Construction, Forestry, Maritime, Mining and Energy Union v Boggabri Coal Operations Pty Ltd

[2021] FCAFC 211

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Maritime, Mining and Energy Union v Boggabri Coal Operations Pty Ltd [2021] FCAFC 211

Appeal from:	Construction, Forestry, Maritime, Mining and Energy Union & Anor v Boggabri Coal Operations Pty Ltd [2021] FCA 719
File number:	NSD 696 of 2021
Judgment of:	RANGIAH, O'CALLAGHAN AND SNADEN JJ
Date of judgment:	23 November 2021
Catchwords:	INDUSTRIAL LAW – whether industrial action was taken prior to other, protected industrial action – whether amounts deducted from remuneration were properly withheld on account of earlier industrial action – second appellant took steps to shut down machinery ahead of planned protected industrial action – direction to work “right up to” time of planned action – whether preparatory steps involved performance of work in a non-customary manner – whether preparatory steps were “authorised or agreed to by” respondent – preparatory steps amounted to industrial action – deductions properly made – appeal dismissed
Legislation:	Fair Work Act 2009 (Cth) ss 19, 50, 323, 409, 413, 414, 415, 474, 570
Division:	Fair Work Division
Registry:	New South Wales
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	33
Date of hearing:	19 November 2021
Counsel for the Appellants:	Mr S Crawshaw S.C. with Mr S Mueller
Solicitor for the Appellants:	Construction, Forestry, Maritime, Mining & Energy Union
Counsel for the Respondent:	Mr Y Shariff S.C. with Ms V Bulut
Solicitor for the Respondent:	Ashurst

ORDERS

NSD 696 of 2021

BETWEEN:

CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION

First Appellant

DAVID ERROL BOXSELL

Second Appellant

AND:

BOGGABRI COAL OPERATIONS PTY LTD

Respondent

ORDER MADE BY:	RANGIAH, O'CALLAGHAN AND SNADEN JJ
DATE OF ORDER:	23 NOVEMBER 2021

THE COURT ORDERS THAT:

1.The appeal be dismissed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1. In September and October 2019, the respondent (“Boggabri Coal”) employed the second appellant, Mr Boxsell, at the open cut coal mine that it operated near Boggabri, New South Wales.  The terms of that engagement were regulated by the Boggabri Coal Operations Pty Ltd 2016 Enterprise Agreement (the “EA”), which was an enterprise agreement that was made—and, at relevant times, had force—pursuant to the Fair Work Act 2009 (Cth) (the “FW Act”).

2. By an originating application dated 9 July 2020, Mr Boxsell, together with his union, the first appellant (the “CFMMEU”), moved for declaratory and compensatory relief under Pt 4-1 of the FW Act. The appellants charged Boggabri Coal with having contravened ss 50 and 323 of the FW Act by having failed to pay to Mr Boxsell amounts to which it was said that he was entitled as wages under the EA. Specifically, they alleged that Boggabri Coal failed to pay to Mr Boxsell the totality of the wages to which he was entitled in respect of work that he performed at the mine on 30 September, 2 October and 3 October 2019.

3. By way of defence, Boggabri Coal maintained that it had not failed to pay to Mr Boxsell any amount that the FW Act obliged it to pay. The amounts that were claimed, it said, were not amounts to which Mr Boxsell was entitled because they were amounts that Boggabri Coal was obliged to deduct from his remuneration by operation of s 474(1) of the FW Act. That obligation, it was said, reflected the fact that, on the days in question, Mr Boxsell had engaged in industrial action that was not protected industrial action (within the meanings that the FW Act attributes to those phrases, which are explored in more detail below).

4. The appellants denied that Mr Boxsell had engaged in any such industrial action.  It was common ground that, if that denial were sound, the claims that were advanced would be established.  Mr Boxsell’s entitlement to the amounts that were claimed, then, turned upon consideration of a single question:  did Mr Boxsell engage in non-protected industrial action on the days in question?

5. The primary judge concluded that he did and dismissed the application:  Construction, Forestry, Maritime, Mining and Energy Union & Anor v Boggabri Coal Operations Pty Ltd [2021] FCA 719 (Jagot J). By the present appeal, the appellants maintain that her Honour was wrong so to conclude. For the reasons that follow, that is not so. The primary judge’s conclusion was, with respect, correct; and the appeal should be dismissed accordingly.

   THE PRESENT APPEAL

6. The facts relevant to the appeal are not in contest.  The primary judge summarised them without controversy as follows (emphases original):

   7 The applicants and respondent were covered by the Boggabri Coal Operations Pty Ltd 2016 Enterprise Agreement (2016 Agreement) which was an enterprise agreement made pursuant to the provisions of the [FW] Act.

   8 The respondent's employees who were members of the first applicant, the Construction, Forestry, Maritime, Mining and Energy Union (the Union), were authorised under the Act to take protected industrial action on a number of occasions in 2019, including insofar as the second applicant, Mr Boxsell, is concerned, for periods of two hours commencing as follows:

   •30 September 2019 - 8.00am, 12.00pm, and 4.00pm;

   •2 October 2019 - 8.00am; and

   •3 October 2019 - 12.00pm.

   (Together, the notified commencement times).

   9         Mr Boxsell was rostered to work on those days as follows:

   •30 September 2019 - 6.00am to 6.00pm with an authorised break from 10.56am to 11.52am;

   •2 October 2019 - 6.00am to 6.00pm; and

   •3 October 2019 - 6.00am to 6.00pm with an authorised break from 9.58am to 11.06am.

   10       On each day, Mr Boxsell was operating a dozer.

   11 Mr Boxsell, on the occasion of each protected industrial action and before the notified commencement times, took a series of steps which he described as the process of "parking up and finishing the process of working at the mine" including parking the dozer, logging out of a tablet system, turning the dozer off, and walking to a pick-up area to be transported to the administration area. He put the dozer into operational standby and turned the engine off (as detailed below) before each protected industrial action at the following times:

   •30 September 2019 - at 7.55am, 11.52am, and 3.53pm;

   •2 October 2019 - at 7.52am; and

   •3 October 2019 - at 11.51am.

   12       Mr Boxsell agreed that:

   (1) the steps he described as involved in "parking up and finishing the process of working at the mine" were those he took at the end of his shift;

   (2) on other occasions when the respondent directed him to cease work during a shift, he would act in accordance with the respondent's directions;

   (3) the respondent had not directed him to cease work at or before the notified commencement times;

   (4) he took the steps he described as involved in "parking up and finishing the process of working at the mine" before the notified commencement times for the purpose of engaging in the protected industrial action; and

   (5) if he had not been taking the protected industrial action on the days in question, he would not have taken those steps before the notified commencement times but, rather, would have continued to operate the dozer, performing clean-up duties on the excavator floor or dump where the hydraulic excavators were working.

   13       Mr Boxsell further agreed that:

   (1) he understood that by a memorandum dated 26 September 2019 (the memorandum) the respondent had required him to continue working as normal up until the notified commencement times;

   (2)he decided not to comply with that requirement; and

   (3) he spoke to and agreed with other employees who were Union members that they would not comply with the respondent's requirement that they continue working as normal up until the notified commencement times.

   14 The respondent, on the basis that the actions of Mr Boxsell before the taking of each protected industrial action were (non-protected) industrial action, deducted four hours' pay from Mr Boxsell's income for 30 September and 2 and 3 October 2019 as the respondent said it was required to do by s 474(l)(b) of the Act.

7. By their notice of appeal, the appellants advance nine grounds by which it is said that the primary judge erred, namely (errors and emphases original):

   1. The primary judgment erred in finding that the Second Appellant took industrial action as defined in s 19(1)(a) of the Fair Work Act 2009 (Cth) (FW Act) when parking up and finishing the process of working at the mine immediately prior to taking action protected by the provisions of the FW Act on 30 September 2019 and 2 and 3 October 2019 (relevant protected action).

   2. The primary judgment erred in deciding whether the Second Appellant took industrial action as defined in s 19(1)(a) of the FW Act by taking into account the irrelevant consideration whether the abovementioned parking up and finishing process was authorised by the Respondent.

   3. The primary judgment erred in considering whether the abovementioned parking up and finishing process was industrial action by taking into account the irrelevant consideration that this process was not action protected by the provisions of the FW Act.

   4. The primary judgment erred in considering whether the abovementioned parking up and finishing process was industrial action by not taking into account that the same process was engaged in by employees when work ceased in the middle of a shift and the employees were no longer required to be working at the mine.

   5. The primary judgment erred in excluding the potential for uncertainty arising from its construction resulting in the notification of differing commencement times for action protected by the FW Act.

   6. The primary judgment erred in finding that the Respondent did not authorise or agree to the Second Appellant engaging in the abovementioned parking up and finishing the process immediately prior to taking the relevant protected action for the purposes of s 19(2)(a) of the FW Act.

   7. The primary judgment erred in finding there was no evidence to support an inference that the Respondent authorised the Second Appellant to engage in the abovementioned parking up and finishing process immediately prior to taking the relevant protected action.

   8. The primary judgment erred in finding that the terms of the memorandum of the Respondent dated 26 September 2019 demonstrated that that the Respondent did not authorise the Second Appellant to engage in the abovementioned parking up and finishing process immediately prior to taking the relevant protected action.

   9.        For such other grounds as the Court thinks fit.

8. That multiplicity of grounds notwithstanding, the appeal in truth turns upon only a single question:  did the primary judge err by construing as “industrial action” the “parking up and finishing” activities in which Mr Boxsell engaged prior to his taking the protected industrial action that occurred on the three days in question?  If her Honour’s conclusion was correct, the appeal cannot succeed.  If it was incorrect, the appeal must succeed.

   THE LEGISLATIVE FRAMEWORK

9. Section 474(1) of the FW Act prohibits the making of payments in relation to periods during which employees engage in industrial action that is not protected industrial action. The section provides 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.

10. “Industrial action” is defined by s 19 of the FW Act, relevantly 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;

    …

    (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;

    …

11. “Protected industrial action” is a species of industrial action established under Div 2 of Pt 3-3 of the FW Act. It is industrial action that may be organised and taken to support claims that are advanced during bargaining for a proposed enterprise agreement. In order that industrial action might qualify as “protected industrial action”, various statutory requirements must be met. Key amongst them (for present purposes) are that:

    (1)the action must be authorised by a “protected action ballot” that was conducted pursuant to Div 8 of Pt 3-3 of the FW Act: FW Act, s 409(2); and

    (2)before a person may partake in it, his or her bargaining representative must provide to the relevant employer written notice of the action to be taken: FW Act, ss 413(4), 414(1).

12. Save for limited exceptions, organisations and employees that organise or take protected industrial action enjoy an immunity from suit: FW Act, s 415(1).

13. For present purposes, it is not controversial that:

    (1)the CFMMEU and Boggabri Coal were, at relevant times, engaged in bargaining for a proposed enterprise agreement to replace the EA;

    (2)the CFMMEU was Mr Boxsell’s bargaining representative for the purposes of that proposed enterprise agreement;

    (3)in support of the claims that it advanced during that bargaining, the CFMMEU organised and gave Boggabri Coal notice of protected industrial action that would be taken by its members, including on each of 30 September, 2 October and 3 October 2019; and

    (4)that protected industrial action would assume the form of two-hour work stoppages, which would occur at nominated times (as the primary judge particularised—above, [6]).

14. Although central to the appellants’ claims, it is unnecessary to rehearse ss 50 and 323 of the FW Act, nor any of the wage provisions within the EA. It suffices to note (and could hardly be doubted) that the EA required Boggabri Coal to pay to Mr Boxsell various amounts for the work that he performed at the mine, and that ss 50 and 323 of the FW Act gave statutory force to those requirements. The parties were agreed on the manner in which those amounts ought to be calculated; and there was no dispute between them as to the existence or nature of the statutory mechanisms by which the relevant obligations could (and were sought to) be enforced, nor as to the appellants’ standing to invoke them.

    DID MR BOXSELL TAKE UNPROTECTED INDUSTRIAL ACTION?

15. As has been stated, the sole issue to be determined on the appeal is whether the “parking up and finishing” activities in which Mr Boxsell engaged immediately prior to taking the protected industrial action that took place on the relevant days amounted to industrial action for the purposes of s 19 of the FW Act. If they did, there is no doubt that that industrial action was not protected, nor that Boggabri Coal was correct to deduct from Mr Boxsell’s remuneration the amounts that are claimed (being amounts referrable to four hours’ pay for each of the three days on which the relevant conduct took place).

16. The appellants maintain that the “parking up and finishing” activities that Mr Boxsell undertook prior to the commencement of his protected industrial action did not amount to industrial action because they did not involve “the performance of work…in a manner different from that in which it is customarily performed”.  They contend that it is (and was) customary to undertake those activities before stopping work.  Because he had indicated that he would stop work (and, thereby, engage in the protected industrial action of which notice had been given), the steps that he took preparatory to those stoppages were steps in which it was customary for him (and others like him) to engage.

17. By their written submissions on the appeal, the appellants contended:

    17. In taking the relevant steps before finishing work because protected industrial action was being taken, Mr Boxsell was performing work as normal.  He was not performing work in a manner different from that in which it was customarily performed or adopting a practice, the result of which was a restriction or limitation on, or a delay in, the performance of the work.

    18. The appropriate comparison was not with what would have happened hypothetically if work had not been finishing because of the protected action that was about to take place.  The appropriate comparison, in the context of finishing work prior to taking protected action, was with what Mr Boxsell would do when otherwise stopping work.  The second respondent performed work in a manner that was identical to that in which it is customarily and normally performed in those circumstances.  There was no change to standard work practices.

18. Those submissions are unsustainable.  They effectively presuppose that it is customary for employees to take protected industrial action.  That is self-evidently not so.  At the times that he was “parking up and finishing”—and, indeed, throughout the two-hour work stoppages that followed—Mr Boxsell was meant to be performing the productive mine work for which he was employed.  It is one thing to recognise that no action could be taken against him because of his failure during the period of protected industrial action to perform the work that he was engaged to perform; but it is another altogether to suggest that what occurred on the days in question was routine.  It was not.

19. In her reasons for decision, the primary judge made the following observations:

    20It does not matter what steps Mr Boxsell would normally take at the end of his shift or before an authorised break.  Nor does it matter that those steps themselves constitute a normal part of Mr Boxsell’s work in preparation for the end of his shift or the taking of an authorised break.  The commencement of the protected industrial action did not in fact coincide with the end of a shift or an authorised break for Mr Boxsell.

    21As a result, in deciding if Mr Boxsell took industrial action before taking the protected industrial action on each relevant occasion it is necessary to compare the work he would be customarily performing during his shift at those times and the work he in fact performed on the relevant days during those times.

20. Respectfully, those observations are sound.  The evidence was clear enough.  Customarily, Mr Boxsell would only engage in the relevant “parking up and finishing” activities when his work schedule required him to (or, on some occasions, when directed).  Typically, that would occur at the end of his shift or whenever he was to take a scheduled break.  On the occasions of present relevance, Mr Boxsell did not engage in those activities because he was required or directed to; he engaged in them because he wanted to participate in the protected industrial action that the CFMMEU had organised (and, more specifically, to commence doing so from a location other than where he would normally have been at the times at which it was scheduled to commence).  He was entitled to participate in that action; but not from a point in time prior to its advertised commencement.

1. The “parking up and finishing” steps that Mr Boxsell took in preparation for the protected industrial action in which he then engaged involved his working in a manner that differed from that in which he customarily worked. Those activities amounted to industrial action within the meaning attributed to that concept by s 19(1)(a) of the FW Act. Respectfully, the primary judge was correct so to find.

   THE ALTERNATIVE SUBMISSION:  WAS THE ACTION AGREED TO?

2. By way of alternative, the appellants also submitted that Mr Boxsell’s “parking up and finishing” activities were activities that Boggabri Coal “authorised or agreed to” in a manner contemplated by s 19(2)(a) of the FW Act. That authority or agreement was said to manifest in an acceptance at the mine that machines such as the “dozer” that Mr Boxsell was operating on the days in question would need to be parked and made safe whenever work on them ceased. By their written submissions, the appellants contended as follows (references omitted):

   26. It is submitted that, on the occasion of the taking of the relevant stoppages, Mr Boxsell was required to finish work.  In addition, if Mr Boxsell was finishing work, for whatever reason, it is submitted that he was required by the respondent to take the relevant steps.  It does not matter, as the primary judge erroneously took into account at [23] to [26], that there was no express authorisation or that ensuring that equipment was safe and secure could have occurred during the time notified for protected action.  An employee has an implied duty to work safely and to use care and skill in the performing his or her functions.  In doing so, an employee is working in accordance with the contract of employment with the employer and therefore with the agreement of the employer.

3. Immediate note might be taken of the appellants’ use there of the adjective “required”.  For reasons already set out, Mr Boxsell was not required to stop (or finish) work on the occasions that he did.  He was authorised or entitled to, in the sense that no action could be taken against him if he did; but there was no evidence that he was obliged to.  He wanted to.  That is very different.

4. Regardless, the point is made that Boggabri Coal required Mr Boxsell to “park up and finish” whenever he finished work, “for whatever reason” (whether through obligation, desire or otherwise).  That requirement was said to arise by implication from customary practice, and/or as an incident of Mr Boxsell’s contractual and statutory duties to work safely.

5. That contention must also be rejected, for at least two reasons.

6. First, it is not clear why, in order to discharge his obligation to work safely, Mr Boxsell had to stop the work that he was employed to perform at the premature points that he did.  As the primary judge correctly observed, there is no obvious reason why he could not safely have worked up until the times at which the protected work stoppages were scheduled to commence.

7. Second, the notion that Boggabri Coal “required” Mr Boxsell to act as he did sits most uneasily with the evidence; in particular, the memorandum that he received on 26 September 2019.  By that memorandum, Boggabri Coal made clear to Mr Boxsell that he was required to “…work as normal right up to the scheduled start of the stoppage”.  It continued:

   …if protected [industrial] action is called for 8am and finishes at 10am, you must continue to work until 8am…  If you stop operating or park up any time before 8am you will have 4 hours deducted for unprotected [industrial] action…

8. Those representations were not ambiguous and, on its face, the memorandum gave voice to a lawful direction.  It made clear Boggabri Coal’s expectation that productive work should continue at the mine “right up to” the times at which the protected industrial action was to commence.  By his own admission, Mr Boxsell well understood what was communicated.  He chose to defy what he correctly perceived to be the instruction that he was given.

9. The appellants contend that the 26 September 2019 memorandum did not obviously contemplate (or direct) that Mr Boxsell should work “right up to” the point that the protected industrial action was scheduled to commence; nor that he should do so as he normally would were he not intending to take protected industrial action.  That contention cannot be accepted.  The 26 September 2019 memorandum made that patently clear and the primary judge was, with respect, correct to conclude as much (as she did).

10. Even assuming that there might have been some custom or practice of “parking up and finishing” whenever work ceased (for any reason), here it was unambiguously overridden by the 26 September 2019 memorandum.  The result is that the appellants cannot succeed in their contention that the “parking up and finishing” activities of present relevance were activities that were authorised or agreed to by Boggabri Coal.  They were not, as the primary judge correctly found.

    CONCLUSION

11. Protected industrial action is a statutory mechanism designed to assist employees, employers and their representatives during periods of collective, enterprise-level bargaining. It is a simple enough concept: for the purposes of advancing their claims, the FW Act confers upon bargaining participants a right to subject their opponents to forms of coercive conduct. In order that they might attract that right, they must first clear some hurdles. If they do not do so, any action that is organised or taken runs the risk of being actionable (whether in contract or tort, or pursuant to statute).

12. The purpose for which the FW Act attaches conditions to the organising and taking of protected industrial action is self-evident: bargaining participants are not to be subjected to the consequences of such action (or deprived of the legal remedies that might otherwise attach to those consequences) except in tightly-defined circumstances. Here, the appellants seek to visit upon Boggabri Coal consequences additional to those in respect of which the FW Act afforded them immunity. Having lawfully subjected Boggabri Coal to the undoubtedly significant commercial consequences associated with stoppages of work, they presume also to require that it should pay for what they regarded as preparatory measures in respect of which no statutory immunity could properly have attached. To permit such a course would be to corrupt the important statutory scheme from which they sought to (and presumably did) benefit.

13. The primary judge was correct to characterise Mr Boxsell’s “parking up and finishing” activities as industrial action and to conclude that Boggabri Coal had correctly withheld from him the amounts that the appellants claimed. It follows that the appeal should be dismissed. In light of s 570(1) of the FW Act, Boggabri Coal did not seek an order for costs and none should be made.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Rangiah, O'Callaghan and Snaden.

Associate:

Dated:       23 November 2021