Ceva Logistics (Australia) Pty Ltd v National Union of Workers

[2014] FWC 1948

[2014] FWC 1948

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action

CEVA Logistics (Australia) Pty Ltd
v
National Union of Workers
(C2014/3539)

COMMISSIONER GREGORY MELBOURNE, 24 MARCH 2014

Alleged industrial action at Ceva Logistics (Australia) Pty Ltd.

Introduction

[1] CEVA Logistics (Australia) Pty Ltd (CEVA) has made application for orders under s.418 of the Fair Work Act 2009 (Cth) against the National Union of Workers (NUW) and employees of the Company employed at warehouses at Somerton and Dandenong in Victoria and Carole Park in Queensland.

[2] CEVA seeks the orders in respect of two forms of action. Firstly, in response to bans on overtime which it submits have taken place without the requirements of s.414 being satisfied. Secondly, in response to proposed industrial action which is described in the notice given under s.414 as “A ban on paperwork of indefinite duration” to commence from Tuesday, 25 March 2014. An order is sought in this case because, in its submission, the nature of the intended industrial action is not specified in a way that makes clear to CEVA what that proposed action will involve.

[3] Ms Louise Houlihan of Cornwall Stodart was given leave to appear on behalf of CEVA under s.596(2)(a) and (b) on the basis that her involvement would enable the matter to be dealt with more effectively given the apparent complexity, and because it would unable CEVA to be represented more effectively.

The Issue to be Determined

[4] Section 418(1) of the Act provides that the Commission must make an order that industrial action stop if it appears that the action is happening, or is threatened, impending or probable, or is being organised by one or more employees, that is not, or would not to be, protected industrial action. The so-called “stop period” is to be for the period specified in the order.

[5] The Commission must determine any such application for an order, as far as practicable, within 2 days after the application is made. If it is unable to do so it must, within that period, make an interim order that the industrial action to which the application relates stop, not occur or not be organised, as the case may be, unless it is satisfied it would be contrary to the public interest to do so.

[6] Therefore, do the circumstances in this matter constitute action in the context of s.418 that warrants an order being made?

The Evidence and Submissions

[7] As indicated, CEVA submits there are two forms of action that warrant orders being made under s.418. The evidence and submissions in each case are dealt with under the following headings.

The “Un-notified” Overtime Bans

[8] It was common to both parties that notice under s.414 has not been given to CEVA about any overtime bans. However, CEVA submits that on 18 and 19 March various employees at the Somerton site refused to perform overtime when requested, and informed the Inventory Controller at the warehouse they had been told not to do so by a union official. Mr Tony Veljanovski is CEVA’s Distribution Centre Manager. He indicated during the preceding 5 weeks there had been only a limited requirement for overtime to be worked. However, early last week various IT problems had disabled some operating systems meaning there was a requirement for overtime to be worked to make up the shortfall. However, he was advised by the Inventory Controller at the Somerton site that the employees refused to work overtime because of a ban imposed at the direction of the NUW. Mr Veljanovski stated that as a consequence the additional hours had to be worked by two senior administrative employees. He also said CEVA generally does not have any problem getting employees to take on additional overtime work when it is available. He also said the bans were only being imposed during the second of the two shifts worked at the site, being the afternoon or second shift.

[9] CEVA submits the intention of the Act in regard to s.418 applications is for them to be dealt with expeditiously because of the potential impact of unprotected industrial action. In such circumstances it was not always possible to bring detailed evidence in support of an application and, in its submission, the Commission should be mindful of this restriction in dealing with the application.

[10] The NUW stated, firstly, the employees involved had not been served with the application, and no application for substituted service had been made. It submits it would therefore be inappropriate to make orders in circumstances where the employees had not been provided with the opportunity to respond. It also submits there was no evidence that the Commission could rely on to establish any evidence of Union involvement in the initiation of any overtime bans.

[11] The NUW also submits it has consulted with the officials with responsibility for the Somerton site and been instructed no overtime ban is in place at the site. It concluded that the evidence, in its submission, was insufficient to enable a finding to be made that industrial action was either happening, threatened, impending or probable and therefore it is not appropriate for the Commission to make the order sought.

The Ban on Paperwork

[12] A notice pursuant to section 414(6) was provided to CEVA by the NUW, dated 19 March. CEVA’s submissions indicated it was actually received at 5p.m. on Tuesday, 18 March, although Mr Veljanovski said he first became aware of it on the following day.

[13] The notice, firstly, indicates it is:

“... the intention of the NUW, its officers and employees, and members of the NUW employed by the Employer to take the following employee claim action:”. 1

[14] The nature of the intended industrial action is then indicated to be, “A ban on paperwork of indefinite duration.” 2 The notice concludes by indicating the industrial action will begin on “Tuesday, 25 March 2014.”3

[15] CEVA submits s.414(6) requires that a notice must specify the nature of the proposed action. It submits the description of the action contained in the notice in this case is inadequate, as it is not sufficient to put it in a position where it is able to anticipate what the action will involve, and then be able to make reasonable preparations in response to deal with its effects. In its submission the burden or onus is on the NUW to make clear what is intended, and reference to “a ban on paperwork” could range from relatively limited action with negligible effect, to action which could be “crippling” to its warehouse operations. 4

[16] Mr Veljanovski said he did not understand from the notice what the ban on paperwork involves, and this was a matter of serious concern which presented a number of risks. The lack of detail also meant CEVA was unable to properly prepare for the impending action and was “left guessing about what the action could be”. He stated that paperwork is involved in nearly every aspect of the warehouse operation and impacted on both its operations and the safety of its employees and customers. His witness statement provided numerous examples of what “paperwork” on a day-to-day basis involved.

[17] He also indicated the uncertainty about what “paperwork bans” the employees were planning to impose meant CEVA had been unable to undertake appropriate preparations, in response, to minimise the risks and impact. It was also possible each of the three different warehouse sites will be impacted in different ways.

[18] CEVA also submitted it had written to the NUW on 20 March expressing its concerns about the form of the notice and requesting it immediately clarify the extent to which the bans will operate. To date a response had not been received. However, CEVA did acknowledge, given the submissions of the NUW in the proceedings about what was intended by the ban, it now had a clearer understanding of that intention. However, the Act requires it be given 3 days notice of that intention, and the current timeframe would not enable that notice period to be complied with. In its submission it was still appropriate, therefore, that orders be made.

[19] CEVA also made reference to various decisions in support of its application. It referred, in particular, to the decision in “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers Union (AMWU) v UGL Resources Pty Ltd; Conneq Infrastructure Services (Australia) Pty Ltd, 5where the Full Bench held at paragraph [20]:

“If FWA is satisfied that one of these alternatives exists then “FWA must make an order that the industrial action stop, not occur or not be organised (as the case may be).” Putting aside issues around what may be described as incidental or ancillary ‘machinery’ orders, these are the only types of order that FWA has power to make. If FWA finds that unprotected industrial action is happening it has a duty to make an order that that action stop. If FWA finds that unprotected industrial action is threatened, impending or probable, it has a duty to make an order that that action not occur. If FWA finds that industrial action is being organised then it has a duty to make an order that the industrial action not be organised. However, FWA is not empowered to make an order that industrial action stop unless it is satisfied that industrial action is happening. FWA is not empowered to make an order that industrial action not occur unless it makes a finding that industrial action is threatened, impending or probable. FWA is not empowered to make an order that industrial action not be organised unless it makes a finding that industrial action is being organised.” 6

[20] CEVA submitted in response that the Commission was only required to find the existence of one of the three options referred to in s.418 to find it was then required to make an order.

[21] CEVA next referred to the decision in Telstra Corporation Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 7 and the finding of the Full Bench at paragraph 12 in the following terms:

“Before turning to the notice in this case it is appropriate to make some observations about the construction of s.414. The first point to note is that the obligations in ss.414(1) and (6) are not cast in terms of an intention to take industrial action but in more positive terms. This is a point of contrast with the language of s.170MO of the WR Act, exemplified by s.170MO(5) which we have set out above. The second point is that in considering 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. As to purpose, there is little doubt that the purpose of the notice requirement is to give the employer the opportunity to respond to the action by making relevant preparations. The response may involve making arrangements to deal with unavailability of labour, including making appropriate arrangements in relation to customers, suppliers and other contractors. Whether the notice is adequate may depend on the nature of the employer’s operations including their size, the number of employees, the number of locations, the time at which the action is to occur and the employees potentially taking the industrial action. The following passage from the reasons for decision in David’s Distribution Pty Ltd v National Union of Workers, a case concerned with the interpretation of s.170MO(5), is apposite:

‘[87] We think s 170MO(5) was designed to ensure that industrial disputants who are to become affected by protected action, in relation to which their usual legal rights are significantly diminished, are at least able to take appropriate defensive action...’” 8

[22] The NUW submits, in response, that the intent of the notice is clear. It, firstly, is clear about who is to engage in the employee claim action being the “... members of the NUW employed by the employer...”. Secondly, it is clear about the nature of the intended industrial action. It is to involve, “A ban on paperwork of indefinite duration”. It submits it is clear from this description it involves a ban on all paperwork in each of the three warehouses to continue for an indefinite period. Finally, the NUW submits it is clear from the notice when it is to commence.

[23] In its submission CEVA’s concerns about what is proposed are more about the effect of the action upon its operations, rather than being about how that action is described in the Notice, and any lack of clarity in that description.

[24] The NUW also made reference to the decision in David’s Distribution Pty Ltd v National Union of Workers 9, which dealt with provisions in the Workplace Relations Act which were similar, but not identical, to those contained in s.414(6) of the Fair Work Act. The NUW referred, in particular, to the conclusions of Wilcox and Cooper JJ in the following terms:

“[88] It will be apparent we think it necessary, and sufficient, for parties to describe the intended action in ordinary industrial English; for example, ‘an indefinite strike of all employees,’ ‘a lockout of all employees employed in the AB fabrication plant’, ‘a ban on overtime’, ‘a ban of the use of MN equipment’, ‘rolling stoppages throughout the mine’, ‘a ban on the servicing of delivery vehicles’.

[89] If we are correct in this approach, it follows that a notice that refers only to ‘bans and rolling stoppages’ without any indication of the nature of the bans or the location of the rolling stoppages, does not adequately disclose ‘the nature of the intended action’. It certainly does not convey to a reader an intention to mount a picket at which truck drivers will be hindered in entering the employer’s premises.” 10

[25] It also referred to the decision of Commissioner Bissett in EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union 11. It submits it sets out the relevant authorities in appropriate detail. That decision was subsequently upheld on appeal by a Full Bench of the Commission. The NUW referred, firstly, to the Commissioner’s findings in the following terms:

“[73] The purpose of the information contained in the notice, while designed to enable the employer to take defensive action, is not such that the employer should know all actions the union and its members may take for the duration of the notice.

[74]It is not the purpose of the notice to enable the employer to ‘meet the inconvenience, risk and financial loss’ as is put by Mr Forbes. If this were the purpose of the notice there would be little utility in the taking of industrial action. It cannot be ignored that industrial action is a tool used by workers to encourage the employer to meet their demands, normally for improved wages and conditions. All parties to bargaining will weigh up the costs and benefits of conceding some matters or being prepared to test conviction through industrial action.” 12

[26] The NUW also referred, in particular, to an extract from the Commissioner’s conclusions at paragraph [77] when she held:

“It should be noted that the authorities stand for the proposition that the notice under s.414 of the Act should specify the nature of the action. I find that the notice does in that it specifies a bans limiting output of the generators. One purpose of the notice is that the employer should have enough notice and information to enable it to take defensive measures. The Applicant has indicated that it is well aware of what will occur such that it can take defensive measures. That it cannot offset all of the inconvenience does not mean the nature of the action is not clear.” 13

[27] The NUW also referred to the decision of Commissioner Roe in Linfox Australia Pty Ltd v National Union of Workers 14. In that matter the Commission was considering a notice which stated, in part, that “a stoppage of work of 24 hour duration” on a certain day was proposed. The employer argued in response that because a specific starting time was not specified, it was not able to determine how many shifts would be impacted. Commissioner Roe indicated in response that the notice does not have to prevent overcompensation by an employer in response; nor does it mean the employer has to be in a position to be able to negate the effect of the industrial action. There could also be cases where a ban might be implemented in more than one way. He concluded by indicating:

“[20] This range of possibilities I do not consider to be unusual. In this case, the employer knows the site, knows the workers involved, knows the duration and knows the nature of the action. A level of uncertainty is not sufficient to be able to say that the nature of the action has not been specified. The level of uncertainty is not such that the employer cannot make reasonable arrangements to respond, including through the use of labour hire (about which we have heard some evidence) or other actions that the employer may wish to take.

[21] That is not to say that the industrial action and the level of uncertainty will not cause some inconvenience to the employer. That goes without saying, but I am not satisfied that the level of uncertainty is such that I could conclude that the nature of the industrial action has not been specified or that the employer cannot make reasonable arrangements to respond and to prepare. For those reasons, I am satisfied that the application for the Section 418 order should be dismissed.” 15

Consideration

[28] The parties have referred to various authorities in their submissions. I have had regard to each of those decisions. They include the recent decision of the Full Bench in EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union 16 which dealt with an appeal by the employer from an earlier decision of Commissioner Bissett. The Full Bench in that matter dealt in some detail with previous decisions of the Federal Court and this Commission that have considered the role and purpose of a notice of intention to take protected action “....and the adequacy of the content of such notices.”17 I am satisfied the decision of the Full Bench and the authorities it refers to are also relevant to the determination of this matter. Given the timeframes involved in dealing with the present application I do not go to the decision of the Full Bench in extensive detail but do refer, in summary, to relevant extracts from the authorities its cites, and relevant conclusions from its decision.

[29] The Full Bench first made reference to the decision in David’s Distribution and the finding of the Court when it held, in part:

“[84] Parliament did not indicate what degree of specificity it intended by the term ‘nature of the intended action.’ To interpret this term, on the one extreme, as requiring no more than an indication of industrial action, as argued by the NUW, would be significantly to devalue s.170MO(5); the notice would provide little information. To interpret it, on the other extreme, as requiring precise details of every future act or omission would be to impose on the giver of a notice an obligation almost impossible to fulfil. Industrial disputes are dynamic affairs. Decisions as to future steps often need to be made at short notice, sometimes in response to actions of the opposing party or other people, including governments, and changing circumstances. It would be a major, and unrealistic, constraint on industrial action to require a party to specify, three clear working days in advance, exactly what steps it would take.” 18

[30] The Full Bench continued to make reference to paragraphs [87] and [88] from the decision, including the reference for it to be sufficient “...for parties to describe the intended action in ordinary industrial English;” 19 which have already been referred to in the context of the Respondent’s submissions in this matter.

[31] The Full Bench continued to note David’s Distribution was considered and applied by a Full Bench of Fair Work Australia in Telstra Corporation, a decision again referred to previously in this matter. It included reference to the following extract from that decision:

“[18] In concluding it should be emphasised that whether a particular notice meets the requirements in s.414(6) will depend upon the terms of the notice and the industrial context. Every case is different and each notice must be looked at having regard to all of the relevant considerations.” 20

[32] The Full Bench next made reference to the Federal Court decision of Justice Merkel in Construction, Forestry, Mining and Energy Union v Yallourn Energy Pty Ltd 21, again dealing with issues to do with the adequacy of a notice given by the union to the employer. A critical issue in that matter was whether the notice was deficient because it referred only to the intended outcome to flow from the industrial action, rather than the steps to be taken to achieve that outcome. His Honour stated in response at paragraph [31]:

“...Mr Smith of Yallourn Energy had no difficulty in stating the action that is necessary to achieve the stated outcomes. Thus, upon receipt of the notice, Yallourn Energy would be well placed to take such defensive action as it may be advised to take. While the precise action to be taken is not stated, and therefore the defensive action may not be able to be precisely formulated, that limitation is inherent in the requirement that it is only necessary to notify the employer of the nature of the intended action, rather than the actual intended action. Yallourn Energy would also be well placed to determine whether the action actually taken in reliance upon the notice is or is not protected action when it is taken.” 22

[33] The Full Bench next referred to the decision of Justice Barker in Alcoa of Australia Limited v The Australian Workers’ Union 23. That matter was particularly concerned with the failure of a notice to specify the commencement time and duration of the proposed industrial action. His Honour relevantly stated:

“[34] Nonetheless, along with Goldberg J and Gilmour J, I accept that there may well be an argument, particularly in the circumstances of a particular case, that in specifying the “nature of the action”, having regard to a particular action, it may in some cases be necessary to say something about the commencement and/or the conclusion times of the industrial action. But it is not a requirement that, to my mind, immediately leaps to the eye from the text of s 414(6).

[35] I consider, therefore, there is force in a submission made on behalf of the union in this case that s 414(6) should be construed with an understanding that under the FW Act the respondent has the right to engage in protected industrial action. Generally, the reason for industrial action is to cause a degree of inconvenience and expense to the employer as a legitimate bargaining tool. The fact that the applicant may suffer a loss of profits and its operation and staff may be inconvenienced is no reason of itself to find that a notice should as specific as the applicant in this case would like it to be.” 24

[34] The Full Bench finally made reference to the decision of Justice Greenwood in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Pinnacle Career Development Pty Ltd 25. His Honour again approved the decision of the Full Bench in Telstra and found:

“[58] 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 the 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 or respond in a particular way (or as in this case, engage in the foreshadowed conduct set out in the notices “RF3” and “RF7” to which the challenged notices respond).” 26

[35] The Full Bench then continued to state its conclusions about the adequacy of the notice in the matter before it, based on the authorities referred to. It stated:

“[59] The next challenge is to what we will describe as the adequacy of the notice arguments. The Appellant submitted that the CFMEU notice failed to specify the nature of the industrial action to be taken with sufficient particularity such as to put it in a position to take appropriate defensive action.

[60] The approach to be taken to the degree of specificity required is informed by the comments made in David’s Distribution (and the subsequent decisions which have each adopted those comments). It is clear, in our opinion, the Commissioner well understood this. The Appellant seems to require a degree or level of particularity in the notice which has been expressly disapproved of. It is not necessary for the notice to contain precise details of when and how every future act or omission will or may occur. The specificity the Appellant seeks would constitute, in terms used in David’s Distribution, a major and unrealistic constraint on the protected industrial action that could be taken.

[61] The enquiry the Commissioner undertook as to the adequacy of the notice in this case was consistent with the approach in Telstra in that she considered the nature of the Appellant’s operations, the location where the action would occur and its timing and the type of employees who would participate. Indeed, as to those considerations, there is little room for disagreement.

[62] Her approach was also consistent with that endorsed in Pinnacle although we note that decision was not drawn to the Commissioner’s attention. The context and surrounding circumstances were considered by her. The terms used in the notice were also considered in what Pinnacle described as “the practical applied circumstances of the workplace”. In this respect she considered the evidence given on behalf of the Appellant and found that the terms of the notice were sufficient to give an understanding of what was to occur. It gave the Appellant adequate information to consider its position and take such defensive action it saw fit.” 27

[36] I now turn to consider the circumstances of the present matter in the light of the decision of the Full Bench and the authorities referred to. I deal, firstly, with the proposed ban on paperwork and the adequacy of the notice provided. There are three issues raised in the context of the Notice. I am satisfied two of those concerns can be dealt with in a simple and straightforward way. I am satisfied, firstly, that the notice is clear as to who is to be involved in the intended action being “...the NUW, its officers and employees, and members of the NUW employed by the Employer to take the following employee claim action.” CEVA does not, in its submissions, take serious issue with this matter, and in his answers in cross-examination, the Distribution Centre Manager, Mr Tony Veljanovski, makes clear he is in little doubt as to the employees at each of the three sites who are to be involved in the intended industrial action.

[37] I am also satisfied sufficient clarity exists about the intended commencement date of the action and its subsequent duration. The notice indicates it is to commence on Tuesday, 25 March 2014 and to continue for an “indefinite duration.” Doubtless CEVA would prefer a precise date as to when the action will conclude. However, the description of action of “indefinite duration” is not uncommon in such notices. The term is also used in the examples provided by the Federal Court in David’s Distribution at paragraph 88 in terms of what might constitute appropriate notice of intended action. I am not satisfied that it can be concluded from the use of the term “indefinite duration” that the level of uncertainty is such that the employer cannot put in place whatever arrangements it believes are appropriate in response for the duration of that period. Clearly, this will likely involve significant disruption and inconvenience at the very least. But, as the authorities referred to confirm this is an intended and inevitable outcome of the legislative framework established in this context.

[38] CEVA finally takes issue with the description of the nature of the intended industrial action being “A ban on paperwork of indefinite duration.” In essence it submits it is unclear what is meant because a ban on “paperwork” could, on the one hand, involve limited action in respect of a small part of the “paperwork” involved in CEVA’s operations at one or all of the three warehouse sites. This would potentially be of little consequence. However, at the other end of the spectrum it could have significant ramifications if the ban involved all paperwork. As Mr Veljanovski’s witness statement indicates at paragraph 13, “Paperwork is involved in nearly every aspect of CEVA’s operations,” 28 and CEVA submits a complete ban could be “crippling” to its operations. The evidence of Mr Veljanovski also indicated it was likely each of the three sites would be impacted in different ways.

[39] The NUW submits in response that the intention is clear. It submits CEVA is wrong to suggest that the nature of the intended action can be interpreted and read variously as meaning a ban on either some or all paperwork. In its submission the intention should not be qualified in this way, but instead be read based on the plain meaning of the words.

[40] I can readily understand that CEVA wants clarification about what the nature of the intended action is and, in particular, whether it should be read as meaning a partial ban or a ban on all paperwork. I can also understand that this is a critical issue for it, given the involvement of so-called “paperwork” functions in the various operations of the business across the three warehouse sites. These are set out in some detail in the witness statement of Mr Veljanovski.

[41] However, I am not satisfied that this is sufficient to warrant the making of the orders sought, or indeed any orders in other terms. The decision of the Federal Court in David’s Distribution makes reference to the intended action being described in “ordinary industrial English.” It continues to give examples of what this might involve including “an indefinite strike of all employees,” a “ban on overtime,” and a “ban on the servicing of delivery vehicles.” In terms of these examples I am satisfied the reference to a “ban on overtime” is clear in terms of its intent when considered in ordinary industrial English. It is understood to mean a ban on all overtime at the relevant location(s). I am not satisfied that reference to “a ban on paperwork” is to be read any differently by requiring additional clarification in the form of references to, for example, some, partial or all paperwork.

[42] In coming to this decision I have had regard to the fact the intended action would occur at each of the three different warehouse locations CEVA operates, being two in Victoria and one in Queensland. I also understand its desire to be in a position to understand, with as much clarity as possible, what that action at each site will actually involve so it is best able to respond. I also understand the proposed ban may have a significant effect on the business operations. The witness statement of Mr Veljanovski confirms as much. However, I am also satisfied that in considering all of the relevant circumstances in any particular case this is only one of the factors I am required to have regard to. As the decision in Alcoa confirms the fact an applicant might suffer loss and be inconvenienced is not reason itself to require a notice to provide as much detail as the applicant requires. I am instead satisfied the intent of the notice is clear, based on the relevant authorities, in the same way that a “ban on overtime” can be understood.

[43] As indicated, I can understand CEVA’s concerns about what this ban involves, however, its concerns are perhaps more to do with the impact of the ban, rather than seeking further clarity about what is actually involved. As the evidence of Mr Veljanovski indicates “paperwork” is an integral part of both the warehouse operations and the safety procedures in place. However, his evidence also indicates that he has a reasonably clear understanding about what these functions involve, given the 14 different examples in his witness statement of paperwork functions associated with the warehouse operation.

[44] It is also noted it does not appear that there is any issue about the proposed ban being within the actions authorised by the protected action ballot conducted pursuant to the order issued by Commissioner Roe on 6 February 2014. It included amongst the questions to be put to voters in the ballot, “An unlimited number of bans on paperwork of indefinite duration?” 29 However, I am not suggesting or, indeed, forming a concluded view that this means CEVA can be said to have understood the nature of the current intended industrial action by not taking issue with the proposed terms of the question in the ballot order at that time. It also does not mean CEVA has no further recourse in response to what is proposed. For example, the evidence of Mr Veljanovski is that the ban could have significant safety implications. In those circumstances it may be appropriate for an application to be made pursuant to s.424 of the Act. Again, I am not indicating any concluded view about the likely merit of any such application but simply instead indicating it is a potential possible option in all the circumstances in response to the action proposed by the Union.

[45] I have also had regard to the submissions from CEVA indicating the course of the proceedings have now given it clearer indication about what the intended action involves. However, it submits it should now have the three day notice from that point of that intention, as s.414(2) intends. I am not persuaded by this submission. I have already concluded that the notice at issue in this matter meets the requirements of s.414(6). It follows from that conclusion that the notice should apply in accordance with its stated terms. I am not satisfied that CEVA’s submissions on this point provide any basis for orders to issue.

[46] After the proceedings concluded I was contacted by the applicant’s solicitor with a request that they be able to provide further written submissions about what the description “paperwork” actually involves in a modern warehouse operation. I indicated I would be prepared to consider receiving any such submissions if the respondent did not object, and was also provided with the opportunity to respond. The respondent subsequently advised it did not object. After receipt of the applicant’s submissions, the respondent also indicated it did not wish to provide any additional submissions in response and was content to rely upon the submissions already put in the proceedings.

[47] The additional submissions indicate concern about the lack of understanding about where “paperwork” ends and technology starts, particularly in the context of keyboard work which generates paperwork, and the use of RF scanners. Reliance is again placed on the decision in Telstra in this context to submit the action should be described in a way that is sufficient to put the employer in a position to make reasonable preparations in response. I am not satisfied that these additional submissions require me to reconsider the decision I have come to, given the authorities I have referred to. David’s Distribution which has been followed and adopted in subsequent decisions requires that the intended action be described in ordinary industrial English. The terms of the notice in this matter are sufficient to give an understanding of what is to occur in the light of that decision. I am also satisfied the degree of specification now being sought is not required to be provided because it seeks, in the same way as the Full Bench found on appeal in EnergyAustralia Yallourn “a degree or level of particularity in the notice which has been expressly disapproved of”, and further “it is not necessary for the notice to contain precise details of when and how every future act or omission will or may occur.” 30 Based on these authorities I am again not satisfied the notice is deficient in the way the applicant contends. I also note again this matter was not taken up when the question “an unlimited number of bans of paperwork of indefinite duration?” was put as part of the protected action ballot.

[48] In a similar manner to Commissioner Roe in the Linfox matter I am not satisfied that the level of uncertainty is such that the nature of the action can be said to have not been specified, or that the employer cannot make reasonable arrangements in response.

[49] The applicant also seeks to support its submissions about the need for greater certainty so as to be able to comply with the provisions of s.471 of the Act. Given the authorities I have referred to I am not satisfied this submission provides grounds to support or justify the degree of additional specification it seeks.

[50] CEVA also submits that orders are warranted because of the existence of overtime bans in place on the afternoon or second shift at the Somerton site. It is not contested that no notice under s.414 has been given to CEVA about any such ban. However, the NUW submits the evidence does not substantiate the existence of any such ban. It also submits its instructions are, following contact with relevant officials, that no such ban is in place.

[51] The evidence of Mr Veljanovski is that he was told by the Inventory Controller that on two occasions when overtime was offered to the employees last week those offers were rejected because there is a ban on overtime in place. Mr Veljanovski indicated in his experience it was most unusual for offers of overtime to be rejected by employees, although he also indicated there had not been any requirement for overtime to be worked in the preceding five weeks.

[52] I am not satisfied in all the circumstances that the evidence available establishes at this point that an overtime ban is in place constituting unprotected industrial action. It is accepted that the timeframe involved in making applications under s.418 means the ability to prepare witness evidence and submissions is limited. However, the Inventory Controller was not called to provide witness evidence. Nor does it appear CEVA sought to clarify this situation, one way or the other, with the NUW or with relevant delegates at the Somerton site. Again, this is not to imply any criticism of CEVA, but is more a reflection of the limited time available to bring these applications to the Commission. The NUW has also made submissions in the proceedings indicating its instructions are that no such bans have been or are in place. I am prepared to accept that these submissions have been made in good faith and the Commission would be entitled to be disappointed if CEVA again makes requests for overtime to be worked, only to find that bans are in fact in place.

[53] It is also accepted that CEVA might only become aware of the existence of a ban on overtime at the time when there is a requirement for overtime to be worked, and a request is then made to employees. However, in all the circumstances I am not satisfied there is sufficient evidence that enables a finding to be made that there is an overtime ban in place at this time at the Somerton site that has been initiated without appropriate notice being given pursuant to s.414(6) that would justify orders being made pursuant to s.418.

[54] In conclusion, having considered the submissions and evidence of the parties, and the authorities referred to, I am not satisfied for the reasons indicated in this decision orders pursuant to s.418 should issue. The application is dismissed.

COMMISSIONER

Appearances:

L Houlihan of Cornwall Stodart on behalf of the Company.

D Mujkic on behalf of the National Union of Workers.

Hearing details:

2014.

Melbourne:

21 March.

Final written submissions:

Submissions received from the Company on 24 March 2014.

 1   Exhibit H2

 2   Ibid

 3   Ibid

 4   Form F14 dated 20 March 2014 at 4.10

 5   [2011] FWAFB 4777

 6   Ibid at [20]

 7   [2009] FWAFB 1698

 8   Ibid at [12]

 9 [1999] FCA 1108

 10   Ibid at [88]-[89]

 11   [2013] FWC 1202

 12   Ibid at [73]-[74]

 13   Ibid at [77]

 14   [2014] FWC 460

 15   Ibid at [20]-[21]

 16   [2013] FWCFB 3793

 17   Ibid at [36]

 18 [1999] FCA 1108 at [84]

 19   Ibid at [88]

 20   [2009] FWAFB 1698 at [18]

 21 [2000] FCA 1070

 22   Ibid at [31]

 23 [2010] FCA 278

 24   Ibid at [34]-[35]

 25 [2010] FCA 1350

 26   Ibid at [58]

 27   [2013] FWCFB 3793 at [59]-[62]

 28   Exhibit H1 at para 13

 29   PR547565 at page 2

 30   [2013] FWCFB 3793 at [59]

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