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

[2012] FWA 9818

[2012] FWA 9818

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.

Chubb Security Services Limited
v
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2012/6027)

COMMISSIONER BULL SYDNEY, 21 NOVEMBER 2012

Proposed industrial action; application for orders to cease proposed industrial action, whether notice to take protected action deficient; notice compliant with Act; application refused.

[1] This is an application by Chubb Security Services Limited (Chubb) for an order under s.418 of the Fair Work Act 2009 (the Act) stopping industrial action foreshadowed by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) through the service of a notice purportedly complying with s.414 of the Act.

[2] These are the written reasons for the decision given on transcript on Friday evening, 16 November 2012.

[3] On 9 August 2012, this Tribunal issued a Protected Action Ballot Order in respect of the proposed protected industrial action. The ballot was subsequently conducted and the proposed protected industrial action authorised in accordance with the Act and a declaration issued by the Australian Electoral Commission.

[4] Chubb was represented by Mr Richard Krajewski, the Employee Relations Manager. Mr Krajewski contends that the foreshadowed action will not be protected action because the relevant notice is deficient as it makes reference to an incorrect date.

[5] The CEPU was represented by Mr Rodney Burles, the State Secretary Tasmanian Branch, who appeared via telephone. Mr Burles submits that the notice provided is valid as the date of the start of the proposed protected industrial action is sufficiently clear.

Legislation

[6] Section 413 of the Act sets out the “Common requirements” for industrial action to be protected industrial action for a proposed enterprise agreement. At s.413(4) reference is made to the notice requirements in the following terms:

413 Common requirements that apply for industrial action to be protected industrial action

...

(4) The notice requirements set out in section 414 must have been met in relation to the industrial action.

[7] The notice requirements are expressed at s.414 including, relevantly for present purposes, the requirement at s.414(6):

414 Notice requirements for industrial 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.

(My underline)

[8] Thus, one of the requirements that must be satisfied before industrial action can be protected action is the service of a notice complying with s.414 of the Act.

[9] Section 414 also requires the notice to be given three workings days before the protected industrial action is taken and that the notice is to be in writing:

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.

[10] Section 418 of the Act mandates FWA, if it appears that proposed industrial action is not protected, to order that proposed industrial action not take place.

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.

[11] Section 420 of the Act requires the Tribunal, as far as practicable, to determine an application for an order under section 418 within two days after the application is made.

[12] On 13 November 2012, the CEPU notified Chubb in writing, of its intention to take protected industrial action, commencing on Monday 19 November 20012 and then detailing the nature of the industrial action. The notice then went on to state that:

“Further industrial action specified below shall start on Monday 20 November (sic) 2012 through to Friday 23 November 2012 inclusive.”

[13] The nature of the industrial action during this period was specified in the written notice comprising of 15 minute, one and two hour stoppages.

[14] It was contended that the action as notified by the CEPU was not protected because the notice of action purported to have been provided pursuant to s.414 of the Act was defective by referring to Monday 20 November 2012, when 20 November 2012 is a Tuesday.

Submissions

Chubb

[15] Mr Krajewski for Chubb stated that the lack of specificity in the notice as to which day employees will take action makes it difficult for Chubb to know in advance when employees will be taking protected industrial action. It was submitted that the reference to Monday 20 November 2012 was “erroneous, misleading and confusing”.

[16] It was put by Mr Krajewski, that the notice contained more than a simple error and that the:

“CEPU’s sloppiness should not be permitted nor accepted as a mere typographical error. Industrial action is a serious matter causing serious disruption to the Company’s operations. The consequential impact upon the Company’s relationship with its customers also cannot be underestimated”.

[17] The s.418 application also stated the reference to the stoppages occurring at all construction workgroups covering all worksites in Tasmania is capable of creating uncertainty as it implies worksites other than those where the Company is represented. The order sought was for all industrial action to cease for a period of three months.

CEPU

[18] Mr Burles on behalf of the CEPU acknowledged the typographical error and submitted that the failure to accurately specify the start day of the second tranche of protected industrial action as Tuesday, 20 November 2012, as opposed to stating, Monday 20 November 2012, was not a fatal flaw in the notice.

[19] Mr Burles stated that Chubb could be under no doubt as to when the intended industrial action was to start. It was submitted that Chubb had received the notice on Tuesday 13 November 2012, and never raised their alleged confusion until the s.418 application was filed with FWA on Friday 16 November 2012. There had been discussions on site since the notice was filed in regard to the proposed industrial action and Chubb and its employees were clear that the protected industrial action was to start on Monday 19 November 2012 and continue throughout the week until Friday 23 November 2012.

[20] Despite the inclusion in the notice stating that if Chubb required any further information regarding the notice they should contact Mr Burles as soon as possible, no clarification was sought by Chubb prior to the filing of the s.418 application with Fair Work Australia.

Determination

[21] The role to be played by notices issued pursuant to s.414 of the Act was considered in Telstra v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, 1 (Telstra) the Full Bench said:

“[12] Before turning to the notice in this case it is appropriate to make some observations about the construction of s.414. ... 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. For example, an employer may operate a sophisticated item of equipment that will be damaged if precipitately shutdown. If warned in advance of a ban that might affect the continued operation of that plant, the employer might choose a controlled shutdown during the period of the notice. More commonly, perhaps, an employer might use the notice time to communicate with suppliers and customers, and thereby reduce the consequences for them of the notified industrial action. Very often, the recipient of the notice will respond in a way that has a legal dimension. For example, a union might react to a notice by an employer of intent to lock out some employees by giving notice that all employees will strike indefinitely as from the commencement of the lockout. Similarly, an employer might respond to an employees' notice of bans by giving notice of a lockout of some or all employees.”

…

[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.”

[22] The matter to be determined in this application is whether, in the circumstances, the notice provides a level of specificity as required by the Act, such that Chubb have been given the opportunity to respond by making appropriate arrangements to lessen the impact of the protected industrial action by knowing on what day the industrial action will start.

[23] As the Full Bench observed in Telstra, the purpose of the notice is to give the employer an opportunity to respond by making arrangements to deal with labour, including making appropriate arrangements to deal with suppliers and contractors.

[24] There is no question that Chubb is aware of the action to be taken and who is to take it. The complaint of Chubb is that they do not know precisely when the second course of industrial action is to be taken.

[25] I am unable to accept Chubb’s argument that the notice provided by the CEPU has created confusion and is misleading.

[26] The notice was received by Chubb on Tuesday 13 November 2012, which stated that protected industrial action would commence on Monday 19 November 2012. Mr Krajewski accepted that this part of the notice was not confusing or misleading.

[27] The notice then went on to state that further industrial action will take place on Monday 20 November 2012 until Friday 23 November 2012.

[28] Having given notice that the industrial action was to commence on Monday 19 November 2012, the only sensible conclusion to draw from the further reference to Monday 20 November 2012, is that it should have read Tuesday 20 November 2012.

[29] Had the notice not already referred to industrial action being taken on Monday 19 November 2012, Chubb’s argument would have had more force in alleging confusion with the reference to Monday 20 November 2012.

[30] I have also had regard to Chubb not having taken any action to query the reference to Monday 20 November 2012, in the notice provided to them on Monday 13 November 2012 with the CEPU, prior to filing their s.418 application on Friday 16 November 2012.

[31] I am not persuaded having regard to the intent of the legislation which is to provide an employer with three clear working days notice of the impending protected industrial action, that the notice provided has not achieved this, despite the acknowledged typographical error by the author.

[32] The notice in my view can only be read where Monday 20 November 2012 appears, as being a typographical error which should read Tuesday 20 November 2012.

[33] In any event such an error could only justify an order preventing industrial action being taken on the day in question, not the three months sought by Chubb.

[34] Mr Krajewski did not press the argument that reference to “all worksites” implies worksites other than where Chubb has employees.

[35] After considering the submissions made and the documentation before me, I am satisfied that the jurisdictional preconditions in s.418(6) of the Act have been met in respect of notifying the employer of the day the protected industrial action is to start despite the acknowledged typographical error referring to Monday 20 November 2012, as opposed to Tuesday 20 November 2012.

[36] For the above reasons the application for a s.418 order is dismissed.

COMMISSIONER

Appearances:

R Krajewski for the Applicant.

R Burles for the Respondent.

Hearing details:

2012.
Sydney:
16 November 2012.

 1   [2009] FWAFB 1698, 15 December 2009 per Giudice J, Acton SDP and Whelan C.

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