Chubb Fire and Security Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

[2012] FWA 9076

[2012] FWA 9076

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.418—Industrial action

Chubb Fire and Security Pty Ltd
v
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2012/5551)

COMMISSIONER BISSETT MELBOURNE, 30 OCTOBER 2012

Application for an order that employee response action stop.

[1] On 5 October 2012 Chubb Fire & Security Pty Ltd (Chubb; the Applicant) made an application for an order to be issued pursuant to s.418 of the Fair Work Act 2009 (the Act) against the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). I dismissed the application in transcript following a hearing on 9 October 2012. Following are my reasons.

Legislation

[2] This application under s.418 relates to employee response action and the notice requirements for such action.

[3] Section 410 of the Act sets out the requirements for employee response action to be taken:

410 Employee response action

Employee response action

(1) Employee response action for a proposed enterprise agreement means industrial action that:

(a) is organised or engaged in as a response to industrial action by an employer; 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 will be covered by the agreement; and

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

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

Industrial action must not relate to a demarcation dispute etc.

(2) 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.

Officer of an employee organisation

(3) 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) includes a reference to an officer of the organisation.

[4] The common requirements in Subdivision B referred to in s.410(1)(c) include the notice requirements:

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.

[5] The application was made pursuant to s.418 of the Act:

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

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

(a) is happening; or

(b) is threatened, impending or probable; or

(c) is being organised;

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

Note: For interim orders, see section 420.

(2) FWA 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.

Background

[6] On 9 August 2012 a protected action ballot order was granted to the CEPU with respect to employees to be covered by the proposed enterprise agreement at Chubb. On 14 September 2012 the Australian Electoral Commission declared the result of the ballot.

[7] On 17 September 2012 the CEPU gave notice to Chubb that it intended to take protected industrial action on Friday 21 September 2012. The action so notified occurred.

[8] Chubb consequently gave notice that it intended to take employer response action pursuant to s.409 of the Act. On 22 September Chubb locked out those members of the CEPU who had participated in action on 21 September. The lockout extended to 25 September 2012 inclusively.

[9] On 27 September 2012 the CEPU gave notice that it intended to take employee response action (see s.410 and s.414(6) of the Act) against Chubb on 28 September 2012. That action occurred.

[10] On 4 October 2012 at 4.00 pm the CEPU gave further notice to Chubb that it intended to take employee response action on 5 October 2012. That action took place.

[11] On 5 October 2012 Chubb made an application for orders pursuant to s.418 of the Act. A hearing with respect to the application was held on 5 October 2012. At that hearing Mr Johnson for Chubb indicated that it was Chubb’s view that the CEPU had taken employee response action on 28 September 2012 and that the employee response action on 5 October 2012 was not protected.

Evidence and submissions

[12] The Chubb application, as presented, goes to the operation of s.410 of the Act and the number of times employees can participate in employee response action. On the basis of this characterisation of the matter (and hence whether employee response action taken after 28 September 2012 would be protected industrial action) the matter was held over and heard in full on 9 October 2012.

[13] Mr Rodney Burles, the Tasmanian State Secretary of the CEPU, provided a witness statement 1 in proceedings for the CEPU. Mr Johnston of Chubb did not cross-examine Mr Burles.

[14] Mr Kentish of the CEPU made extensive submissions and took me to a number of decided matters in support of his proposition that the action taken by the employees could be properly characterised as employee response action.

[15] In Australian and International Pilots Association v Fair Work Australia 2(AIPA)the Full Court of the Federal Court considered the application of s.411 of the Act which provides for employer response action. Section 411 is not relevantly different to the form of wording used in s.410 (employee response action) such that the decision in AIPA is equally applicable to a consideration of the operation of s.410.

[16] In AIPA Perram J found that

The terms of s 411(a) make clear that, for industrial action to be employer response action, it must be ‘organised or engaged in as a response to industrial action’ by an employee or a bargaining agent of an employee (which includes a union). The words ‘as a response’ require only that the lockout be seen as causally connected to employees’ industrial action. It does not have to be reasonable, proportionate or rational. 3

[17] Buchanan J observed that, in his view

the limitations in Division 2, and s 411 in particular, limit an employer to some form of causally connected response to employee industrial action. 4

[18] This, the CEPU submits, is authority for the proposition that employee response action only needs to be causally connected with the employer response action and that such response action does not have to be proportional, rational or reasonable. In the current matter the CEPU submits that the causality is made by the notices given by the CEPU which state that:

In taking the employee response action, the CEPU relies upon:

• the order made by Fair Work Australia in matter B2012/1452 on 9 August 2012 [2012] FWA 6717, and subsequent declaration of results for the protected action ballot by the Australian Electoral Commission; and



• the industrial action engaged in by Chubb, namely the lockout of part of its workforce 22-25 September 2-12 inclusive. 5

[19] In further support of its argument that there needs to be a causal connection between the industrial action and the response action, the CEPU referred me to Victorian Hospitals’ Industrial Association v Health Services Union 6 in which a Full Bench of the AIRC considered the interval between an alleged employer lockout and industrial action taken by employees in response to the lockout. The action was taken pursuant to s.445 of the Workplace Relations Act 1996 (WR Act). In considering if the employee action was in response to a lockout the Full Bench considered the lapse of time between the alleged lockout and the response action:

There was a significant interval between the VHIA’s letter of 29 November and the resumption of industrial action on 17 December. This interval suggests, although it is not conclusive, that there was no cause and effect relationship between the two things. Furthermore, by 17 December the employees had been working under their contracts for some time without any obstruction by the health services. Indeed there is no indication that the health services did not wish the employees to work in accordance with their contracts of employment. It is also significant that the HSU indicated in its letter of 17 December that the reason for the resumption of industrial action was the breakdown in negotiations. If the action was in response to the condition the health services imposed upon payment for attending the meeting on 5 December, one might have expected that fact to have been mentioned. There is no basis in the evidence for a conclusion that the industrial action which commenced on 17 December was in response to anything the health services did in relation to payment for the meeting on 5 December. 7

[20] The CEPU contends that the interval between the employee response action and the employer response action is a relevant consideration in determining if there is the requisite causal relationship between the response action taken and the action to which it responds. In this matter the first response action was taken on 28 September 2012, two days after the end of the employer lockout and the second response action was taken another five days later.

[21] In Cadbury Schweppes Pty Ltd v Liquor, Hospitality & Miscellaneous Workers’ Union 8(Cadbury Schweppes) Finkelstein J was considering an interlocutory application with respect to industrial action and an employer lockout at the Cadbury Schweppes plant at Tullamarine. The action and lockout were taken pursuant to the provisions of part VIB of the WR Act). Finkelstein J found that

In order for a lockout to be protected action the employer must comply with s 170MO(3)(a), which provides that a lockout will not be protected

“(a)...unless the employer has given the other negotiating party or each of the other negotiating parties:

(i) if the lock out is in response to, and take places after the start of, industrial action organised or engaged in by an organisation that is a negotiating party in respect of the proposed agreement - written notice of the intended lockout; or

(ii) in any other case - at least 3 working days’ written notice of the intended lockout;...” 9

[22] The respondent in Cadbury Schweppes argued that, on the proper construction of s.170MO(3), an employer could only respond to industrial action using s.170MO(3)(a)(i) once. After considering these submissions his Honour found that

Section 170ML identifies the actions to which the immunity granted by s 170MT will apply. For an employer, the relevant action is a lockout of its employees, if that lockout is for one of the two nominated reasons. Section 170ML at least contemplates that an employer may lock out its employees on more than one occasion during the course of a bargaining period. Indeed, this is no reason to suppose that there will only be a single lockout during the course of a bargaining period. Section 170MO(3) contains the requirements which an employer must satisfy before a lockout will be protected action. Provided the relevant requirements are satisfied, the lockout will have the benefit of the immunity given by s 170MT. Section 170MO does not impose a limit on the number of occasions an employer is entitled to lock out its employees. The only work of that section is to specify the type of notice that must be given so that action taken under s 170ML will be protected by s 170MT. 10

[23] The CEPU submits that, given the similarity in wording between s.170MO(3)(a)(i) of the WR Act and s.410 of the Act, the decision in Cadbury Schweppes is authority for the proposition that response action can be taken more than once.

[24] In submissions in reply Mr Johnson for Chubb submitted that the focus should be on the terms of s.414(6) of the Act which specifies the content required in any notice of industrial action, including employee response action.

[25] Chubb submits that s.414(6) requires that a notice of employee claim action must specify the nature of the action and the day on which the action will start. The union gave notice of the day on which the employee response action would start when it gave notice of the action to commence on 28 September 2012. The wording of s.414(6) of the Act precludes the CEPU then giving notice that employee claim action would start again on 5 October 2012. In issuing two separate notices of employee response action specifying two different start days, the second notice cannot be valid as the start day must be the day specified in the first notice. On this basis the employee response action taken on 5 October 2012 could not be protected and the CEPU could not take any further protected employee response action until such time as the employer took employer response action.

[26] At the conclusion of his submissions, upon a question from the Bench, Mr Johnson indicated that Chubb was, in fact, not seeking an order under s.418 of the Act that non-protected industrial action cease or not be organised, rather it sought an order that any future industrial action by the CEPU in respect of this matter be subject to three days’ notice in accordance with s.414(2)(a) of the Act.

[27] In reply Mr Kentish submitted that the order sought against the CEPU by Chubb in its application under s.418 of the Act was not available as there was no evidence that industrial action that was not protected was happening; threatened, pending or probable; or was being organised by the CEPU.

Consideration

[28] Section 418 of the Act is clear in its wording. It requires that FWA make an order that industrial action stop, not occur or not be organised for a period specified in the order. The condition precedent for the making of such an order is that FWA must reach the requisite satisfaction that industrial action that is not protected is happening; threatened, pending or probable; or is being organised.

[29] No evidence was adduced that could allow me to be satisfied that industrial action is happening; threatened, pending or probable; or is being organised that would not be protected. Mr Burles gave evidence in these proceedings but was not cross examined as to what industrial action, if any, is being organised. Further, and as might be relevant to the matter under consideration, no evidence was adduced that any further employee response action was happening, was planned or was being organised.

[30] As to the effect of s.414(6) of the Act, it has been put that this subsection acts to limit the number of times that employee response action can be notified. It was put that this subsection means that there can only be one start date for employee response action and that, once it is taken, it cannot be notified and taken a second time.

[31] Subsection 414(6) operates on all notices given pursuant to s.414 - that is, it operates with respect to a notice of employee claim action, employer response action or employee response action. The application of s.414(6) does not change with the type of action notified. The wording of s.414(6) confirms that the notice requirements apply to any notice given under this section.

[32] No submission was made that a notice of employee claim action can only be given once and that once the start date for the particular action is given and the particular action comes to an end no further notice of employee claim action of that type can be made. Yet this would be the result if I accepted the submission of the Applicant with respect to notices of employee response action. In any event such an approach to a determination of whether the correct notice has been given (and hence the requirements of s.414 are met) depends on the industrial action that has been authorised by the ballot of employees in the case of employee claim action and, in the case of employee response action, the causal relationship of that action to the employer response action that must precede it.

[33] In this respect whether or not industrial action is protected because it meets the notice requirements of the Act will depend on the terms of the notice and the industrial context. 11 Such context will include a consideration of those matters raised in the authorities referred to me by the CEPU and outlined above. I this respect I note that Chubb made no submission as to any of these matters that I should consider.

Conclusion

[34] Given the lack of evidence that would be necessary for me to be satisfied that industrial action is happening; threatened, pending or probable; or is being organised that would not be protected, I decline to issue the order sought by the Applicant. The application for an order under s.418 of the Act is dismissed.

[35] Given my decision that I cannot reach the requisite satisfaction on those matters in s.418(1) it is not necessary that I make a decision with respect to the notice given for the employee response action notified on 4 October 2012 and taken on 5 October 2012.

COMMISSIONER

Appearances:

A Kentish and R Burles of the CEPU.

S Johnston of Chubb Fire and Security Pty Ltd.

Hearing details:

2012.

Melbourne:

October 5, 9.

 1  Exhibit CEPU1.

 2 [2012] FCAFC 65.

 3 [2012] FCAFC 65, [155].

 4 [2012] FCAFC 65, [116].

 5   Exhibit CEPU1, paragraph 9(a) & 9(b) and attachments RB-6, RB-7, FB-8 and RB-9.

 6   [2008] AIRCFB 311.

 7   [2008] AIRCFB 311, [15].

 8 [2000] FCA 1793.

 9 [2000] FCA 1793, [6].

 10 [2000] FCA 1793, [29].

 11   See Telstra v CEPU (2009) 190 IR 342, at 347, [18].

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