Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Postal Corporation
[2010] FMCA 688
•10 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING & ALLIED SERVICES UNION OF AUSTRALIA v AUSTRALIAN POSTAL CORPORATION | [2010] FMCA 688 |
| INDUSTRIAL LAW – Whether Union or employer breached civil remedy provisions of the Fair Work Act 2009 (Cth) – whether action of employees constituted industrial action – where employees directed to perform work in a particular manner on certain shifts but continued to work as they had done in the past – part of wages of employees withheld – whether employer obliged under s.474 of the Fair Work Act not to make payment to employees – whether employer breached terms of transitional instruments – whether employee organisation asked employer to make a payment to an employee that would be a contravention of s.474 – whether employee organisation knowingly or recklessly made a misrepresentation about the employer’s obligation to engage in industrial action. |
| Building and Construction Industry Improvement Act2005 (Cth), s.36 Evidence Act 1995 (Cth), s.140 Fair Work Act 2009 (Cth), ss.19, 347, 348, 349, 408, 418, 474, 475, 529, 539, 545, 546, 547 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), Schedule 16 Workplace Relations Act 1966 (Cth), ss.4, 127, 187AA, 420, 496, 507 |
| Allison and Others v Tenix Defence Pty Limited (2002) 112 IR 171 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Amcor Packaging (Australia) Pty Ltd, AIRC, Richards C, Brisbane, 12 August 2004, PR950592 Bovis Lend Lease Pty Ltd v Construction, Forestry, Mining and Energy Union and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2008] AIRC 693 |
| Applicant: | COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA |
| Respondent: | AUSTRALIAN POSTAL CORPORATION |
| File Number: | SYG2391 of 2009 |
| Judgment of: | Barnes FM |
| Hearing dates: | 10, 11, 12 and 26 March & 11 May 2010 |
| Last date of submissions: | 26 May 2010 |
| Delivered at: | Sydney |
| Delivered on: | 10 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms F Hancock |
| Solicitors for the Applicant: | Pendlebury Workplace Law |
| Counsel for the Respondent: | Mr R Warren |
| Solicitors for the Respondent: | Blake Dawson |
ORDERS
The application filed on 1 October 2009 is dismissed.
The application for further orders made by the respondent in the response filed on 5 November 2009 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2391 of 2009
| COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA |
Applicant
And
| AUSTRALIAN POSTAL CORPORATION |
Respondent
REASONS FOR JUDGMENT
These proceedings
On 1 October 2009 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) commenced proceedings in this court under the Fair Work Act 2009 (Cth) (the FWA) alleging that the respondent, Australian Postal Corporation (Australia Post), failed to comply with certain terms of an Award and an Enterprise Agreement that are transitional instruments for the purpose of the FWA. The CEPU seeks under ss.545 and 547 of the FWA orders for payment of unpaid wages of $449.41 and $225.04 respectively, to Mr Dharmpal Singh and Ms Rita Sheriff (two employees of Australia Post) together with interest. In addition it seeks the imposition of penalties on Australia Post under s.546(1) of the FWA for contraventions of cll.16.1, 16.2 and 15.1.2 of the Award and cll.3, 5 and 8.16 of the Enterprise Agreement which are said to be contraventions of civil remedy provisions (see Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments Act) 2009 (Cth) and s.539(2) of the FWA).
By its response filed on 5 November 2009 Australia Post opposed all of the orders sought by the CEPU and sought that pecuniary penalties be imposed on the CEPU for contraventions of ss.348, 349(1) and 475(2) of the FWA. The claim in relation to s.348 of the FWA was not pressed.
The parties did not seek to proceed by way of pleadings or points of claim and points of defence. The alleged contraventions are identified in the application and in the response. At no time was leave sought to file any amended application or response.
It was agreed that should any contravention of a civil remedy provision be established the issue of penalty would be dealt with at a subsequent hearing.
The CEPU relied on an affidavit sworn by Rita Sheriff, a mail officer, and two affidavits of Dharmpal Singh, a mail officer who at all relevant times was also a Health and Safety Representative (HSR) and Authorised Union Representative (AUR) for the CEPU as well as three affidavits of Jim Metcher, the Secretary of the New South Wales Branch of the CEPU.
Australia Post relied on affidavits of a number of employees, in particular Robert Gary Sadler, Manager, Letters and Parcels Processing Department, Wayne Barney, Facility Operations Manager, David Barrett, Shift Production Manager, Geoff Dineen, Shift Production Manager, Thai Hong, Shift Production Manager, Margaret Wilkins, Shift Leader, Clyde Crawford, Senior Occupational Health and Safety Adviser and Cheryl Ferrington, Employee Relations Consultant.
Each of the witnesses (apart from Ms Sheriff) was cross-examined. Insofar as there were differences in the witnesses’ accounts of relevant events, these are discussed below where relevant.
Background
The claims of both parties arose out of events that occurred primarily in August 2009 in the Large Letters area at the Australia Post mail sorting facility at Strathfield in New South Wales known as the Sydney West Letters Facility (SWLF). “Large Letters” include envelopes and non-standard sized material larger than a standard envelope weighing up to 500 grams.
Mr Singh and Ms Sheriff are employees of Australia Post who at all relevant times were employed at SWLF on the night shift, which is one of three shifts in the Large Letters area at SWLF. Mr Singh is both an HSR and an AUR for the CEPU.
Responsibility for various tasks in this area of the SWLF are rotated among staff on each shift. One of the machines used to process and sort mail in the Large Letters area at SWLF is the Spectrum 10 machine (the SP10 machine). The operation of this machine was detailed in the affidavits of Mr Singh and Mr Barrett (a Shift Production Manager at SWLF). There are some minor differences in these explanations, but in essence over-sized mail items are sorted and stacked into trays in the SP10 machine according to their postcode and the trays are then cleared by employees.
Relevantly, employees enter the postcodes for items of mail into the SP10 machine, the mail is then fed into trays circulating within the machine which drop each item of mail into the appropriate postcode stack where it falls into a collection tray. When a stacker tray is full, the machine ceases to deposit mail into that tray. Sensors above each tray detect when the tray is “full” according to the height (rather than the weight) of the mail in each tray. Mr Barrett’s evidence is that the maximum weight of a fully packed tray is 16 kilograms, but that in practice the average weight of each tray (due to the size of the items of mail) is around 5 – 6 kilograms. A light comes on above a full tray. According to Mr Barrett, if, as often occurs, the sensor is triggered before the tray is full (because mail falls upright into the tray), the employee must shake the tray to settle the mail and reset the sensor. It is the task of an employee to remove the full tray and place it on a “nearby” conveyor belt and replace it with an empty one. Mr Singh explained that the conveyor belt transports trays to another machine as part of the mail delivery system.
The SP10 machine has 192 “stackers” or outlets, each representing a different postcode or group of postcodes. The “short stacker side” of the machine (which is relevant in these proceedings), contains stackers “1 to 49”. According to Mr Barrett, given the lesser number of stackers on the short stacker side (compared to the “long stacker side” which contains stackers 54 to 171), fewer employees are needed to operate that side of the machine.
Mr Barrett explained that as the technology stood when SWLF was opened in August 1999, there was a bias towards processing large letters on the SP10 machine rather than on other machines and for various reasons the SP10 machine operated at a high capacity. Hence initially (at least on the night shift), two employees worked on the short stacker side of the SP10 machine to remove full trays and replace them with empty trays.
However, with changes in technology and a decline in mail volume, there was a significant decrease in the volume of mail processed on the SP10 machine which, according to Mr Barrett, meant that fewer employees were now required to operate the SP10 machine.
According to Mr Dineen (a Shift Production Manager who is and was at all relevant times responsible for management and coordination of activities to ensure standardisation across shifts in the Large Letters area of the SWLF), the morning shift in the Large Letters area of SWLF only ever used one employee on the short stacker side of the SP10 machine. The afternoon shift moved to using only one employee on the short stacker side in June 2006, without objection or incident. As at August 2008 the night shift was operating with one employee on the short stacker on Sundays. Otherwise two employees operated the short stacker side of the SP10 machine on the night shift prior to August 2009.
The clearing process on the short stacker side of the SP10 machine is performed by staff for a period of approximately 30 minutes at a time according to a roster. Staff are then rotated to other tasks in the facility.
Various witnesses for Australia Post detailed attempts to introduce changes to the Large Letters area in SWLF from 2008 on, in particular by reducing the staffing on the short stacker side of the SP10 machine from two people to one person on the night shift. I accept this evidence. Insofar as the evidence for the CEPU was to the contrary, I note first that on his own evidence the involvement of Mr Metcher, Branch Secretary of the CEPU (NSW), with matters at SWLF was limited prior to 26 August 2009, as Mr Gil Enzon was the relevant Union Branch Officer responsible for matters at SWLF. Mr Enzon did not give evidence in these proceedings.
More generally, Mr Singh’s evidence differed in some respects from the evidence of several of the respondent’s witnesses. Where there is a conflict in the evidence of Mr Singh and that of the respondent’s witnesses I prefer that of the respondent’s witnesses, each of whom gave clear consistent evidence, corroborated in vital respects by other witnesses. Mr Singh’s evidence was not internally consistent. His answers in cross-examination were not always responsive and were at times argumentative. In cross-examination he took issue with aspects of the evidence not previously disputed in his affidavits and he departed from aspects of his own affidavit evidence.
In particular, there was a conflict between the evidence of Mr Singh and that of other witnesses about what occurred after an Energy Expenditure Assessment (EEA) was conducted. At the request of Mr Dineen, Mr Crawford (who is a Senior Occupational Health and Safety Adviser with Australia Post) had conducted an EEA on 20 May 2009 in relation to the energy expenditure by one person working on the short stacker side of the SP10 machine.
The background to the EEA was that some time in or after mid to late 2006 Mr Dineen had identified that a reduction in one staff member on the short stacker side of the SP10 machine was a potential change to improve efficiency. From November 2007 to April 2008 Australia Post engaged in a series of consultation meetings and discussions with employees (including Mr Singh as AUR and HSR) and with the CEPU regarding proposed changes to the Large Letters area as detailed further below in relation to the alleged contravention by Australia Post of the Enterprise Agreement. Mr Singh advised that he was opposed to any changes being made to the Large Letters area.
Ms Wilkins, an Australia Post Shift Leader, corroborated Mr Dineen’s evidence, including in relation to the proposal to reduce two employees to one on the short stacker side of the SP10 during the night shift. She explained that the employees worked in pairs. This meant that under the proposed change, during each rotation one of each pair would be required to work on another task in the Large Letters area instead of both working on the short stacker side of the SP10 machine as had previously occurred on the night shift. According to Mr Dineen, the change to the night shift would not result in a reduction of employees working on the shift or in any loss of employment or employee income.
Ms Wilkins was briefed on several proposed changes in January 2008 and briefings were held with employees (including Mr Singh). A working party designed a new roster incorporating the SP10 reduction in staffing that was distributed in April 2008. Staff petitioned Mr Dineen. Further meetings followed, but at that stage proposed changes were put on hold.
I accept Mr Dineen’s evidence that during this time he had discussions and consultation with Mr Enzon of the CEPU and engaged in written correspondence with the CEPU about consultation and proposed changes.
Mr Dineen explained that it was decided to proceed with what he saw as the least controversial change (the reduction in staffing on the short stacker side of the SP10 machine) in August 2008. The morning and afternoon shifts were already operating on this basis. Mr Dineen advised the CEPU of Australia Post’s intention to run a trial of new rosters to that effect. In February 2009 Mr Dineen met with Mr Singh to discuss the proposal and in March 2009 had a further meeting, including other staff. In response to Mr Singh’s expressed concern that the change would mean too much work for one person on the short stacker side of the SP10 machine, Mr Dineen arranged an EEA.
In particular, in response to occupational health and safety concerns expressed by Mr Singh at the meeting with Mr Dineen in March 2009, on 24 April 2009 Mr Dineen asked the Australia Post OH&S Department to arrange an EEA in relation to the proposal to operate the short stacker side of the SP10 machine with one employee during the night shift. Mr Dineen expressed a preference for the EEA to be conducted at 8 pm so that “we can involve Singh in the process to a degree”. In his affidavit Mr Dineen explained that it was Australia Post’s practice to invite the relevant HSR to attend such risk assessments.
On 19 May 2009 Mr Dineen was advised by the OH&S Department that the EEA would be conducted on 20 May 2009. Mr Singh was not on duty that night. However the evidence does not support an inference that the EEA was deliberately arranged at a time Mr Singh could not attend.
The EEA was conducted by Mr Crawford accompanied by another Australia Post employee.
Relevantly, on 15 June 2009 Mr Crawford sent Mr Dineen a copy of a draft EEA Report and asked him to provide the draft to Mr Singh to review and provide feedback (but to return the annotated draft to Mr Crawford). Mr Singh acknowledged in his affidavit that he was shown the draft report in June 2009 and asked for his comments, but that he was not allowed to take it away. However, insofar as Mr Singh appeared to claim in cross-examination that he did not or could not read the report because he was not allowed to read it or to take it away, I do not accept that evidence.
Mr Crawford’s evidence is that as he had not had the opportunity to discuss the EEA or the draft report with Mr Singh he decided to meet with him directly. I accept Mr Dineen’s evidence that Mr Singh had expressed concern about the fact he was not involved in the assessment or completion of the report and that he wanted a copy of the draft report to keep. I also accept that Mr Singh told Mr Dineen that he would be willing to go through the assessment process, documentation and methodology with an OH&S representative. Mr Singh’s original evidence was that Mr Dineen advised that he would arrange for the people who conducted the test to “discuss” it with him. I do not accept his subsequent claim (in his affidavit in reply) that he and Mr Dineen agreed that the test would be conducted “afresh” involving him and night shift staff.
Mr Crawford’s account of what occurred when he attended SWLF on 16 July 2009 is corroborated by Mr Hong, a Shift Production Manager. Insofar as there is a conflict between Mr Crawford’s corroborated account and that of Mr Singh (who in his affidavit in reply said Mr Crawford attended, but that “nothing happened” as Mr Crawford had stated), I prefer Mr Crawford’s account. Thus, I am satisfied that on that day Mr Crawford met with Mr Singh from 8.15 pm to 8.45 pm and briefed him on the EEA methodology and the findings and recommendations in the draft report. I reject Mr Singh’s evidence that they did not discuss the contents of the report. I accept that Mr Singh was shown the draft report (as he said in his first affidavit) and that he told Mr Crawford that he disagreed with the findings and that his main objection was a lack of consultation or involvement in the risk assessment as well as perceived inaccuracies in the stated weight and clearing frequency of trays (contrary to Mr Singh’s claim that he did not provide any comment to Mr Crawford).
While Mr Singh made no reference in his affidavits to the follow-up task analysis Mr Crawford then conducted on the SP10 machine, in cross-examination he agreed that he had observed this analysis. I accept Mr Crawford’s evidence that Mr Singh refused to review the task with him, but that he observed and provided comment, including stating to Mr Crawford that he was no longer concerned about the weight of the trays, but rather the frequency with which employees were required to clear the trays. After discussion with Mr Hong, Mr Crawford amended the EEA report to take into account a higher tray clearance frequency than that observed at the assessment or on review.
The final EEA report concluded that the energy expenditure levels associated with the proposed change from two staff to one staff completing SP10 machine (short stacker) clearing at SWLF area over a one hour period was within recommended limits for the majority of the user population. In his affidavit Mr Crawford explained how the report was compiled (and the fact that he subsequently understood that employees only worked half an hour on this task, rather than an hour, so that the actual energy expended would be less that that used to conduct the EEA).
Mr Crawford provided copies of the final EEA report to Mr Dineen, Mr Barrett (a Shift Production Manager) and others on 22 July 2009. Mr Enzon of the CEPU was notified of the proposed changes by letter from Mr Sadler dated 27 July 2009. In addition, Mr Barney gave evidence of oral and written contact with Mr Enzon in August 2009 about the EEA and the proposed changes.
According to Mr Singh, on 13 August 2009 the night shift staff were informed of the EEA and told that the “crewing” of the short stacker side of the SP10 machine would be reduced from two people to one person from the next Sunday. In his affidavit Mr Singh did not refer to the staff briefings that Mr Barrett conducted from 14 to 18 August 2009. Mr Barrett conducted 45 minute briefings with each of the three Large Letters teams in which he outlined the short stacker staffing changes to commence on 24 August 2009, including the fact that the EEA had been conducted and that it confirmed that the changes were safe. He also advised that a review was to be conducted 6 weeks after implementation. Some staff expressed general OH&S concerns but did not give details, beyond stating that the work would be too much for just one person.
On 17 August 2009 a letter signed by 46 of the “Large letter 8pm staff” was sent to Mr Sadler expressing disagreement with the proposed change. It claimed there had been no discussion involving staff directly affected, that the change was unsafe as it would involve increased repetitive lifting of heavy trays over a large number of stackers and that the trays would be filled up at an unacceptable extremely high speed so that one staff member could not catch up. It claimed that consultation had been deliberately ignored and that management should look at improving mechanisms or systems of work and should educate staff on EEAs which should be conducted involving all HSRs, AURs, affected staff and a CEPU representative.
On 19 August 2009 Mr Singh wrote to Mr Sadler, as Facility Manager for SWLF, asking him to address the concerns raised and seeking copies of all risk assessments and energy expenditure tests conducted “during those days that they knew I was not at work”. Mr Singh stated that if he had not received such reports by midnight on 20 August 2009 he would have no option “but to take other steps that will satisfactorily address staff concerns on the health and safety aspects of this (sic) changes”.
On 20 August 2009 Mr Singh met with Mr Barrett. Mr Barrett’s evidence is that the meeting went for approximately an hour and that he offered Mr Singh tray dispersion data to support the premises in the EEA. Mr Singh declined that offer and also the opportunity Mr Barrett gave him at the end of the shift to provide feedback on the EEA.
On 21 August 2009 Mr Singh wrote to Mr Barrett suggesting that the EEA had been deliberately conducted at a time Mr Barrett and others in management were fully aware he was not at work. Mr Singh claimed that the staff did not fully understand the EEA, that there had been no consultation with the CEPU before the risk assessment was conducted and that he had been advised that the state office of the CEPU had asked its national office “to dispute the matter at the national level” because of the many issues of concern they had. Mr Barrett again met Mr Singh and advised Mr Sadler of their discussions, including the fact that Mr Singh had expressed concern at a claimed failure to advise the CEPU office of the issue.
At the start of the night shift on 24 August 2009, Ms Wilkins, the Shift Leader, conducted a staff briefing and advised that the new roster, with one person to work on the short stacker and the other person to be directed by Mr Petroski (the SP10 machine Process Leader) to work elsewhere, would begin that night.
Her evidence, which I accept, is that throughout that night as pairs of employees rotated onto the SP10 machine short stacker each half hour, Mr Petroski directed one of the employees to leave the SP10 machine and to go to either the flicksort area or the streaming area as specified (depending on work availability in those areas).
The first employee so directed refused the direction. Mr Singh, who as HSR was authorised under the Occupational Health and Safety Act 1991 (Cth) to issue a Provisional Improvement Notice (PIN) in circumstances where he had a concern regarding health and safety, then served Mr Hong with a PIN.
During the shift Ms Wilkins observed whether employees were complying with Mr Petroski’s directions. In her affidavit she listed 11 employees (including Mr Singh and Ms Sheriff) who refused to follow Mr Petroski’s direction to leave the short stacker side of the SP10 machine to work in another area, but remained working with their respective partners on the SP10 machine during the relevant rotation.
Ms Wilkins’ evidence is that when each employee refused Mr Petroski’s direction, she said words to the same effect. She asked if the employee was refusing the direction to go to flicksort or streaming and stated: “I am directing you to leave the Spectrum 10 machine and go to that area”. If the employee refused to leave the SP10 machine she advised each employee that his or her conduct was unlawful and not protected industrial action and that it would result in a loss of pay. She also asked each employee a series of questions and completed a questionnaire recording their responses. Ms Wilkins then advised each employee who refused a direction that he or she was free to leave the floor as they were not being paid for four hours, but they “all refused and remained in their chosen working positions for the remainder of the shift”.
Mr Barrett had a further discussion with Mr Singh that day. His evidence is that Mr Singh was unable to describe or to provide any examples of alleged unsafe aspects of the changes to the staffing on the SP10 machine.
Mr Barrett told the night shift staff that their behaviour was regarded as unprotected industrial action. While some staff commented that consultation had “not been completed”, or that “[t]here are safety issues with this change…There is too much work”, when asked for clarification or examples of what was unsafe no one provided any examples.
Ms Wilkins gave similar evidence about what occurred on the following three nights. In addition, on 25 August 2009 she told those night shift staff who had refused directions the previous evening that their pay would be docked because they had engaged in industrial action by refusing to work as directed in relation to the SP10 machine. Letters from Mr Sadler (for Australia Post) to this effect were distributed. The letters advised the employees that Australia Post considered their refusal of directions to be industrial action. Ms Wilkins also told staff that their pay would be docked again if they refused to leave the short stacker as directed.
Her evidence is that on 25 August 2009 a number of employees (including Mr Singh at 12.45 am) again refused the direction to work in another area and instead remained with their respective partners on the short stacker side of the SP10 machine. In addition, at 8.20 pm Mr Singh had “refused to work alone on the short stacker side of the SP10 machine”. Mr Petroski had directed Mr Singh’s work partner Mr Marquinez to the flicksort area. As Mr Marquinez started to comply with the direction, Mr Singh said to him words to the effect: “No Alan, come back here and work on the Spectrum 10 with me”. Mr Singh repeated this statement to Mr Marquinez a “large number of times”.
Mr Singh did not take issue with this aspect of Ms Wilkins’ evidence in his affidavit on 24 February 2010 in response to the affidavits filed for the respondent, including Ms Wilkins’ affidavit. I accept Ms Wilkins evidence.
Mr Singh’s evidence is that he was present during the interview process as AUR and took notes of what was said, including remarks by staff that they were not taking industrial action. According to Ms Wilkins she had the following conversation with Mr Singh on 25 August 2009:
MW: It is not within your jurisdiction to direct staff. That is management’s job.
DS: I have the right to direct people on OH&S issues.
MW: I do not consider this to be an OH&S issue and the direction to Alan stands. You are not to pressure staff. They have to make up their own minds.
DS: Well. I am not working here [on the short stacker] alone.
MW: In that case, you are engaging in industrial action. You are not required to perform any work and you should leave the processing floor.
Similar evidence was given by Ms Wilkins in relation to the events on the night shift on 26 August 2009. Mr Dineen conducted a staff briefing and again advised that staff would be docked four hours pay if they continued to pursue industrial action. He stated that Australia Post had addressed the safety issues associated with the change of staffing levels.
Both Mr Singh and Ms Sheriff (and other employees) refused a direction to perform work in another area and instead remained with their respective partners on the short stacker side of the SP10 machine. Mr Enzon, the CEPU organiser, arrived on the premises during the meal break. As indicated, according to Mr Metcher, Mr Enzon was the relevant Union Branch officer responsible for matters at SWLF.
Letters were again issued to employees advising that their pay would be docked under s.474 of the FWA for engaging in unprotected industrial action.
According to Mr Metcher his involvement commenced after contact with SWLF employees in relation to work on 26 August 2006 as Mr Enzon was ill and not available to be consulted. Mr Metcher emailed Mr Skeen, the NSW State Manager, Human Resources Division of Australia Post on 26 August 2009. He also wrote to Mr Taylor, the State Operations Manager on 27 August 2009. Mr Metcher did not receive a response from Mr Skeen until 31 August 2009 (despite telephone messages). He wrote again to Mr Skeen on 31 August 2009 and received a further response on 4 September 2009. This correspondence is detailed below in relation to the allegations of breaches by the CEPU of ss.349(1) and 475(2) of the FWA.
Mr Metcher’s evidence is that no consultation had ever taken place between Australia Post and the CEPU prior to 24 August 2009 “at either the State or National level to any proposed changes to the crewing levels on the SP10 [machine]”. However while I accept that Mr Metcher’s involvement with the health and safety matters associated with the proposed changes to crewing levels on the SP10 machine commenced on 26 August 2009, he acknowledged that prior to that time he had noticed various correspondence received by the CEPU office in relation to a situation at the SWLF regarding this issue and, as discussed below in relation to the alleged breach of cl.3 of the Enterprise Agreement by Australia Post, I am satisfied that there was prior consultation.
In any event, employees again refused directions to leave the SP10 machine during the night shift on 27 August 2009. Some employees swapped in order to work on the SP10 machine. Mr Singh was one of the employees who refused a direction to perform work in another area on that night.
Mr Singh issued a second PIN about 2 am on 28 August 2009 which referred to staff being threatened to follow unsafe procedures. He also complained of harassment of staff by management. Mr Singh met with Mr Barrett who advised him to lodge a harassment complaint if he felt harassed. Mr Barrett and Ms Wilkins addressed employees.
According to Mr Sadler, by Friday 28 August 2009 he was concerned about the situation. He spoke to Mr Enzon on 31 August 2009 and proposed that a working party be set up to come up with a mutually agreeable outcome. He suggested that, in the meantime, staffing would temporarily revert to two night shift employees working on the short stacker side of the SP10 machine. He confirmed this in writing by letter to the CEPU dated 1 September 2009.
Mr Enzon participated in a meeting of 2 September 2009 at which a working party of Australia Post employees was formed. It resulted in an agreement that one person would work on the short stacker side of the SP10 machine. The working party also proposed that the stacker configuration on the SP10 machine be changed to alleviate congestion on the conveyor system. As Ms Wilkins explained, this included removing the busiest stackers (referred to as “heavy” stackers, but meaning those with the most mail coming through) from the short stacker side to the long stacker side of the machine. A new roster started in October 2009 on this basis.
According to Ms Ferrington, an Employee Relations Consultant with Australia Post, in accordance with the relevant procedure Australia Post asked Comcare to investigate the PINs after Mr Singh had refused to withdraw the first PIN or to discuss it. Australia Post was of the view that the proposed changes did not pose a risk to the health and safety of employees. There were subsequent discussions and investigations, but at the time of the hearing Ms Ferrington had not received a report from Comcare.
According to Ms Sheriff and Mr Singh, during their shifts in the week commencing 24 August 2009 they performed their “normal duties” and worked on the short stacker “as usual” or as per the “normal roster”, that is with two people working on the short stacker. In Mr Singh’s view he did not engage in unprotected industrial action. According to Australia Post each of them engaged in unprotected industrial action and hence Australia Post was obliged to dock their pay under s.474 of the FWA.
Australia Post deducted wages from Mr Singh and Ms Sheriff for four hours on each of the shifts on which this conduct occurred, on the basis that Mr Singh had engaged in unprotected industrial action on each of 24, 25 and 26 and 27 August 2009 for less than four hours each day and that Ms Sheriff did so on 24 and 26 August 2009. According to Australia Post this was done because s.474 of FWA prohibited it from paying employees who were engaging in industrial action within s.19(1) of the FWA that was not protected industrial action under s.408 of the FWA.
The CEPU disputed the claim that the employees had engaged in unprotected industrial action in the week in question, essentially on the basis that the employees had continued to perform their work in the manner in which it was customarily performed. In these proceedings the CEPU contended that by docking the employees’ pay Australia Post had breached cll.16.1 and 16.2 of the relevant Award. It also alleged that Australia Post breached other provisions of the relevant Award and Enterprise Agreement which are transitional instruments for the purposes of the FWA.
Arising out of the same circumstances, Australia Post contended that the CEPU had sought payments relating to the periods of industrial action in question contrary to s.475(2) of the FWA and that it had also knowingly or recklessly misrepresented to Australia Post that Australia Post was required to engage in industrial activity in breach of s.349 of the FWA.
The non-payment of wages and industrial action
It is not in dispute that for shifts between 24 August and 27 August 2009 Australia Post did not pay eight hours of wages to Ms Sheriff and 16 hours of wages to Mr Singh. The non-payments were calculated on the basis of deductions of four hours pay in relation to Ms Sheriff’s shifts on 24 August 2009 and 26 August 2009 and four hours pay on each of 24, 25, 26 and 27 August for Mr Singh.
Section 545 of the FWA empowers the court to make any order it considers appropriate if satisfied that a person has contravened or proposes to contravene a civil remedy provision. Orders may include compensation for loss suffered because of the contravention. Interest is recoverable under s.547 of the FWA.
Both parties proceeded on the basis that, but for s.474 of the FWA, there would have been an obligation on Australia Post to pay Mr Singh and Ms Sheriff for all the hours of their shifts. The submissions in this respect focussed on the issue of whether the employees had engaged in industrial action. It is convenient to consider the issue on that basis, but I note first that s.546 of the Act only applies if there is a contravention of a civil remedy provision. The applicant alleged that there was a contravention of certain terms of an Award and Enterprise Agreement. It is not in dispute that Australia Post was bound by the Award and the Enterprise Agreement, that Mr Singh and Ms Sheriff were employees of Australia Post at all relevant times and that the terms and conditions provided in the Award and Enterprise Agreement applied to the employment of Ms Sheriff and Mr Singh.
Nor is it in dispute that the Award in question (the Australia Post General Conditions of Employment Award 1999 (AP 766597)) is an “award-based transitional instrument” for the purposes of s.539 of the FWA and Schedule 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act2009 (Cth), so that if a contravention of a term of the Award was established that would amount to a contravention of a civil remedy provision (see Item 2(1) of Schedule 16) in relation to which an application could be made to the court by the CEPU for orders under s.545 (see s.539(2)). Similarly, it is not in dispute that the Australia Post Enterprise Agreement 2004 (A4837636) (the Enterprise Agreement) is an “agreement-based transitional instrument” for the purposes of s.539 of the Act and Schedule 16 (see Item 2(2) of Schedule 16) so that if established, a contravention of a term of the Enterprise Agreement would be a contravention of a civil remedy provision in relation to which an application for orders under s.545 may be made to this court (see s.539(2) of the Act). Relevantly, the CEPU submitted that in failing to pay wages to Mr Singh and Ms Sheriff, Australia Post had breached cll.16.1 and 16.2 of the Award and that the CEPU could sue for recovery of those unpaid wages under s.545 of the FWA.
As set out above, in the week commencing 24 August 2009 Mr Singh and Ms Sheriff attended work during their rostered shifts. The night shift employees were told on each shift that week that only one employee should clear the short stacker side of the SP10 machine and on each rotation one employee was directed to work elsewhere. However the employees in question continued their past practice of having two employees clearing the mail as it was sorted into the short stacker. According to the CEPU, they “worked as normal”, performed their duties for the entirety of their shifts for the week of 24 to 28 August 2009, that these were the same duties that they had performed in the weeks prior to and after that week and that at no time did the employees stop work or carry out any bans.
Australia Post issued letters to each employee in question stating that four hours wages would be deducted for each shift on which there was a refusal of direction in that week because in Australia Post’s view the employee had engaged in unprotected industrial action and s.474 of the FWA prohibited it from paying an employee who took industrial action. The CEPU submitted that Australia Post was “seriously misguided” in its application of s.474.
Section 474(1), which is a civil remedy provision, is as follows:
(1) If an employee engaged, or engages, in industrial action that is not protected industrial action against an employer on a day, the employer must not make a payment to an employee in relation to:
(a) if the total duration of the industrial action on that day is at least 4 hours--the total duration of the industrial action on that day; or
(b) otherwise--4 hours of that day.
The CEPU submitted that the plain meaning of the words in s.474 had to be considered and that unless “industrial action” was actually found to have taken place s.474 did not come into play. This is uncontentious. However the CEPU submitted further that it would be contrary to the objects of the FWA to find that s.474 was mandatory, in that if that were so it would not provide the respondent with any discretion to pay employees for work done. The applicant did not refer to any authority in support of this proposition.
Counsel for the CEPU also submitted that it was relevant to the interpretation of s.474 to have regard to the fact that if employees were taking unprotected industrial action, it was open to an employer to apply to Fair Work Australia under s.418 of the FWA for orders to stop the industrial action. Section 418 is relevantly as follows:
(1) If it appears to FWA that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:
(a) is happening; or
(b) is threatened, impending or probable; or
(c) is being organised;
FWA must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period ) specified in the order.
(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.
(3) In making the order, FWA does not have to specify the particular industrial action.
…
Counsel for the CEPU also submitted generally that “he who seeks equity must do equity”, that Australia Post did not come to court with clean hands and that it was very “high-handed” of Australia Post to say that it had to dock the employees’ pay under the FWA when under that Act it could have taken action to prevent the so-called industrial action and when it was said to have done nothing to resolve the situation in the week commencing 24 August 2009. The CEPU also pointed to factual distinctions between the situations considered in cases in relation to the purpose of predecessors to s.474 of the FWA that had been referred to by counsel for Australia Post.
Counsel for Australia Post referred to the fact that in Hatton v Beaumont and Others [1977] 2 NSWLR 211 Hope JA of the NSW Court of Appeal had suggested (in the context of considering whether an act done in breach of a legislative provision was invalid) that the question of whether compliance with a statute was mandatory or directory only was a matter of construction and that “each statute, rule or regulation must be looked at in the light of its own language and of its particular scope and object” (at 220) (although now see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28).
It was submitted for Australia Post that s.474 was a clearly expressed penalty provision and that Australia Post did not have a discretion as to whether to withhold payment in relation to periods of industrial action. Reference was made to the fact that the Explanatory Memorandum to the Fair Work Bill referred to an employer being “prohibited” from making payments and to the purpose of the predecessors to s.474(1) (such as s.187AA of the Workplace Relations Act 1966 (Cth)) as considered in various cases, in particular Ponzio v B & P Caelli Constructions Pty Ltd and Others (2007) 158 FCR 543; [2007] FCAFC 65 at [83] – [84].
Section 474 is clearly expressed to prohibit an employer making a payment to an employee who has engaged in unprotected industrial action. Nothing in the FWA obliges an employer (or, for that matter, an employee organisation) to apply for orders under s.418. There is a clear distinction in obligation between the two sections and there is nothing in those provisions, elsewhere in the FWA or in the Explanatory Memorandum which justifies interpreting s.474 in the limited manner asserted by the applicant. Such a limitation would take no account of the fact that s.474 is a civil remedy provision, or of s.475 which prohibits accepting or seeking payments relating to periods of industrial action.
No authorities were cited in support of the CEPU’s oral submission that as Australia Post did not seek an order from Fair Work Australia under s.418 to stop the employees’ action, it did not come to the Court with “clean hands” and should be estopped from relying on s.474. The court was not addressed on how an equitable defence such as unclean hands was relevant in circumstances such as those before the court or, more generally, on the relevance of such principles where statutory remedies were sought (see New South Wales Dairy Corporation v Murray-Goulburn Co-operative Co Ltd and Another (1989) 86 ALR 549 at 583 per Gummow J).
On the material before the court I am not satisfied that Australia Post’s failure to apply to Fair Work Australia has any relevance to the determination of whether s.474 of the FWA is applicable. It is apparent from the language and purpose of s.474 and the FWA as whole that it is an imperative obligation and is not dependent on the employer, or some other party, taking proceedings in Fair Work Australia. It is clear that the policy of the FWA is that if an employee engages in unprotected industrial action it must be at the employee’s own expense. While the following remarks of Lander J in Ponzio (at [83] – [84]) were made in relation to s.187AA of the pre-reform Workplace Relations Act, they are in point in relation to the comparable provisions in the FWA, including s.474:
The policy of the Act is to discourage industrial action as it is defined in s 4 of the Act. The purpose of Part VIIIA of the Act, in which these provisions are contained, is to prevent an employer making a payment to the employer’s employee in relation to any period during which the employee engages in industrial action. It is the intention of the Act to discourage employers and employees agreeing to the employer paying employees for that period of industrial action engaged in by the employee. To that end, s 187AA makes it a contravention for an employer to make a payment to an employee who has in relation to a period during which the employee engaged or engages in industrial action and at the same time makes it a contravention for the employee to accept a payment from an employer if by doing so the employer will contravene subs (1) by making that payment. The policy of the Act is that if an employee engages in industrial action then it must be at the employee’s own expense. The purpose of s 187AB is to discourage unions and their officers from making claims for a payment or engaging in or threatening to engage in or organising industrial action for the purpose of coercing the employer to make a payment to an employee during a period of industrial action. That section has as its added purpose a protection to the employer in the event that a union or its members engage in that further industrial action.
Industrial action is discouraged by putting the cost of that industrial action upon the employee rather than the employer. No doubt it is thought that an employee will be less likely to take industrial action if the employee knows that it is a contravention for both the employer and the employee if the employer makes a payment for the period of industrial action.
Moreover, in O’Shea v Heinemann Electric Pty Ltd (2008) 172 FCR 475; [2008] FCA 1799 Middleton J suggested that while s.507 of the Workplace Relations Act (the predecessor to s.474 of the FWA insofar as it relates to unprotected industrial action) was in different terms to s.187AA, basically the same purpose was behind both provisions. As Middleton J stated at [28] – [29]:
It seems one purpose of the operation of s 507 is to deter industrial action for minor grievances. An employee will seriously consider stopping work for just 5 minutes if the consequence is losing a half day’s pay. On the other hand, I do not consider the provision to be punitive. If it were, the provision would operate to deduct a full day’s pay from an employee who engages in 4 hours or more industrial action on a day. Rather the intention seems to be to ensure that industrial action is not taken lightly and that the employee who engages in industrial action bears the economic consequences of that industrial action.
The Court must construe the words of s 507 in context. Part of the context of s 507 is that there is a right to take protected action. Another part of the context is that, because of other provisions of the Act, there is a right ordinarily to be paid for the work undertaken. Another part of the context is that the Act is trying to ensure that either employer or employee bears the financial consequence of loss of production; in the case of a lock-out, the employer, in the case of a strike, the employee.
Similarly, an employer does not have an “option” or discretion as to whether to make a payment prohibited by s.474, as counsel for the CEPU appeared to suggest. A breach of s.474 would be a breach of a civil remedy provision in relation to which penalty proceedings could be brought against the employer (as occurred in relation to breaches of predecessors to s.474 in, for example, Pine v Multiplex Constructions (Vic) Pty Ltd [2005] FCA 1428). Indeed, in Ponzio v Maxim Electrical Services (Vic) Pty Ltd (ACN 088 037 290) [2006] FCA 579 Ryan J stated (at [13]) that a lack of awareness on the part of an employer that particular conduct amounted to industrial action did not constitute a defence (and see Ponzio v Firebase Sprinkler Systems Ltd [2005] FCA 733). Further, an employer is not “estopped” in relation to the operation of the section by a failure to apply to Fair Work Australia under s.418 of the Act. The employer does not choose to rely on s.474. Rather the prohibition on payment arises where the prerequisites of the section (in particular unprotected industrial action) are in fact met.
Industrial action
Hence s.474 of the FWA would apply if an employee engaged or engages in industrial action that is not protected industrial action. Australia Post submitted that Mr Singh and Ms Sheriff had engaged in industrial action within the meaning of s.19(1)(a) and/or s.19(1)(b) of the FWA. This was disputed by the CEPU.
Industrial action is defined in s.19 of the Act as follows:
(1) Industrial action means action of any of the following kinds:
(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d) the lockout of employees from their employment by the employer of the employees.
(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.
...
The CEPU contended that the conduct of Mr Singh and Ms Sheriff in their shifts during the week commencing 24 August 2009 was outside the definition of industrial action in s.19(1) of the FWA and hence that s.474 was inapplicable. Counsel for the CEPU addressed the court about the background to and circumstances surrounding the events of that week, but confirmed that no reliance was placed by the CEPU on s.19(2) (which provides that industrial action does not include certain action, in particular action by employees authorised or agreed to by the employer or action by an employee based on a reasonable concern about an imminent risk to his or her health or safety in certain circumstances).
Thus, the applicant did not suggest and the evidence does not establish that the employees’ continued performance of work on the short stacker with two people (contrary to directions from Australia Post) was action authorised or agreed by their employer and thus not industrial action (see Independent Education Union of Australia v Canonical Administrators and Others (1998) 87 FCR 49 at 70; [1998] FCA 1127 per Ryan J). Rather, it was submitted that what occurred did not come within the meaning of s.19(1) of the Act.
I note that counsel for the CEPU referred at length to what was described as the “background” to the events of August 2009, including claimed industrial health and safety concerns, in particular those expressed by Mr Singh about the failure to involve him (as HSR and/or as AUR) in the initial EEA, concerns about the degree and nature of consultation by Australia Post with employees and the CEPU prior to introducing the change to the night shift roster on 24 August 2009 and the fact of the employees’ petition seeking further education and information. While these matters provide the context in which the conduct in question occurred, the CEPU did not contend and nor are the circumstances such as to satisfy me that the employees’ action was outside the scope of s.19(1), that any of the exceptions in s.19(2) apply based on the matters raised by the CEPU.
Action within s.19(1) must be “industrial” as distinct from some other kind of action (see Australia Post v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2006) 157 IR 378). The concerns raised in submissions for the CEPU do not establish that the action was not “industrial”.
Further, insofar as the CEPU took issue with the fact that Australia Post had expressed concern about the collective nature of the action, according to Australian Workers Union v Bluescope Steel Ltd (2008) 171 IR 115 the taking of action on a collective basis may constitute industrial action even if it would not constitute industrial action when taken individually.
The characterisation of conduct as industrial action involves a consideration of the facts and circumstances of each case (see Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Amcor Packaging (Australia) Pty Ltd, AIRC, Richards C, Brisbane, 12 August 2004, PR950592). That assessment is to be made by reference to the language of s.19(1).
Australia Post contended that the action in question came within either or both of paragraphs 19(1)(a) and (b). It was submitted that for the purposes of determining whether there had been action which amounted to the performance of work in a manner different from that in which it was “customarily performed” under s.19(1)(a), work was “customarily performed” in accordance with a lawful and reasonable direction. On this basis, where employees had been lawfully directed to perform their duties in a new or different way, their conduct in continuing to perform their duties in accordance with past practice (and thereby refusing a lawful and reasonable direction) was said to constitute industrial action within s.19(1)(a). It was submitted that in this case Australia Post was entitled to direct its employees to carry out particular work in accordance with cl.15.1.2(a) of the Award which provides:
Australia Post may direct an employee to carry out such duties as are within the limits of the employee’s skills, competence and training consistent with the relevant classification structure and work levels standards.
Counsel for Australia Post referred to the evidence that Ms Wilkins, who was Shift Leader of the night shift in the Large Letters area of the SWLF, gave lawful directions to Mr Singh and Ms Sheriff on the dates in question, as did Mr Petroski. Each of them refused to act in accordance with those directions as detailed in Ms Wilkins’ affidavit. It was submitted that Australia Post was entitled to direct its employees to carry out particular work in accordance with cl.15.1.2(a) of the Award, as the directions were reasonable and lawful having regard to all of the circumstances, including the fact that there had been a substantial reduction in workload in relation to the SP10 machine in the 10 years since its introduction (as attested to by Mr Barrett); the fact that the practice of having one person working the short stacker had been successfully and safely adopted on the two other shifts at the SWLF prior to 2009 with no evidence of any occupational health and safety issues; and the fact that there was no relevant imminent safety risk. Further, Mr Barrett had not been given details of any perceived safety risk in the petition of 17 August 2009 or by Mr Singh or other employees and Mr Crawford, an Occupational, Health and Safety Advisor, had conducted an energy expenditure assessment, compiled a draft report and discussed that report with Mr Singh on 16 July 2009, carried out a review and modified the report which did not support staff claims of occupational health and safety risks.
Australia Post also submitted that as the actions which constitute industrial action for the purposes of s.19 are not cumulative, the conduct of each employee in refusing to work on the task in the area directed, or refusing to work the short stacker alone could also be characterised as the “adoption of a practice” in relation to his and her work, the result of which was a restriction or limitation on or a delay in the performance of the work within s.19(1)(a) of the FWA.
Further, or in the alternative, Australia Post submitted that the actions taken by Mr Singh and Ms Sheriff in refusing to follow a lawful direction constituted placing a limitation or restriction on the way they performed their work within s.19(1)(b) of the Act. A number of authorities were cited in relation to the scope of s.19(1)(b).
The CEPU submitted that because the employees in question had continued to carry out their duties on the short stacker as they had during the weeks prior to 24 August 2009 and as they did thereafter, they had performed their work in the manner in which it was “customarily performed”. It was also contended that it could not be said that there had been “the adoption of a practice” in relation to work by an employee the result of which was a restriction or limitation on or delay in the performance of work or a ban, limitation or restriction on the performance of the work, given that the work continued to be done and as there was evidence that there was no delay in the delivery of mail.
First, there is evidence before the court that at the start of the “short stacker rotation” on each night in question during the week commencing 24 August 2009, Australia Post (through Mr Petroski and Ms Wilkins) directed each of Mr Singh and Ms Sheriff (and other night shift employees) to leave the SP10 machine and go to either the flicksort area or the streaming area. On each shift on which they worked that week Mr Singh and Ms Sheriff each refused to follow this direction but remained working with their partner on the SP10 machine.
The fact that an employee was refusing to follow such direction was confirmed with each employee by Ms Wilkins, who repeated the direction to leave the SP10 machine and, when the employee did not do so, advised each employee that the conduct was unlawful and was not protected industrial action. Importantly (and contrary to any suggestion that Australia Post agreed to the action), she also told each employee that he or she could leave the floor as they were not being paid for four hours, but each refused and remained “in their chosen working positions” as she put it.
In effect, what is in issue is whether the fact that the employees continued to perform tasks in accordance with their practice and roster prior to 24 August 2009 means that their conduct in refusing a direction was not within s.19(1) of the FWA.
Counsel for Australia Post referred to a number of decisions in relation to the issue of whether a refusal to perform work in a new manner could fall within s.19(1)(a) or (b) of the FWA. Qantas Airways Limited v Transport Workers Union (C2009/1077) (Fair Work Australia, Watson VP 15 July 2009 – Unreported – Transcript) involved a refusal by employees to perform work in accordance with a new roster. Notice of the new roster had been given to affected employees in accordance with the relevant Workplace Agreement. However employees continued to attend for work in accordance with the old roster. In proceedings under s.418 of the FWA, Qantas submitted, inter alia, that in refusing to work the new roster the employees had “adopted a practice” in relation to work the result of which was a restriction or limitation on or a delay in the performance of work within s.19(1)(a) of the FWA and that they were performing work in a manner different from that in which it was customarily performed on the basis that “customarily performed” meant in accordance with the requirements of the relevant industrial instrument and lawful directions of the employer. It was also submitted that the action was within s.19(1)(b) of the FWA.
However in that case the TWU appeared to accept that the employees’ conduct fell within the definition of industrial action under s.19(1) of the FWA (contending that the action was within the s.19(2)(c) exception because the employees were concerned about an imminent risk to their health and safety). In an ex tempore judgment Watson VP held (without reference to an particular subsection) that the employees’ conduct consisting of the failure or refusal to work a new roster promulgated in accordance with the applicable enterprise agreement fell “within the definition of industrial action in s.19 of the Act”, but did not refer to any particular part of s.19(1) of the FWA.
In Qantas Airways Limited v National Union of Workers [2009] AIRC 339, Commissioner Thatcher of the Australian Industrial Relations Commission considered an application by Qantas under s.496 of the Workplace Relations Act (as it then stood) to prevent threatened industrial action in relation to a refusal by employees and Union delegates to work a new roster. After consultation and notification of the commencement of the new roster in accordance with the relevant workplace agreement, the employees had stated their intention to work according to the old roster. Commissioner Thatcher found that the refusal to work according to the new roster (which had become operative in accordance with the relevant workplace agreement) constituted industrial action within the meaning of s.420 of the Workplace Relations Act (a predecessor to s.19 of the FWA).
While counsel for the applicant referred to the absence of factual comity between Qantas v NUW and this case, what is in issue is whether a refusal to work according to a new direction or roster or order can fall within a provision such as s.19(1), notwithstanding that there is not refusal to work in accordance with any earlier roster. There was, however, no discussion in Qantas v NUW of the precise basis on which the refusal to work according to a new roster would constitute industrial action.
Perhaps more analogous is the unreported decision in Qantas Airways Limited v Australian Licensed Aircraft Engineers Association (C2006/3319) (Australian Industrial Relations Commission, Raffaelli C, 14 November 2006 – Transcript). Qantas sought orders under s.496 of the Workplace Relations Act to stop impending industrial action. Qantas was moving from a 12 hour to an eight hour roster, as was open to it under the relevant workplace agreement. Qantas submitted that actions by employees in purporting to abide by the existing roster and refusing to perform work in accordance with the new roster would constitute industrial action within provisions equivalent to s.19(1)(a) or (b) of the FWA. The Union argued that the employees had not changed their working practices, that they intended to continue to perform their work as it had been performed in the past in accordance with the existing roster and that there was no stoppage of work and hence that they were not acting in a manner different from the way in which work was customarily performed and that there was no ban, limitation or restriction on the performance of work or any refusal of the acceptance of work.
Commissioner Raffaelli appeared to accept that orders should not be made on the basis that the employees were to perform work in a manner different to that in which it was “customarily performed” (Transcript PN 479 – 480), but found that Qantas had the right to introduce its new roster and that the employees’ refusal to work the new roster “triggered” the application of provisions equivalent to s.19(1)(b) and s.19(1)(c). Relevantly, it was suggested that following the introduction of a new roster the attendance of the employees under the old roster would involve a ban and a restriction on the performance of work (see s.19(1)(b)). Similarly in this case, the performance of work in accordance with past practice can also be seen to involve a failure to perform work as directed which amounts to a restriction on the performance of work within s.19(1)(b) of the FWA.
Again, contrary to the CEPU’s submissions, it is not in point that the precise factual circumstances in this case differ, in that there is no question of any refusal to attend for work (a matter that would be relevant under s.19(1)(c) of the Act). Rather, what is in question is whether, as a matter of interpretation of s.19(1), a refusal to work in accordance with a new roster or work arrangement may come within the language of s.19(1)(a) or (b) of the Act. The approach taken by Commissioner Raffaelli is consistent with my view that such conduct falls within s.19(1)(b) of the Act. What is critical is that there was not simply a performance of work in accordance with past practice, but there was also a failure to perform work as directed.
In Bovis Lend Lease Pty Ltd v Construction, Forestry, Mining and Energy Union and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2008] AIRC 693 what was in issue was a refusal by employees to perform work or undertake new tasks. This was said to constitute a limitation or restriction on acceptance of an offer for work. Senior Deputy President Watson was clearly of the view (at [39]) that it was not open to an employee to rely on “past practice” to justify conduct in contravention of a lawful direction to perform work in a new way. Similarly, it is not open to the employers in this case to argue that if they continued to perform the work in the way that they had performed it in the past, this justified conduct in contravention of a lawful direction to perform the work in a new way (that is, with one person on the short stacker side of the SP10 machine rather than two people).
Printing Industries Association of Australia on behalf of McPherson's Enterprises Pty Ltd (trading as William Brooks & Co) v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union - PR903421 [2001] AIRC 358 considered different circumstances. In that case what was in issue was a refusal by employees to perform work with contractors. This was said to constitute a ban on the performance of the work. Relevantly, the AMWU unsuccessfully argued that the employees’ conduct did not amount to industrial action as it merely maintained the present position. A comparable argument is put by the CEPU in the present case. However the Award and Enterprise Agreement permitted the employer to decide upon the arrangement of its work and to give directions to an employee to carry out duties within the limits of the employee’s skill, competence and training etc. In such circumstances the refusal by employees to work as directed was capable of amounting to industrial action.
The CEPU also contended that it was relevant that not only did the employees attend for work and perform all their duties, but also that the work was performed and there was no delay in the mail getting out to customers. Even if these factors are relevant in relation to whether the action is within s.19(1)(a) of the FWA, they do not take the action outside s.19(1)(b). Similarly, in Mobil Oil Australia Limited v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union - PR920248 [2002] AIRC 822, Senior Deputy President Harrison found that (if it occurred) a refusal to carry out duties in accordance with a new roster would be within the equivalent of s.19(1)(b), notwithstanding that work was still being done under an old roster. While that decision involved proposed action (and discretionary orders were not made in the particular circumstances), it provides a further illustration of the operation of a provision such as s.19(1)(b) where a refusal to work according to a new roster is in issue. (Also see Australian Postal Corporation v CEPU (C2008/3207 Australian Industrial Relations Commission, Lawler VP, unreported, 16 October 2008) which related to a refusal to comply with a direction to go to a different part of the work area and perform new duties (albeit duties provided for in employees’ contracts) in which the refusal to perform new work was regarded as industrial action.
In this case there is no evidence to support any contention that the directions as to the manner in which the work was to be performed on the short stacker were not lawful or reasonable as provided for in the Enterprise Agreement. I accept the submissions of Australia Post in this respect as outline above (and see Carlton and United Breweries Limited v Australian Liquor, Hospitality and Miscellaneous Workers Union and others re CUB Victoria Enterprise Development Agreement 2000 and Liquor and Accommodation Industry - PR923746 [2002] AIRC 1262).
I have borne in mind that, as was contended for the CEPU, each case has to be decided on its own facts. None of the above decisions bind this court or compel a particular conclusion, although they do illustrate the possible application of a provision such as a.19(1) of the FWA.
It is not necessary for present purposes to determine whether the refusal to work on a task in an area directed or to work the short stacker alone amounted to the “adoption” of a practice the result of which was a restriction or limitation on the performance of work within s.19(1)(a) or performance of work in a manner different from that in which it was “customarily performed” notwithstanding that the employees continued to work as they did in the past, the mail was still sorted and there was no evidence of consequential delay in delivery of mail. In my view the employees engaged in action that constituted a restriction or limitation on the performance of work by refusing a direction to work on a task in the area directed or to work the short stacker alone. This constituted a limitation or restriction on the performance of work by an employee within s.19(1)(b) of the FWA.
While the conduct of the employees might not amount to a “ban”, as it did not involve a total prohibition of the work in question (see NMHG Distribution Pty Ltd t/as Yale Asia Pacific v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Others (2000) 104 IR 158 at 162), the approach taken to the meaning of the words “limitation or restriction” by the Federal Court in Williams v Construction, Forestry, Mining and Energy Union (2009) 179 IR 441; [2009] FCA 223 is in point. In that case, in considering the meaning of the concept “ban, limitation or restriction” in s.36(1) of the Building and Construction Industry Improvement Act2005 (Cth) (which is, relevantly, in identical terms to s.19(1)(b) of the FWA) Jessup J stated the following (at [90]):
… In NMHG Distribution Pty Ltd (t/as Yale Asia Pacific) v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 104 IR 158, a Full Bench of the Commission said the following of the word “ban” in a statutory context indistinguishable from that with which I am presently concerned (at [11]):
The New Shorter Oxford English Dictionary includes the following meaning for the word “ban”: “a formal or authoritative prohibition (on or against something)”. This meaning accords with the use of the term in industrial relations discourse.
Regarding the contribution made by the words “limitation or restriction” to the composite phrase, in Commonwealth Steel Kirby J said (74 CAR at 94):
The word “ban” seems to me to have been obviously chosen to refer to a total prohibition of all the work described, whilst the draftsman has been careful that his widely spread net should also catch any lesser interference by the addition of the words “limitation or restriction.”
As the Full Bench said, there is something formal or authoritative about the concept of a “ban”. I would add that that the concept involves a prohibition which is absolute or categorical, and not merely a matter of inclination or preference. When Kirby J referred to a “lesser interference”, I consider that his Honour had in mind a limitation or restriction which did not involve a total prohibition of all the work described, such as a refusal to use a particular machine or tool. There would still be, in my view, be the need for the refusal to have the qualitative dimension of being absolute or categorical that is required in the case of a ban as such.
The employees’ action in this case was such a “lesser interference” with the performance of work, involving an absolute or categorical refusal to follow the directions described above, albeit there was not a total prohibition on all work. Relevantly, in Williams Jessup J went on to suggest that since the workers in question were under the control of their employer, it was the nature of their communications with their employer that must govern the answer to the question of whether they engaged in a ban, limitation or restriction. In relation to the issue of whether workers worked on a particular site, Jessup J stated: “If they refused to work on that site, there would, in my view, have been at least a limitation on the performance of work, notwithstanding that they may have been prepared to work elsewhere” (at [91]). The same may be said about the employees’ refusal to work in a specified part of the Large Letters area of SWLF away from the SP10 machine. Such an approach to the interpretation of the expression “ban, limitation or restriction” in the context of s.19(1) of the Act is apposite.
Also of assistance is Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Laing and Another (1998) 89 FCR 17; [1998] FCA 1410 in which the Federal Court was considering an appeal in which it had been contended that an order made by the Australian Industrial Relations Commission under s.127 of the Workplace Relations Act as it stood at the relevant time was invalid on the basis that it contravened the Union’s implied constitutional protection of freedom of political speech.
Relevantly, the Court addressed the issue of whether politically motivated action could be the subject of orders to prevent industrial action as defined in s.4(1) of the Workplace Relations Act. French J (as he then was) observed that the conduct that may be prevented by an order under the legislation as it then stood was limited to that which affected the performance or acceptance of or offering for work. His Honour noted that such conduct may extend to strikes, stop-work meetings, work to rule or go slow practices and that it was not confined to stoppages and stated (at 30):
…it has been said and in my opinion correctly, that for the purposes of s 127 "industrial action" is widely defined: Coal and Allied Operations Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (1997) 73 IR 311 at 321 (AIRC Full Bench). It extends to conduct by way of communication. While par (a) of the definition relates to the "performance of work", par (b) is more broadly expressed. It refers to "a ban, limitation or restriction on the performance of work, or on the acceptance of or offering for work". The central meaning of the term "ban" in the industrial, as in its ordinary usage, is to "prohibit or interdict": the Macquarie Dictionary. Communication between persons or an organisation and persons is essential to a "ban". And while the notion of "limitation" or "restriction" may have a meaning related to manner of actual performance of work, that meaning is picked up in par (a) of the definition. Under par (b) it extends to the communication of a limitation or restriction.
In the present case both Mr Singh and Ms Sheriff engaged in action constituting a limitation or restriction on the performance of work on the night shifts in the week commencing 24 August 2009 and in communication with their employer through Ms Wilkins. On the ordinary meaning of the words in s.19(1)(b), Ms Sheriff and Mr Singh engaged in industrial action.
Contrary to the applicant’s submission that the action could not constitute industrial action because Mr Singh and Ms Sheriff continued to carry out their duties in the manner in which they had previously been performed, I am satisfied that the failure to work in accordance with a reasonable and lawful direction to work in accordance with a new roster or working arrangement constitutes industrial action as a limitation or restriction on the performance of work by an employee within s.19(1)(b) of the FWA.
There is nothing in the Enterprise Agreement that prevented Australia Post from changing the way in which work was to be performed on the SP10 machine. Under cl.15.1.2 of the Award Australia Post could direct an employee to carry out such duties as were within the limits of the employee’s skills, competence and training consistent with the relevant classification, structure and work level standards.
Notwithstanding the generally expressed concerns raised by Mr Singh and Ms Sheriff and other employees about health or safety, I am satisfied on the evidence before the court, including work level standards for mail officers and training records for Mr Singh and Ms Sheriff, that the work they were directed to perform under the new rostering arrangements on the short stacker of the SP10 machine was in accordance with their skills, competence and training. Mail officers are required to operate mail processing equipment such as the SP10 machine. The employees given directions by Mr Petroski during the night shifts in the week commencing 24 August 2009 (including Mr Singh and Ms Sheriff) had undergone occupational, health and safety training for the operation of the SP10 machine and refresher training.
Clause 8.16
Clause 8.16 of the Enterprise Agreement appears in Part 8 of the Enterprise Agreement, which relates to employment conditions. Under the heading “Sort/Machine Rates” it provides that “Managers shall not use sort or machine rates in an unreasonable and unfair manner in the management of employees’ work or performance” The applicant contended in the application that the respondent had “used sort or machine rates of the short stacker side of the Spectrum 10 machine in an unreasonable and unfair manner. The unreasonable and unfair manner is the failure to pay its employees in 1 above wages for attendance at work” contrary to cl.8.16 of the Enterprise Agreement.
Counsel for the CEPU submitted that the fact that as at 24 August 2009 the heavy trays had not been moved from the short stacker side of the SP10 machine to the long stacker side meant that Australia Post used sort or machine rates (in particular the rates at which the SP10 receptacles for mail were filled) in an unreasonable and unfair manner in the management of employees’ work or performance on the basis that one person (rather than two people) was expected to deal with the same volume of mail.
However, as Australia Post submitted, cl.8.16 is directed to the use of sort or machine rates to manage employee work or performance, not to whether or not an employee would do certain work. Sort or machine rates were not used in the management of any relevant employee’s work or performance in the circumstances in issue in this case. It has not been established that the changes made to the work allocation on the SP10 machine involved or affected the “sort or machine rates” applicable to employees who performed work on that machine. There is no evidence of any relationship between Australia Post withholding pay from the employees concerned and their performance in relation to sort or machine rates on the Spectrum 10 machine. No breach of cl.8.16 of the Enterprise Agreement is made out.
Conclusion in relation to CEPU’s claims
As none of the claimed breaches by Australia Post asserted by the CEPU have been established there is no basis for any orders pursuant to ss.545 and 547 of the FWA for payments to Mr Singh or Ms Sheriff. Nor is there any basis for the imposition of a penalty on Australia Post in accordance with s.546 of the Act. The issue of whether any such penalties should be paid to the applicant does not arise for consideration.
Australia Post’s claims
That leaves for consideration the orders sought by Australia Post in relation to the CEPU. Initially it was contended in the response that there had been contraventions by the CEPU of ss.475(2), 348 and 349 of the FWA. Counsel for the respondent advised that the allegation in relation to s.348 was not pursued.
Section 475(2)
Section 475(2) of the Act is as follows:
An employee organisation, or an officer or member of an employee organisation, must not ask an employer to make a payment to an employee if the employer would contravene section 474 by making the payment.
Note 1: This subsection is a civil remedy provision (see Part 4‑1).
Note 2: Acts of coercion, or misrepresentations, relating to such payments may also contravene section 348 or 349.
Australia Post contended that the CEPU, an employee organisation, asked it to make a payment to employees in circumstances where it would contravene s.474 of the Act by making such payment. In particular, in its response Australia Post asserted that the CEPU:
asked [it] to make a payment to employees at the [SWLF] in relation to periods of industrial action by employees during shifts in the period 24 to 30 August 2009 including by the Applicant;
(a) sending correspondence to the Respondent requesting the Respondent to cease withholding wages for the period of the refusal to perform the relevant work; and
(b) commencing these proceedings”.
It was contended that “Australia Post contravened s 475(2) of the Act in making such a request”. It is not in dispute that the CEPU is an employee organisation or that Australia Post has standing to apply for the orders sought.
As set out above, had Australia Post made a payment to Mr Singh and Ms Sheriff or to other employees who engaged in unprotected industrial action in the week commencing 24 August 2009 it would have contravened s.474 of the FWA. What is in issue is whether the CEPU asked Australia Post to make such a payment. It was not contended that there was a contravention of s.475(2) by any individual.
The response does not particularise all the conduct now said to amount to “ask[ing]” Australia Post to make such a payment. However it is clear that only one contravention (“a request”) was alleged in the response.
The Metcher letters
First it was submitted that in letters of 27 August 2009 and 31 August 2009 sent by Mr Metcher, Branch Secretary of the CEPU, to Australia Post, the CEPU had asked Australia Post to make payments to employees who had engaged in industrial action at its premises in breach of s.475(2) of the Act. In written submissions it was clarified for Australia Post that the contention was that by claiming payments of wages deducted from Mr Singh and Ms Sheriff between 24 and 28 August 2009 both prior to and in these proceedings the CEPU was in breach of s.475(2) of the Act.
Counsel for the applicant acknowledged that s.475(2) did not come into effect unless the court first found that there was industrial action on the part of the employees. However I have found that there was such industrial action.
The CEPU took issue with whether or not the letters from Mr Metcher were within s.475 of the Act.
The first correspondence in issue is a letter which Mr Metcher sent by facsimile to Mr Terry Taylor, the State Manager of the Mail Network division of Australia Post on 27 August 2009, after Mr Metcher became aware that unprotected industrial action notices had been issued by Australia Post to employees on 27 August 2009. According to Mr Metcher, he wrote to Mr Taylor in circumstances where there had been no response to a telephone message he had left for Mr Colin Skeen, the NSW State Manager of Human Resources Division for this area of Australia Post to discuss SP10 health and safety matters. Mr Skeen was not a witness in these proceedings.
It is necessary to consider the part of the letter relied on by Australia Post in context. The letter of 27 August 2009 attached a copy of the unprotected industrial action notice received by the employees and referred to earlier correspondence Mr Metcher had sent to Mr Skeen in relation to concerns raised by an email of 26 August 2009 from Mr Singh (the HSR) and CEPU members at SWLF about what were described as “serious health and safety matters” and “inappropriate local management abuse” of staff, as well as to Mr Skeen’s failure to respond to matters placed in dispute by the CEPU or to return telephone messages. In his earlier email Mr Metcher had placed “the matter” into dispute and sought to initiate meetings to resolve it. However the extent of the matter placed in dispute is not entirely clear, as also attached was a copy of a letter from Mr Metcher to Mr Skeen dated 27 July 2009 objecting generally to “inappropriate conduct and behaviour” of NSW Mail and Network Division representatives “confronting Union representatives at all levels on a regular basis”, as well as a copy of an email from Mr Singh about SP10 crewing level change and events on the night shift commencing 24 August 2009, the staff petition and the letters from Mr Sadler to staff members advising them that they would not be paid four hours for shifts “as per” s.474 of the Act. In his affidavit Mr Metcher claimed that he had “asked [Mr Taylor] amongst other things to cease the action of issuing these notices to employees with withholding wages and for Australia Post to abide by the agreed dispute processes by responding to our concerns in resolving the health and safety matters in dispute at SWLF”. I note that a request not to issue notices in the future does not constitute asking Australia Post to make a payment within s.475(2) of the FWA.
Mr Metcher’s letter of 27 August 2009 then referred to “very serious” claims made in the letters from Mr Sadler to employees about employees engaging in unprotected industrial action and took issue with any suggestion that the CEPU had encouraged the events of 24 and 25 August 2009 or that employees had not abided by agreed dispute processes. Mr Metcher refuted such assertions. He referred to the fact that a provisional improvement notice had been issued by the HSR (Mr Singh) and outlined his concerns about the need for utilisation of agreed dispute processes. He expressly denied that the CEPU encouraged the events purporting to be conduct involving unprotected industrial action by employees. The letter continued:
Therefore, we are requiring as a matter of urgency and by 5pm today for Australia Post to confirm in writing the following agreed arrangements for resolving this disturbing and serious matter:
1. Australia Post agrees to withdraw all letters issued to employees containing the false claim of employees engaging in unprotected industrial action on 24 August 2009.
2. Australia Post agrees to withdraw the action to withhold wages of employees who are members or are eligible to become members of the Union for performing normal ordinary duty on 24 August 2009.
3. Australia Post agrees to withdraw the false claim of the CEPU ‘encouraging the events’ on 24 and 25 August 2009.
4. Australia Post agrees to abide by the agreed dispute processes to respond and resolve the health and safety matters at Sydney West Letters Facility as raised in correspondence by the HSR, employees and the CEPU.
Australia Post alleged that the “requirement” that it confirm that it agreed to “withdraw the action to withhold wages” of employees for “performing normal ordinary duty on 24 August 2009” amounted to asking it to make a payment to an employee contrary to s.475(2) of the FWA.
Counsel for the CEPU contended that it was relevant that in the letter of 27 August 2009 Mr Metcher for the CEPU did not concede that unprotected industrial action had taken place and suggested that insofar as he was asking for wages to be repaid he did so on the basis that the employees had performed their normal ordinary duties. It was contended that as there was no concession by the CEPU that industrial action had taken place and as only the employer took this view, these were not circumstances in which s.475(2) could apply. However, insofar as it was contended that s.475(2) could not apply unless there had been a concession by the employee organisation or a finding by a court that there had been (unprotected) industrial action at the time of making the request, no authorities were cited in support of this proposition.
There was no suggestion that the actions of Mr Metcher would not on ordinary principles of agency be those of the CEPU. However it is important to note that what Mr Metcher asked Australia Post to do was to withdraw the action of withholding wages of employees “for performing normal ordinary duty” on 24 August 2009. Section 475(2) applies only to asking the employer to make a payment to an employee “if the employer would contravene section 474 by making the payment”. In turn, s.474 applies where an employee engaged in industrial action that is not protected industrial action. Under s.19 “performing normal ordinary duty” would not of itself and without more constitute industrial action. What also occurred in this case to bring the action with s.19(1) was the employees’ refusal to follow a direction. It is apparent from his evidence that Mr Metcher (who did not have primary responsibility for SWLF), accepted Mr Singh’s claims that staff were simply following their roster. However Australia Post had scheduled changes to the roster (consisting of changes to the staffing on the short stacker side of the SP10 machine). This issue was on the agenda for AUR/management meetings in 2009 (including a meeting scheduled for 20 August 2009). Mr Singh, the AUR, was invited to these meetings but did not attend. There is no evidence that Mr Metcher was aware of this or of staff briefings in August 2009 about the introduction of the proposed changes on 24 August 2009. In cross-examination, Mr Metcher conceded that he did not know that Mr Singh had received notification of such meetings. Importantly, he also stated that he was unaware that the 34 employees affected by s.474 notices had been directed to work elsewhere other than the SP10 machine and that they did not work elsewhere but continued to work on the SP10 machine. When Ms Wilkins’ affidavit evidence was put to him he explained that he did not know this and that he had read other material where claims to the contrary had been made.
In other words, on the information he had at the time he wrote to Mr Taylor, Mr Metcher was not aware that the employees had been directed to work elsewhere, but had determined to work on the SP10 machine. He did not ask the employer to make a payment to employees who had refused a lawful and reasonable direction. While s.475(2) does not refer to the knowledge of the person (on behalf of an employee organisation) asking the employer to make a payment, I accept, on the basis of Mr Metcher’s evidence and the language used in the letter of 27 August 2009, that he was not asking Australia Post to pay employees in relation to industrial action, but rather that it not withhold wages from employees “for” performing normal ordinary duty. Hence I am not satisfied that by this letter Mr Metcher (for the CEPU) asked Australia Post to make a payment to an employee within s.475(2). Australia Post was asked to pay employees “for” performing normal duty. Had it paid employees “for” performing normal ordinary duty (as distinct from a payment for action constituting a limitation or restriction on the performance of work) it would not have contravened s.474 by making such payment.
In addition, reliance was placed by the respondent on Mr Metcher’s letter to Mr Skeen dated 31 August 2009. According to Mr Metcher he sent that letter after receipt of a letter dated 28 August 2009 from Mr Skeen which in his view did not respond to the matters that he had raised with Mr Skeen and Mr Taylor.
In the letter of 31 August 2009 Mr Metcher took issue with whether or not there had been consultation (as had been claimed by Mr Skeen). He contended that there had been an unspecified breach by Australia Post of its responsibilities under the Occupational, Health and Safety Act 1991 (Cth), the Enterprise Agreement and its obligations under the FWA. Mr Metcher noted the absence of any proceedings under s.418 of the FWA by Australia Post against employees and/or the CEPU for allegedly engaging in or inciting alleged unprotected industrial action and continued:
What we do note is that Mr Sadler has contacted Mr Enzon this afternoon and proposed that Australia Post would refrain from any further action against employees from this evening and maintain staff job roster arrangements (status quo) to allow discussions to occur at a high level to resolve the matters in dispute.
However, Mr Sadler indicated his proposal for resolving these matters did not include reversing the actions taken by management against staff to date in terms of withholding wages, due to higher levels of management had been responsible for making these decisions and not him as the Facility Manager.
Mr Sadler has been encouraged by Mr Enzon to put his proposal in writing to the Union.
We further encourage Australia Post at the high senior State level to reconsider their position to the matters that are subject to dispute as outlined in our letter to Mr Taylor on 27 August 2009.
In the meantime, the Union is contemplating to invoke its available options to resolve these matters in dispute that includes removing risks to the health and safety to employees in the workplace in addition the taking of necessary action to cease the inappropriate conduct by Australia Post management in injuring its employees who are members of the Union by withholding their wages unlawfully.
According to Australia Post this letter, taken together with the letter of 27 August 2009, constituted a demand that Australia Post pay employees wages when it would have been unlawful for it to make that payment.
The CEPU submitted that the letter of 31 August 2009 did not support the submission that the CEPU had asked for monies to be paid that had been docked as a result of industrial action. It was said to be clear that all that had happened was that the CEPU was trying to resolve the situation and that from the CEPU’s perspective the employees who had been docked had not taken industrial action. It was submitted that the CEPU was within its rights to ask for the monies to be repaid to try to resolve the situation.
This aspect of the claimed contravention is not made out. The letter of 31 August 2009 does not ask Australia Post to make a payment. Mr Metcher noted that Mr Sadler did not propose reversing the withholding of wages. The letter encourages Australia Post to reconsider it position in relation to matters in dispute and advises that the CEPU is contemplating its available options to resolve matters in dispute. However I am of the view that such encouragement and a reference to possible (legal) action does not amount to asking Australia Post to make a payment within s.475(2) either of itself or in conjunction with the other conduct relied on by Australia Post.
Further, insofar as it was asserted in the response that part of the way in which the CEPU breached s.475(2) was by commencing these proceedings (in which it sought orders that Mr Singh and Ms Sheriff be paid amounts that were withheld by Australia Post), such conduct does not come within s.475(2). There is a clear distinction between asking an employer to make a payment and asking the court to order an employer to make a payment. The latter situation is not in s.475(2).
Finally, in pre-hearing written submissions filed after all affidavits had been filed, Australia Post referred to the fact that according to the affidavit evidence of Ms Wilkins, Mr Enzon “pressed” Australia Post in the meeting of 2 September 2009 to pay the employees the monies deducted from their wages as a result of their industrial action from 24 to 27 August 2009.
Australia Post had not referred to this particular aspect of the claimed contravention of s.475(2) in its response. Instead the response referred to conduct “including” CEPU correspondence and commencing these proceedings. There was, however, no suggestion for the CEPU that in the absence of particulars of this basis for the alleged contravention in the response it was not open to Australia Post to allege that the actions of Mr Enzon in the meeting of 2 September 2009 constituted or formed part of a breach of s.475(2) of the FWA by the CEPU. Nonetheless, Mr Enzon’s failure to give evidence relevant to this issue must be seen in light of the fact that this allegation about his conduct was first made by the respondent after all the affidavit evidence had been filed. Even if it is open to the respondent to rely on this allegation (in the absence of objection by the CEPU), in my view no adverse inference should be drawn from Mr Enzon’s failure to give evidence about what occurred in the meeting of 2 September 2009.
The meeting of 2 September 2009 was attended by a number of Australia Post employees, including Mr Singh, Mr Barney and Mr Dineen. Perhaps unsurprisingly (given that the allegation of contravention of s.475(2) at that meeting was only made in pre-hearing submissions) only Ms Wilkins gave affidavit evidence about what Mr Enzon said at that meeting. Her view that Mr Enzon “pressed” for Australia Post to make a payment is no more than her view. What is in issue is whether what Mr Enzon said came within s.475(2). According to Ms Wilkins, Mr Enzon said words to the effect of:
Employees should be paid the money that has been docked from them. Is Post (sic) going to rescind the docking of employees’ pay?
I am not satisfied on the evidence before the court that for Mr Enzon to express a view that employees “should” be paid and to ask Australia Post whether it was going to rescind the docking of their pay, constituted a “demand” for payment such as to amount to asking Australia Post to make a payment contrary to s.475(2) of the FWA, either alone or in conjunction with the other matters relied on by Australia Post.
Insofar as the respondent’s oral submissions also canvassed (for the first time) that what was allegedly said by Mr Enzon to Mr Sadler on 31 August 2009 was part of the conduct in s.475(2) of the FWA, I have considerable concern about an allegation of a breach of a civil remedy provision being able to be raised at such a time in the proceedings (notwithstanding the fact that counsel for the CEPU took no issue in this respect). In any event, on Mr Sadler’s own evidence, what occurred in that conversation is not in the circumstances of this case sufficient to establish a contravention, either alone or in conjunction with the other conduct in question. According to Mr Sadler, Mr Enzon stated:
If you want this situation resolved, you need to pay employees the money you have docked from their wages, back to the start.
Mr Sadler replied:
I can’t do that. The employees are participating in industrial action and it would be illegal for me to pay them in those circumstances.
Mr Enzon replied:
You can do anything you want.
Clearly, in light of s.474 that is not so, but I am not satisfied that a suggestion that if Mr Sadler wanted the situation resolved, he “need[ed]” to pay back employees is sufficient to amount to asking Australia Post to make a payment contrary to s.475(2), given that this conversation was clearly a discussion of alternatives which, as Mr Sadler confirmed in his letter of 1 September 2009, led to a proposal to resolve the “SP10 revised roster dispute” by reintroducing the old roster pending a meeting on 2 September 2009 to work through issues in dispute.
No failure by CEPU to comply with s.475(2) has been established.
Section 349
It was also alleged by Australia Post that there was a breach by the CEPU of s.349 of the FWA which is as follows:
(1) A person must not knowingly or recklessly make a false or misleading representation about either of the following:
(a) another person's obligation to engage in industrial activity;
(b) another person's obligation to disclose whether he or she, or a third person:
(i) is or is not, or was or was not, an officer or member of an industrial association; or
(ii) is or is not engaging, or has or has not engaged, in industrial activity.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.
It was contended in the response that the CEPU “knowingly or recklessly misrepresented to the Respondent that the Respondent was required to engage in industrial activity within the meaning of s.347(g)”. This conduct was said to be in breach of s.349 of the FWA.
Section 347(g) of the Act relevantly provides that:
A person engages in industrial activity if the person:
…
(g) makes a payment:
(i) that, because of Division 9 of Part 3‑3 (which deals with payments relating to periods of industrial action), an employer must not pay; or
(ii) to which an employee is not entitled because of that Division. (emphasis in original)
It was not disputed that the respondent has standing to apply for orders in relation to any such contravention (see Item 11 of the Table in s.539(2) of the Act).
Once again, the circumstances sought to be relied on by Australia Post in relation to this alleged contravention did not emerge until after affidavits were filed, although the nature of the alleged representation was specified in the response. As clarified in pre-hearing written submissions of 5 March 2010, it was contended for Australia Post that the CEPU (through Mr Metcher) made a false and misleading statement within s.349(1) of the FWA in that in the letter of 27 August 2009 Mr Metcher was said to have represented to Australia Post that it was required to make payments to employees, when to do so would in fact constitute a breach of s.474 of the Act (the Metcher representation). In addition it was submitted that on 25 August 2009 the CEPU acted in breach of s.349(1) of the Act by Mr Singh making a false and misleading misrepresentation to Mr Marquinez (a fellow employee at the SWLF) which obliged Mr Marquinez to not obey a lawful direction given to him by Mr Petroski, a Process Leader of the respondent (as described in the affidavit of Ms Wilkins) (the Singh representation). It was submitted that Mr Singh made a false or misleading misrepresentation about another person’s obligation to engage in industrial activity.
These are two quite distinct allegations, notwithstanding that only one contravention (which was said to be based on a misrepresentation that Australia Post was required to engage in industrial activity within the meaning of s.347(g) of the FWA) was alleged in the response.
First, Australia Post contended that in Mr Metcher’s letter to Australia Post of 27 August 2009, Mr Metcher engaged in conduct that amounted to the CEPU making a representation under s.349(1) of the Act. Mr Metcher was said to have claimed that in not paying employees for engaging in industrial action Australia Post was “engaging in conduct that constitutes a breach of…obligations and undertakings made within the Australia Post Enterprise Agreement [and its] obligations under the Fair Work Act”.
It was submitted that such a statement was “false and misleading in that it represented to Australia Post that it was required to make payments to employees, when to do so would in fact constitute a breach of s 474 of the Act” and that having regard to the fact that Mr Metcher was the Branch Secretary of the CEPU this constituted a breach of s.349(1)(a) of the Act by the CEPU. This contention was put on the basis that if Australia Post were to make such payments it would have engaged in industrial activity pursuant to s.347(g) of the Act by making a payment in respect of a period of industrial action that was prohibited because of Division 9 of Part 3-3 of the Act.
This allegation was consistent with the alleged contravention of s.349 identified in the response, although it is apparent from the respondent’s later oral and written submissions that the reference to the letter of 27 August 2009 was intended to be a reference to Mr Metcher’s letter of 31 August 2009 to Mr Skeen which is discussed above. No issue was taken by the CEPU in that respect.
The CEPU submitted that there was no evidence to support the submission that the CEPU had, through Mr Metcher, breached s.349 of the Act and that it was apparent from the last paragraph of the letter of 31 August 2009 that all that was happening was that the CEPU was trying to resolve the situation. It was pointed out that it was Mr Metcher’s evidence that he did not even know what was going on until the end of the week commencing 24 August 2009 and that his involvement was to try to resolve the situation. It was contended that he was not in any way party to any industrial action to taking place and so there was nothing to support the submission that he did anything to place the CEPU in breach of s.349 of the Act.
As set out above, in this letter Mr Metcher was not asking Australia Post to make a payment in contravention of s.475(2). Further, the “representation” in issue was not expressed to relate specifically to Australia Post’s failure to pay employees for engaging in industrial action. Rather, Mr Metcher took issue with Mr Skeen’s failure to reply to his earlier correspondence, to return phone calls or to address claims about consultation with the area HSR, the AUR, affected staff and the CEPU organiser. He sought further information and referred to a range of issues that had been raised in a discussion between Mr Barney and Mr Enzon (which, as is apparent from a letter from Mr Barney to the CEPU dated 14 August 2009, extended well beyond the SP10 staffing issue). Mr Metcher then stated:
The circumstances that have and continue to be confronted by SWLF employees who are members of the Union, is whereby (sic) Australia Post is engaging in conduct that constitutes a breach of:
· responsibility under the Commonwealth Occupational Health and Safety Act 1991;
· obligations and undertakings made within the Australia Post Enterprise Agreement 2004;
· obligations under the Fair Work Act 2009
This assertion followed that part of the letter in which Mr Metcher disputed Australia Post’s claims about having engaged in consultation (as to which see cl.3 of the Enterprise Agreement). Mr Metcher did not refer to any suggested breach of the Award as such (which is the basis for the claim that payments should be made to Mr Singh and Ms Sheriff albeit any such failure would also be a contravention of a civil remedy provision under the FWA).
While Mr Metcher’s letter went on to address the proposed resolution of what was clearly intended to be a reference to the SP10 machine staffing issue, I am not satisfied that his general assertion that Australia Post was in breach of its obligations under the Enterprise Agreement and the FWA was such as to constitute “knowingly or recklessly” making a false or misleading representation about Australia Post’s “obligation to engage in industrial activity” being the making of a payment that it must not pay within s.347(g) of the FWA. I have in this respect had regard to Mr Metcher’s limited knowledge of the events in question, his belief that the employees were engaging in normal ordinary duty and his lack of knowledge about any refusal of a direction by Australia Post by the employees as discussed above as well as to the generality of the assertion made in the letter in question.
In all the circumstances it has not been established that in the letter in question the CEPU knowingly or recklessly made a false or misleading representation about Australia Post’s obligation to make a payment it must not pay (because to do so would constitute a breach of s.474 of the FWA). It has not been established that the CEPU breached s.349(1) of the FWA in the manner contended for by Australia Post.
As to the Singh representation, Australia Post submitted that throughout all relevant times Mr Singh was acting as an accredited representative of the CEPU so that his actions could be seen as actions of the CEPU (See Concrete Constructions Pty Ltd and Another v Plumbers and Gasfitters Employees’ Union and Another (No 2) (1987) 15 FCR 64, Allison and Others v Tenix Defence Pty Limited (2002) 112 IR 171 and Qantas Airways Limited v The National Union of Workers (C2008/2411)). This was not disputed by the CEPU.
In further written submissions filed for the respondent after all the witnesses except Mr Barney had been cross examined (and in oral submissions) counsel for Australia Post suggested that the alleged contravention consisted of Mr Singh’s actions as the CEPU representative on 25 August 2009 in instructing Mr Marquinez to not comply with a direction from Australia Post to work in the flicksort area. However, contrary to what was alleged in the response (which referred to s.347(g)), this was said to result in the CEPU being in breach of s.349(1)(a) of the Act on the basis that s.347(f) of the Act includes as engaging in industrial activity, circumstances in which a person “takes part in industrial action”.
There was no reference to any reliance on s.347(f) in Australia Post’s response or in the pre-hearing written submissions. Only one contravention was alleged in the response and it was said to be on the basis that the CEPU knowingly or recklessly represented to Australia Post that it was required to engage in industrial activity within the meaning of s.347(g) of the Act (which relates to making a payment that the employer must not pay or to which an employee is not entitled). This was the allegation that the CEPU had to meet in these proceedings. Nothing said by Mr Singh to Mr Marquinez was of this nature. No such representation by Mr Singh has been identified.
In these circumstances it is not necessary to consider the issue of whether Mr Singh knowingly or recklessly made a false representation to Mr Marquinez, as there is no evidence of any representation that could amount to a representation that Australia Post was required to engage in industrial activity within the meaning of s.347(g) of the Act as was alleged in the response. No contravention of s.349 of the Act on the basis alleged in the response is made out in relation to the Singh representation.
As no contravention by either party has been established, the question of penalty (which was to be determined separately) does not arise. Both the CEPU’s application and Australia Post’s application for further orders in its response should be dismissed.
I certify that the preceding two-hundred and forty-three (243) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 10 September 2010
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