The UWU stated that this included weathering 15-minute stoppages by Table Games employees or, indeed, shutting down the gaming areas of the Casino. In support of its contentions it turned to the following passage of Barker J in the decision Alcoa of Australia Limited v Australian Workers’ Union 76 :

…The requirement [of section 414(6))] 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.

[73] The policy purpose of s 414 has been set out in a number of authoritative decisions of this Commission. The purpose being to give written notice of protected industrial action to provide the employer with an opportunity to take such steps as may be available in response to protect its interests. 77

[74] The Full Bench in Telstra Corporation Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 78 considered it appropriate to make observations about the construction of s 414. In doing so, it stated that whether the notice meets the requirement to specify the industrial action, it is necessary to have regard to the purpose of the notice requirement and the relevant circumstances, in particular the nature of the employer’s undertaking.79 The adequacy of the notice may depend on the size of the employer’s operations, the number of employees, number of locations, the time at which the action is to occur and the employees potentially taking the industrial action.80

[75] Ms Cairns’ evidence highlighted the indubitable fact that the Notice had effect over a 54 hour period in which 747 Table Games employee were rostered over 1,070 Dealer Shifts and 260 Inspector shifts. 81 The number of Table Games employees rostered over that 54 hour period at any one time varied from between 50 to 364 employees.

[76] The workplace in question is not confined to a discrete area. The Table Games employees are interspersed across three buildings that comprise the Casino consisting of: the Main Gaming Floor and the IGF. 82 One may recall that the IGF comprises of several separate gaming facilities including the Pearl Room, Diamond Room, Private Salons that are located over two buildings and three levels in Crown Towers and the Crown Metropol.83 Further, Crown Perth’s Casino operations function in circumstances of a regulatory environment where both the Table Games employees and Crown Perth are licensed. Further, those working as either Dealers or Inspectors require specific training and, arguably, experience in the Casino environment.

[77] The adequacy of the Notice is assessed against this context. It is a Notice that informs Crown Perth of the possibility of numerous timing permutations for the work stoppages, which may fall across shifts.

[78] The UWU advanced that the Notice provided Crown Perth with enough information to take any action as it saw fit, including the weathering of 15-minute stoppages by Table Games employees. Or, as the UWU put it, the shutting down of the gaming areas of the Casino. There was no evidence led by the UWU to challenge Ms Cairns’ evidence regarding the unpredictability of the pattern and impact of the work stoppages.

[79] Ms Cairns’ evidence traverses the difficulties of dealing with disruption on a minor or worst-case scenario. Any defensive actions are dictated by the potential of 747 employees engaging in indeterminate industrial action involving work restrictions and stoppages. Ms Cairns stated that if it were a worst-case scenario there would be no realistic or viable defensive measures available save closing-down the entire gaming are of the Casino for 54 hours.

[80] In the Flinders Operating Services Pty Ltd T/A Alinta Energy v Australian Municipal, Administrative, Clerical and Services Union (Flinders) 84 the issue was whether closing part of the employer’s operation was appropriate defensive action in circumstances where the need to take such defensive action arose because of the lack of specificity in the notices. The Deputy President considered the union’s suggestion that the employer adopt the worst-case scenario as contemplated by the notices.

[81] In response to that suggestion, the Deputy President commented that it was problematic for several reasons. Included in those reasons: to adopt a worst-case scenario was not consistent with the notices, and because the particulars of the industrial action were not apparent from the notices, the assumption gave rise to the likelihood of the employer over-compensating by responding to action not intended to be taken.

[82] Determining the adequacy of the notice in Flinders involved taking into account the circumstances of that workplace and whether the purpose of the notice was served by providing the employer with an understanding of what was contemplated. It could be argued that what was said by the Deputy President in Flinders finds no relevance here. Flinders after all involved potential industrial action at Alinta Energy, a supplier of power in the market; here the employer is a supplier of gaming.

[83] Yet the arresting point made, which is similarly relevant to current circumstances, was that the lack of specificity in the notices caused a compulsion to over-compensate when taking the defensive action. The purpose of the notice is clear. The Full Bench in Telstra observed that it was to give the recipient of the notice an opportunity to respond. Respond to what, one asks? It is a response to ‘the action’.

[84] In the case before me, I am informed that the practical applied circumstances are such that the intended action would involve (leaving aside the securing of tables taking approximately 10 minutes a time) 15-minute work stoppages occurring at unknown times throughout a 54 hour period in circumstances where 747 Table Games employees are rostered over 1,070 Dealer Shifts and 260 Inspector shifts. 85 Over that 54 hours period, Table Games employees at any one time vary in number between 50 to 364. Such employees are interspersed over varying locations as already detailed, and membership of the UWU is unknown. The environment is regulated, from a legislative standpoint, and clearly the health and safety of those Table Games employees, other staff and patrons is paramount.

[85] The purpose of the notice, in providing an opportunity to respond to the action, envisions that the employer will respond by making relevant preparations or considering a particular response. To be able to respond by making ‘relevant’ preparations the employer is to be placed in a position of understanding the action contemplated. This does not in turn mean that the employer is to be positioned to mitigate the total impact of the industrial action. However, the notice must be adequate, such that it specifies the industrial action to ensure that the employer affected by the industrial action, in circumstances where there has been a diminution in their usual legal rights, is at least able to take appropriate defensive action. 86

[86] It is difficult to comprehend that a notice would be adequate, meaning compliant with s 414(6), where the employer was not positioned to take ‘appropriate’ defensive action, but had to contemplate various scenarios and plan accordingly, including the worst-case scenario because of the lack of specificity in a notice. Crown Perth submits that the action detailed in the Notice does not enable it to take any defensive action, other than shut down the entire gaming areas of the Casino. 87 Confronted by circumstances where there is a necessity to predict a range of scenarios and thereafter plan for a worst-case demonstrates the impossibility of discerning the nature of the stoppages and manifests the very lack of specificity complained of.

[87] It therefore follows, for the reasons set out, that the Notice did not comply with the notice requirements in s 414(6) of the Act and that the action was therefore not protected industrial action.

DEPUTY PRESIDENT

Appearances:

K Sneddon for United Voice (as it then was)

M Follett of counsel for Burswood Resort (Management) Ltd

Hearing details:

2019.

Perth and Melbourne (by video):

November 8.

Printed by authority of the Commonwealth Government Printer

<PR714074>

 1   Witness Statement of Corinne Anne Cairns (Cairns Statement) at [34].

 2   PR712843

 3   Application at Appendix C.

 4   PR713959.

 5   [2019] FWC 7571.

 6   PR714075.

 7   Burswood Resort (Management) Limited v United Voice[2019] FWC 7571 at [10] – [12].

 8 Cairns Statement at [8].

 9   Cairns Statement at [8(a)].

 10   Cairns Statement at [8(a)].

 11 Cairns Statement at [14].

 12 Cairns Statement at [15].

 13 Cairns Statement at [15].

 14 Cairns Statement at [16].

 15 Cairns Statement at [18].

 16 Cairns Statement at [18].

 17 Cairns Statement at [18].

 18 Cairns Statement at [19].

 19 Cairns Statement at [19].

 20 Cairns Statement at [19].

 21 Cairns Statement at [20].

 22 Cairns Statement at [22].

 23 Cairns Statement at [23].

 24 Cairns Statement at [24].

 25 Cairns Statement at [25].

 26 Cairns Statement at [25].

 27 Cairns Statement at [26].

 28 Cairns Statement at [27].

 29 Cairns Statement at [27].

 30 Cairns Statement at [28].

 31 Cairns Statement at [29].

 32 Cairns Statement at [29].

 33 Cairns Statement at at [29].

 34 Cairns Statement at [5].

 35 Cairns Statement at [5].

 36   Cairns Statement at [43]-[44].

 37 Cairns Statement at [39].

 38 Cairns Statement at [39].

 39 Cairns Statement at [40].

 40 Cairns Statement at [40].

 41 Cairns Statement at [40].

 42 Cairns Statement at [41].

 43 Cairns Statement at [43].

 44 Cairns Statement at [44].

 45 Cairns Statement at [44].

 46 Cairns Statement at [46].

 47 Cairns Statement at [47].

 48 Cairns Statement at [47].

 49 Cairns Statement at [49].

 50 Cairns Statement at [49].

 51 Cairns Statement at [51].

 52 Cairns Statement at [51].

 53 Cairns Statement at [56].

 54 Cairns Statement at [56].

 55 Cairns Statement at [56].

 56 Cairns Statement at [56].

 57 Cairns Statement at [59].

 58 Cairns Statement at [58].

 59 Cairns Statement at [61].

 60 Cairns Statement at [61].

 61   Theiss Pty Ltd v Construction, Forestry Mining and Energy Union[2015] FWCFB 5530 at [65].

 62   Ibid.

 63   Cairns Statement at [43]-[44].

 64   Cairns Statement at [39] – [ 53] and Annexure CC-7.

 65   Cairns Statement Annexure CC-7.

 66   Cairns Statement at [40]-[43].

 67   PR713959.

 68 [1999] 165 ALR 550.

 69 Ibid at [86].

 70 Ibid at [86].

 71   PR713959.

 72 PR713959; Cairns Statement at [29].

 73   Fair Work Act 2009 (Cth) s 409(1)(c).

 74   [2013] FWCFB 3793.

 75 [2010] FCA 1350 at [58].

 76 [2010] FCA 278 at [33].

 77   Theiss Pty Ltd v Construction, Forestry Mining and Energy Union[2015] FWCFB 5530 at [75].

 78   [2009] FWAFB 1698

 79   Telstra Corporation Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2009] FWAFB 1698 at [12].

 80 Ibid at [12].

 81 Cairns Statement at [56].

 82 Cairns Statement at [8].

 83   Cairns Statement at [8(a)].

 84   [2011] FWA 4506.

 85 Cairns Statement at [56].

 86   David’s Distribution Pty Ltd v National Union of Workers [1999] 91 FCR 463 at [87].

 87 Cairns Statement at [61].