Construction, Forestry, Maritime, Mining and Energy Union v Boom Logistics Limited
[2018] FWCFB 6200
•8 OCTOBER 2018
| [2018] FWCFB 6200 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Construction, Forestry, Maritime, Mining and Energy Union
v
Boom Logistics Limited; WGC Crane Group Pty Ltd
(C2018/5215; C2018/5218)
DEPUTY PRESIDENT SAMS | SYDNEY, 8 OCTOBER 2018 |
Appeal against decision [2018] FWC 5634 of Deputy President Dean at Sydney on 6 September 2018 in matter number C2018/4742; Appeal against decision [2018] FWC 5101 of Deputy President Dean at Sydney on 31 August 2018 in matter number C2018/4637.
Introduction
[1] The Construction, Forestry, Maritime, Mining and Energy Union (the Appellant) has applied under s.604 of the Fair Work Act 2009 (Cth) (the Act) for permission to appeal and has appealed against two decisions and orders made by Deputy President Dean in WGC Crane Group Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union 1 and Boom Logistics Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union.2The first decision dealt with an application by WGC Crane Group Pty Ltd (WGC) and the second with an application by Boom Logistics Limited (Boom) for orders under s.418 of the Act in respect of notices given by the Appellant of purported protected industrial action, which the Respondents contended was not, or would not be protected action. This was because the Respondent maintained that the Appellant is engaging in a course of conduct that is pattern bargaining within the meaning of s.412. The appeal was listed for hearing on an expedited basis at the request of the Appellant.
Background
[2] The Appellant is a bargaining representative for certain employees employed by each WGC and Boom (collectively the Respondents). The Appellant has been advancing claims for proposed enterprise agreements with WGC and Boom.
[3] WGC is a mobile crane hire operator with sites at Smeaton Grange in South West Sydney and in Wollongong. Its operations at Smeaton Grange are focussed on projects whereas the Wollongong operation is focussed on maintenance. 3 Boom is a mobile hire crane operator with sites in Port Kembla, Newcastle and the Hunter Valley. The operations at the various sites are said to be substantially different.4
[4] On 27 April 2018, the Appellant notified WGC that it wished to commence bargaining and provided it with a draft agreement. 5 Other than some additional claims in relation to a proposed agreement with Boom, and some differences in particular provisions, the preponderance of the terms of the draft agreement given to WGC were identical to the corresponding terms of the draft agreement given by the Appellant to Boom, including the rates of pay, increases in the rates of pay, operative dates for the increases, and nominal expiry dates.6 On 18 May 2018, the Appellant applied for a protected action ballot order in relation to employees covered by the proposed agreement with WGC, which was later withdrawn.7 On 6 July 2018, the Appellant again applied for a protected action ballot order which was refused on the basis that the Commission Member dealing with the application was not satisfied the Appellant had been and was genuinely trying to reach an agreement.8 On 27 June 2018, WGC provided the Appellant with its proposed agreements to cover employees at its Smeaton Grange and Wollongong sites.9 Scope of the proposed agreement or agreements appears to be an issue as between the Appellant and WGC.
[5] In September 2017, the Appellant notified Boom that it wished to commence bargaining and it provided draft agreements to replace three existing agreements. 10 Initially, Boom did not agree to commence bargaining, but subsequently agreed to do so in February 2018. At around this time, the Appellant provided Boom with a single draft proposed agreement that would apply at all Boom Logistics sites. After some meetings between the bargaining parties, Boom wrote to the Appellant on 15 June 2018 outlining its response.11On 2 July 2018, the Appellant provided a response and an amended draft proposed agreement.12 A comparison between this draft proposed agreement and that given to WGC is noted in the previous paragraph. Counter proposals and further correspondence were thereafter exchanged.13
[6] On 6 July 2018, the Appellant applied for a protected action ballot order in respect of Boom employees. 14 The Appellant, for the third time, applied for a protected action ballot order in respect of WGC employees on 27 July 2018.15 Orders were made by the Commission on 13 July 2018 in the case of employees of Boom whom the Appellant represents16 and on 30 July 2018 in the case of employees of WGC represented by the Appellant.17 The Australian Electoral Commission declared the results of each ballot on 17 August 2018. The nature of the proposed industrial action for which authorisation was sought and obtained in each ballot was:
1. An unlimited number of stoppages on the performance of work between 30 minutes and up to and including 24 hours
2. An unlimited number of indefinite strikes
3. An unlimited number of indefinite or periodic bans on overtime
4. An unlimited number of indefinite or periodic partial work bans
[7] On 20 August 2018, the Appellant gave written notice of intended industrial action to WGC under s.414 of the Act in the form of an “indefinite strike” of employees to commence on 27 August 2018. On 22 August 2018, the Appellant also gave written notice of intended industrial action under s.414 on Boom in the form of an “indefinite strike” of employees to commence on 29 August 2018. On 21 August 2018, WGC made application for orders under s 418. A s.418 application was also filed by Boom on 27 August 2018. Both WGC and Boom sought the orders relevantly, on the ground that the Appellant is engaged in a course of conduct that is pattern bargaining within the meaning of s.412, with the consequence that the notified industrial action was not or would not be protected industrial action. In each matter, the Deputy President made interim orders. 18
Consideration
The decisions and orders the subject of these appeals
[8] In dealing with the substantive applications, the Deputy President determined that the Appellant was, for the purposes of s.412(1)(b) of the Act, engaged in a course of conduct that involves seeking common terms to be included in proposed enterprise agreements with WGC and Boom. The matters in s.412(1)(a) and (c) were not in dispute. 19 The Deputy President construed the phrase ‘seeking common terms’ as not requiring that all terms in the proposed agreements with WGC and Boom needed to be common, but only that common terms needed to be sought to be included in both agreements.20
[9] The Deputy President also concluded that ‘common’ did not require all the terms of the proposed agreements to be the same or identical. 21 The Deputy President found that there were differences in some of the terms sought by the Appellant to be included in the proposed agreements with WGC and Boom, but concluded that these differences did not pertain to matters of substance and that the ‘substantive provisions’ sought to be included in the proposed agreements were the same.22 In the result, the Deputy President concluded that the Appellant was engaged in a course of conduct that was pattern bargaining for the purposes of s.412(1).
[10] The Deputy President next considered whether the Appellant was genuinely trying to reach agreement for the purposes of s.412(2) of the Act, having regard to the identified but non exhaustive matters in s.412(3). The Deputy President determined that to “genuinely try” means making a real, true and authentic attempt to achieve or accomplish something. 23 The Deputy President concluded the Appellant is not genuinely trying to reach agreement with either Boom or WGC.24
[11] That the Appellant had given notice that it was organising, and relevant employees would take industrial action in the form of an “indefinite strike” in respect of each of WGC and Boom, was not in dispute. In each case, the Deputy President made final orders which relevantly provided as follows:
3. INDUSTRIAL ACTION MUST STOP, NOT OCCUR AND NOT BE ORGANISED
3.1 The CFMMEU must not organise any industrial action involving any of the Employees.
3.2 Each Employee must:
(a) immediately stop engaging in, or threatening to engage in, industrial action;
(b) not continue, recommence or organise any industrial action during the period of operation of this Order.
3.3 For the purposes of this Order, the expression ‘industrial action’ means action of a strike or other stoppage of work but does not include the following:
(a) action or conduct by Employees that is authorised or agreed to by or on behalf of the Company; or
(a) action by an Employee if:
(i) the action was based on a reasonable concern by 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 ofhis 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.
…
5. TERM AND DATE OF EFFECT
This order shall come into effect at midnight on 31 August 2018 25 and shall remain in force for a period of three months.
[12] Subsequently, the Appellant applied to the Deputy President to revoke the s.418 orders under s.603 of the Act on the grounds of changed circumstances which were rejected on the basis that this Full Bench had scheduled an expedited hearing of the appeal. 26 Separate applications were made under s.459(3) to extend the period within which the ballot authorised protected action which had not been taken, can be taken. The periods were extended by the Deputy President in each case by a further 30 days.27
Grounds of appeal
[13] The principal challenge to the decisions and orders in each appeal concerns the Deputy President’s conclusion that the Appellant’s course of conduct engaged with s.412(1) of the Act. It also challenges that the s.412(2) exception was not made out. The Appellant also contends that the orders made were not directed to the industrial action the subject of its notices, and that the duration of the orders was beyond jurisdiction as the period of operation of each order was unreasonable, irrational and plainly unjust. The Notices of Appeal are in substantially the same terms and contain 10 grounds of appeal. These grounds may conveniently be summarised as follows.
[14] By grounds 1 and 2 of the Notices of Appeal, the Appellant contends that Deputy President erred in failing to accept that it is necessary for all the terms sought to be included in of the proposed agreements be identical for the purposes of s.412(1)( b) of the Act. As a consequence, the Deputy President wrongly concluded that the Appellant was engaged in a course of conduct that was pattern bargaining.
[15] By grounds 3 – 5 of the Notices of Appeal, the Appellant contends that the Deputy President proceeded on the incorrect basis that a bargaining representative could not be genuinely trying to reach agreement unless it shifted its position or made substantial concessions on matters of substance in bargaining. In the result, the Deputy President wrongly concluded that the Appellant was not genuinely trying to reach agreement for the purposes of s.412(2) of the Act.
[16] By ground 6 of the Notices of Appeal, the Appellant contends that the Deputy President erred because she failed to consider whether the Appellant is meeting the good faith bargaining requirements in s.228 of the Act. Grounds 7 and 8 merely set out the consequences that flow from the errors identified by grounds 1 – 6.
[17] Grounds 9 and 10 of the Notices of Appeal concern the orders made and contend that because the Deputy President did not identify the industrial action found to be threatened, or the industrial action to be stopped by the orders, and because the period of operation of the orders was three months which in the circumstances was unreasonable, irrational and plainly unjust, the orders were beyond jurisdiction and are invalid.
[18] At the hearing of the appeal, the Appellant did not press ground 6. 28
Permission to appeal
[19] We are persuaded that the appeal grounds identified as grounds 1-5 advanced by the Appellant in the Notices of Appeal raise issues of importance and general significance about the proper construction of s.412 of the Act which have not previously been the subject of any consideration by a Full Bench of this Commission. As Senior Counsel for the Respondents properly observed, the question as to the proper meaning of the phrase “seeking common terms to be included in 2 or more of the agreements” is not an easy one. 29 We are also persuaded that grounds 9 and 10 of the Notices of Appeal concern the proper exercise of the Commission’s power to make orders under s.418 and that there is a public interest in ensuring that orders made under s.418 are made within the permissible bounds of the power and not otherwise. For these reasons, we are satisfied that grounds 1 – 5, grounds 7 – 8 to the extent that they relate to the first 5 grounds, and grounds 9 and 10 enliven the public interest with the consequence that permission to appeal must be granted and we do so.
[20] We propose in this decision to deal only with grounds 9 and 10. The other grounds, particularly grounds 1 and 2, are complex and will require some lengthy consideration before we are able to announce our decision. As a consequence, we are not in a position to decide those grounds of appeal before the periods within which the Appellant may take protected industrial action authorised by the protection action ballots expire. The orders made by the Deputy President as currently framed would prevent the taking of some of the action authorised and would leave uncertain the capacity of the Appellant to organise and for its members to take other forms of ballot authorised industrial action even if the Appellant’s approach to bargaining no longer involves pattern bargaining (noting of course the question whether it had engaged in pattern bargaining is disputed by the Appellant). It was for this reason that an expedited hearing of the appeal was accommodated.
Grounds 9 and 10
[21] We will proceed to examine grounds 9 and 10 of the Notices of Appeal on the basis that the Deputy President was correct (without deciding that issue) in concluding that the Appellant and engaged in a course of conduct that is pattern bargaining within the meaning of s.412 of the Act with the consequence that the industrial action in relation to which orders were sought by WGC and Boom was not or would not be protected industrial action.
[22] The operative aspects of each of the orders made by the Deputy President are in substance identical. The orders precluded the Appellant from organising ‘industrial action’ involving any of the Employees. 30 “Industrial action” is defined in the orders, relevantly, as “a strike or other stoppage of work”.31 The orders also require that “Employees” “immediately stop engaging in, or threatening to engage in, industrial action”.32 The orders also require that “Employees” “not continue, recommence or organise any industrial action”. The period of operation of the orders, and therefore the period of prohibition of the relevant conduct, is 3 months from 31 August 2018 in the case of the WGC order, and from 6 September 2018 in the case of the Boom order.33
[23] As we have earlier observed, the relevant industrial action was that which was identified in the notices given by the Appellant to each of WGC and Boom. The Respondents contended in their applications for orders that the industrial action identified in the notices was being organised by the Appellant as the bargaining representative of the relevant employees and that the identified industrial action was threatened industrial action. 34 That the identified industrial action was being organised by the Appellant and that the identified industrial action was threatened appears not to have been contested before the Deputy President. Assuming the correctness of the Deputy President’s conclusion that the industrial action complained of was not protected industrial action, the Deputy President was entitled, on the material before her, to conclude that it appeared to her that industrial action by employees that would not be protected industrial action is threatened, and is being organised by the Appellant and by the employees.
[24] The Appellant contends that the Deputy President’s orders did not identify and were not directed to the industrial action contained in the notices. It contends that the orders preclude the Appellants and relevant employees from organising or engaging in any strikes or stoppages of work generally. It contends that the orders also require employees to “stop engaging in industrial action and not to continue or to recommence any industrial action”, in circumstances where the Deputy President made no finding and no evidence was led that industrial action was happening or had occurred. It contends that the Deputy President did not have capacity to order that industrial action stop, not continue or not start again.
[25] The Appellant also contends that the period of operation of an order and consequently the period of prohibition of the conduct described in the orders should be directed to and have a rational or reasonable relationship with the industrial action of which notice was given. It contends in effect that the period chosen by the Deputy President bears no relationship with any of the circumstances that were before her. In particular, they bear no relationship to the industrial action that was threatened and the reason for the Deputy President determining that the industrial action would not be protected. The decision to assign a period of three months as the period of operation of the order was unreasonable in the sense discussed in House v The King. 35
[26] The Respondents contend that no complaint was made about the orders before the Deputy President, even though they reflected the draft orders sought by the Respondents and also reflected the interim orders made by the Deputy President. They contended that they had specifically addressed the form of orders in their submissions before the Deputy President and that the Appellant did not take issue with those submissions, nor did it contend that the orders proposed went beyond the industrial action that was being organised and threatened, nor did it contend that the period of operation of three months was unjustified or unreasonable. Consequently, the Appellant should not be permitted to raise this matter for the first time on appeal.
[27] In any event, the Respondents contend that it is wrong to suggest that the orders do not identify the industrial action as the orders identify the prohibition of “a strike or other stoppage of work” which is made in response to the threatened stoppage, namely “an indefinite strike”. The Respondents also contended that in the circumstances of this case, namely the likelihood of the period within which ballot authorised industrial action can be taken is due to expire, and the prospect that a further protected action ballot would be required, there is little difference between a period of one month, two months or three months. Therefore, it cannot be said that period of three months is so long as to be unreasonable, irrational or plainly unjust. Moreover, the Respondents contend that as the notified industrial action was an indefinite strike, there was no alternative but to make an order for an extended, but finite, period. It follows that three months is not obviously an inappropriate period in the circumstances.
[28] It is to be accepted that the Appellant did not engage with the form of orders during the proceedings before the Deputy President, and in particular did not criticise either the description of the industrial action or the period of the operation of the orders. In the usual course, an Appellant would not be permitted to advance an argument it had an opportunity to advance at first instance but elected not to do so. However, the failure by the Appellant to engage with the form of orders proposed to be made must be viewed in the context of the Appellant’s opposition to any order being made because it contended that it was not engaging in pattern bargaining. Moreover, grounds 9 and 10 of Notices of Appeal raise important issues about the exercise of the Commission’s power under s.418 and we therefore propose to deal with these grounds of appeal.
[29] Section 19 of the Act contains a definition of industrial action as follows:
Meaning of industrial action
(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.
Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited , PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.
(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.
(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.
Note: In this section, employee and employer have their ordinary meanings (see section 11).
[30] Section 418 provides the following:
FWC must order that industrial action by employees or employers stop etc.
(1) If it appears to the FWC 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;
the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period ) specified in the order.
Note: For interim orders, see section 420.
(2) The FWC 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, the FWC does not have to specify the particular industrial action.
(4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:
(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or
(b) which has not ended before the beginning of that stop period; or
(c) beyond that stop period;
the FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.
[31] As should be evident from the structure of s.418(1), in determining whether an order must be made, the Commission is required to consider whether industrial action is happening, is threatened, impending or probable, or is being organised by one or more employees or employers. If so, the Commission is to consider whether that industrial action is not, or would not be, protected industrial action. If it is not or would not be protected action, the Commission is to make an order that the industrial action stop, not occur or not be organised, as the case may be, for a specified period. 36
[32] In Esso Australia Pty Ltd v The Australian Workers’ Union 37 Buchanan J with whom Siopis J agreed38 considered the operation of s.418 of the Act and observed:
39 Similarly, orders made under s 418 are confined within the statutory limits for which the power is granted. The order must relate to the industrial action which triggers the statutory obligation.
40 Without resort to history or authority, therefore, I would construe s 418(1) as limited to orders where, so far as the circumstances permit, the order operates in relation to, and is confined to, the industrial action (existing or potential) which the FWC has decided is not, or would not be, protected industrial action, having regard to the reasons for that conclusion which may be quite particular.
41 What, then, of history and authority?
42 In the Workplace Relations Act 1996 (Cth) (“WR Act”) when it was enacted, s 127(1) provided a power to the Australian Industrial Relations Commission (“AIRC”), similar to that in s 418 of the FW Act, but referring only to industrial action, without reference to protected industrial action. In Metal Trades Industry Association of Australia v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [1997] FCA 1355; (1997) 77 IR 87 (“MTIA”), Marshall J considered an order which was made simply prohibiting industrial action as defined by s 4 of the WR Act. Marshall J refused to grant an interim injunction restraining breach of the order, in part because (at 92):
… the order is void because it fails to adequately specify the particular conduct which it seeks to prohibit. …
43 By later amendments to the WR Act in 2006, the effect of s 127 was replaced by s 496 of the WR Act. Section 496(1) and (9) are a sufficient parallel with s 418(1) and (3) of the FW Act. In Transport Workers’ Union of New South Wales v Australian Industrial Relations Commission (2008) 166 FCR 108 (“TWU”), Gray and North JJ considered the effect of s 496(1) of the WR Act. An order had been made which simply prohibited industrial action by reference to the definition of that term in s 420 of the WR Act, although excluding protected industrial action. The AIRC had not found that industrial action was threatened etc; but that it was occurring. Gray and North JJ said (at [21] and [24]):
21 In the present case, it appeared to Senior Deputy President Hamberger that industrial action, not being protected action, was happening. So much is evident from [6] of the Senior Deputy President’s reasons. There was no finding that it appeared to the Commission that industrial action was threatened, impending or probable, or was being organised. On that basis, the Commission was limited to making an order that the industrial action stop. …
…
24 For present purposes, it is enough to say that, in the absence of any finding other than that industrial action, not being protected action, by employees was happening, the Commission had no power to go beyond the making of orders that the industrial action stop. Without it appearing to the Commission that industrial action was threatened, impending or probable, the Commission was under no duty, and had no power, to make any order that the industrial action not occur. Similarly, in the absence of a finding that the industrial action was being organised, the Commission had no duty, and no power, to make an order that the industrial action not be organised.
44 Later, their Honours said (at [39]):
39 It is also necessary to bear in mind that the duty of the Commission to make orders is confined by s 496(1) of the WR Act to orders that “the industrial action stop, not occur and not be organised”. The reference to “the” industrial action is a reference to industrial action that appears to the Commission to be happening, to be threatened, impending or probable, or to be in the process of being organised. It is necessary for the Commission to identify the industrial action that appears to it to be happening, threatened, impending or probable, or being organised, and to make orders that that industrial action stop, not occur or not be organised, as the case may be. Section 496(1) contains neither a duty nor a power to make orders that any act or omission that might possibly fall within the definition of “industrial action” in s 420 of the WR Act stop, not occur or not be organised. The Commission’s duty, and power, is limited to the industrial action that is the subject of the application before it. (Emphasis added)
45 One difficulty with their Honours’ analysis and conclusion (which was to a similar effect to Marshall J in MTIA) is that no reference was made to s 496(9). Section 496(9) appeared to have been introduced to address, and overcome, the conclusion of Marshall J in MTIA. The absence of any discussion of its operation in TWU makes that latter case an unsafe authority on this issue, as is the judgment in MTIA.
46 However, those difficulties do not attend the judgment under appeal, where the primary judge dealt with all of them.
47 Before I turn to that, I should mention that reference was made in argument to what was said about s 418(3) of the FW Act (the counterpart of s 496(9) of the WR Act), in the Explanatory Memorandum:
1689. In making an order to stop or prevent industrial action, FWA does not have to specify the particular industrial action (subclause 418(3)). This is intended to allow FWA to make effective orders that do not require the separate identification of each particular instance of industrial action.
48 I regret to say that, like so many paraphrases of this kind, this statement does not assist much although it does to my mind suggest that some specificity was contemplated – e.g. sufficient to disclose the legal operation of the order and provide sufficient certainty to allow compliance with it.
49 The FWC orders considered by the primary judge, to some extent or other, prohibited industrial action by reference to the statutory definition (here s 19 of the FW Act).
50 Relevant parts of the primary judge’s reasoning about the construction of s 418(1) and (3) included the following (at [107]-[111], [114]-[116]):
107 … the obligation to make orders, expressed in the main clause of the sentence which constitutes subs (1), is to be read distributively. That is to say, for example, unless the Commission had found that unprotected industrial action was being organised, the Commission would have no power to order that it not be organised. This is one aspect of the view about s 496(1) taken by Gray and North JJ in Transport Workers’, notwithstanding that this dimension of the subsection was then expressed less clearly than it is in s 418(1) of the FW Act: see (166 FCR at 120-121 [17]).
108 … subs (3) permits the Commission to frame its order in a way that does not “specify the particular industrial action”. That is to say, it is permissible for the industrial action to be identified without specification of whether it is, or would be, a work stoppage, a ban, or something else. But that does not mean that the Commission can go beyond the findings made under subs (1). Nor, in my view, does it mean that the Commission can frame its order by reference to “industrial action”, without more. The order which it is required to make may not extend beyond “the” industrial action which has been found to be happening, to be threatened, etc.
109 If these observations are sound ones, the question will inevitably arise: if the Commission is limited to the industrial action which was the subject of its findings under s 418(1), but is not required to specify the form that the industrial action being prohibited by its order might take, how is it to be expected to identify the subject-matter of its prohibition? A ready, but rather unsatisfying, answer to that question would be to say that the operation of s 418 in the way I have expressed it is sufficiently clear to make recourse to practical issues such as this both unnecessary and impermissible as on matters of construction. A more satisfying answer would be to recognise that the section contemplates that the Commission must, or at least will normally, identify the industrial action in some way. This may involve specifying the particular industrial action: the existence of subs (3) does not mean that the Commission may not so proceed. Or it may make use of some other identifier which makes sense to the parties in the facts of the case, such as the purpose of the action, the place in which it is to occur, the timing of the action, or something else. The point here is that the existence of subs (3) does not, as a matter of construction, involve the proposition that the Commission no longer need identify the industrial action which is being prohibited by its order, or the conclusion that, in making its order, the Commission may travel beyond the scope of “the” industrial action, the subject of its findings under subs (1).
110 … Although the issue does not arise for resolution in the present case and I have not been addressed upon it, I would offer the tentative view that the mere inclusion of a term in an order that the order did not apply to protected industrial action, made in circumstances where the Commission had not made a positive finding that the industrial action which it had found to be happening etc was not, or would not be, protected industrial action, would not be within power under the section.
111 Applying the foregoing legal analysis to the facts of the case, I commence with the order made by the Commission on 17 February 2015 (see para 38 above). Reading the definition of “industrial action” (cl 3.1) into the operative provision (cl 4.1), the order prohibited the respondent from organising, and the employees from engaging in, any industrial action within the definition in s 19 of the FW Act, including action of the kinds referred to in paras (a)-(d) of cl 3.1, but excluding action of the kinds referred to in paras (e)-(g) of that clause. For the reasons I have given above, I consider that, if the definition had referred only to the overtime ban the subject of para (d) – the subject, and the only subject of the Commission’s findings under subs (1) – the order would have been within power under s 418. On the other hand, if it had referred only to the definition in s 19, or to that definition together with the inclusions set out in paras (a)-(c), the order would have been beyond power. Either way, in my view, the exclusionary provisions of paras (e)-(g) would not affect the result.
…
114 I would add that the specific inclusion of industrial action of the kind referred to in cl 3.1(d) bespeaks an intention on the part of the Commission that, whatever else might be conveyed by the terms of the order, there should be no doubt but that that industrial action was caught thereby. It is as though the Commission contemplated that there might be persons bound by the order who were unaware of the terms of s 19 of the FW Act, or to whom the legislative jargon used in paras (a)-(c) might not be familiar. The reference to the overtime ban at Longford in para (d) had the purpose, I infer, of putting up in lights the specific matter which had brought the parties to the Commission. There is every reason to suppose that the Commission intended that this aspect of the order, if no other, should operate.
115 It will be clear from my reasons above that I take the view that the Commission’s order of 5 March 2015 had, and has, no valid operation.
116 With respect to the Commission’s order of 6 March 2015, the position is, mutatis mutandis, the same as that reached above in relation to the order of 17 February 2015. The Commission had found that the respondent was organising, and that its members were implementing, bans on equipment testing, air freeing and leak testing. Paragraphs (a) and (b) of cl 3.1 of the order referred specifically to industrial action of that kind and, by reason of the operation of s 46(2) of the AI Act, the order was within power to that extent. The order did, however, have no wider valid operation. (Bold emphasis added.) (Italic emphasis in original.)
51 The primary judge thus applied a “blue pencil” test confining two orders within the statutory limits which he had identified, and preserving their operation with respect to the industrial action which had been adequately identified by the FWC . . .
52 Orders which lacked that kind of specificity were found to be invalid.
53 The orders set out above, which the primary judge found to be valid, are accepted to have been validly made, at least to that extent. Esso argued that s 418(3) required that they not be so confined but in my view they provide a very good illustration of the practical operation of s 418(3) which supports the approach taken by the primary judge.
54 The orders which survived identify industrial action by its nature and character. There is no doubt that the identification of that industrial action in that way is meaningful for the parties. At the same time, it may fairly be said that the orders do not (in this instance) identify the “particular industrial action” which will be prevented by their terms. It should be emphasised that orders of this kind may descend to that level of particularity if the FWC thinks it appropriate, but they need not do so. What they may not do is move beyond the industrial action identified as the foundation for making the order as required by s 418(1).
55 In my respectful view, the approach taken by the primary judge was the correct one. The orders made by the FWC were valid only to the extent identified. 39
[33] It seems to us clear from the above analysis that the power to make an order under s.418 is exercisable if the Commission concludes that the existing or potential industrial action is not, or will not be protected and then to order that the particular existing or potential industrial action stop, not occur or not be organised as the case requires. This is so despite s.418(3), the effect of which is not to require the Commission to specify the particular industrial action in any order that it makes. The power to make an order is not at large but is conditioned on the Commission being satisfied as to the existence of the relevant state of affairs under s.418(1) (a), (b) and/or (c). An order under s.418 must be directed to the specific industrial action identified and it must be aimed at the particular industrial action, existing or potential, that the Commission has found is, or would not be protected action.
[34] The orders, so far as they are directed to the Appellant, require that it “must not organise any industrial action involving any of the Employees.” “Industrial action” for the purposes of each order “means action of a strike or other stoppage of work . . .”. The orders plainly distinguish action which is a “strike” from action that is an “other stoppage of work”. A similar distinction is to be found in the definition of industrial action in s.19 of the Act reproduced earlier, which relevantly defines industrial action to mean “a failure or refusal by employees to attend for work” which is apt to describe a “strike”, and “a failure or refusal to perform any work at all by employees who attend for work” which is apt to describe a “stoppage of work”. 40 The word “other” appears to us to be used in the orders as an adjective to refer to the proscribed conduct (stoppage of work) as different or distinct from the proscribed conduct already mentioned, that is, a strike. There was nothing in the material before the Deputy President which supported the proscription of an “other stoppage of work” that was distinct from a “strike”. The industrial action of which notice was given was “an indefinite strike”. Whilst ordinarily a description of a strike as a stoppage of work might be apt, where as here the stoppage of work is described disjunctively from a strike as an “other stoppage of work”, this suggests, as we have already observed, something distinct or different to the strike for which notice was given. The evidence and material before the Deputy President simply did not support a conclusion that beyond an “indefinite strike” there was any other stoppage of work that was happening, or threatened, impending or probable, or being organised. It follows, in our view, that the Deputy President erred in making an order extending to any “other stoppage work” beyond the indefinite strike.
[35] Similarly, the only material before the Deputy President was that an indefinite strike was being organised and threatened. The material did not disclose that the indefinite strike had begun or was happening. That being the case, the material did not support an order directed to employees that they “stop” engaging in industrial action or that they “not continue” or “recommence” any industrial action during the operation of the orders. Orders which prohibited organising an indefinite strike and threatening an indefinite strike were all that were properly available to the Deputy President on the material before her. In any event, that would have been sufficient to prevent a re-occurrence of the proscribed conduct, as once the date for the commencement of the threatened industrial action had passed, a further notice would need to have been given by the Appellant. Whilst the orders remain in operation, the giving of such a notice threatening an indefinite strike would have been a contravention of the relevant order.
[36] We do not however, accept that the prohibition of industrial action in the form of “a strike” was beyond power. It is uncontroversial that on the evidence before the Deputy President she was able to conclude that a strike was being organised and was threatened to commence on 27 August 2018 in relation to relevant employees employed by WGC and on 29 August 2018 in relation to relevant employees employed by Boom. So far as the Deputy President’s orders were directed to the Appellant requiring it to stop organising a strike and to employees to stop threatening and not to organise a strike, we consider those orders to have been validly made.
[37] We turn then to the question of the duration of the orders. It is plain from the decisions that the Deputy President considered that the industrial action that was being organised and that was threatened was not protected action because the Appellant had engaged in a course of conduct that was pattern bargaining, as described in s.412(1) Act and that the Appellant had not satisfied her that it was genuinely trying to reach an agreement so as to engage the exception in s.412(2).
[38] It is, we consider self-evident, given the basis for concluding that the industrial action was not or would not be protected action, that the circumstances which led to that conclusion might change over a relatively short period. This might occur, for example, by the Appellant altering in a significant way the terms that it seeks to be included in one or other of the proposed agreements the subject of bargaining with WGC and Boom. The Appellant might also or in the alternative, take steps to engage in bargaining discussions with one or other of WGC and Boom aimed at addressing the matters identified in s.412(3). Putting to one side the Appellant’s construction of s.412(1)(b), it would be unsurprising in the face of the findings made by the Deputy President that the Appellant might take steps to alter the terms that is seeking to include in a proposed agreement and/or alter the approach that it takes in bargaining with WGC and with Boom in order that its conduct is no longer caught by s.412. The prospect that further industrial action taken, organised or threatened pursuant to the ballot authorisation would not be protected industrial action by reason of a course of conduct that is pattern bargaining was, by no means inevitable or certain. The circumstances which led the Deputy President to have concluded that the organised and threatened industrial action would be unprotected industrial action could quickly change and yield a different conclusion. These are considerations that are, in our view, plainly relevant to assessing the duration of any order proscribing conduct relating to a strike which appears to be unprotected industrial action by reason of a course of conduct of the Appellant that is pattern bargaining.
[39] There is a relevant difference between s.418(1) of the Act and the former s.496(1) of the Workplace Relations Act, in that the words “for a period (the stop period) specified in the order” were not present in the former provision. We agree with the observation made by a Full Bench of this Commission in United Voice v Foster's Australia Limited t/a Carlton and United Breweries Limited 41 that this does not represent the conferral of a general and unconfined discretion as to the period in which the order is to operate, since the order must still be one that the industrial action stop, not occur or not be organised (as the case may be). The Full Bench also said:
…Its terms, including theperiod of operation, must still be directed to that purpose. That s.418(1) was not re-drafted (compared to the former s.496(1)) in order that the approach stated by the majority in Transport Workers’ Union of New South Wales v Australian Industrial Relations Commission no longer apply is confirmed by the Explanatory Memorandum 18, which discloses no such intention and states that s.418(1) “largely replicates” s.496(1). We also note that it is evident that another alteration to the drafting of s.418(1) as compared to the former s.496(1), namely the inclusion of the words “as the case may be”, was intended to confirm and continue the approach taken by the majority in Transport Workers’ Union of New South Wales vAustralian Industrial Relations Commission to the construction of the former s.496(1). Theinclusion of the “stop period” reference in s.418(1) appears to be a legislative drafting device which connects with the new ancillary provision in s.418(4). Provisions of a s.418(1) order specifying its period of operation must therefore serve the purpose of the exercise of the power in the same way as other provisions of such an order. 42
[40] We are unable, respectfully, to discern any rational connection between the period of operation of the orders and the purpose for which they were required to be made. It does not appear to us, on the face of the decisions, that the Deputy President took into account the reason that the industrial action being organised and threatened is not or would not be protected industrial action or the fact that the circumstances are capable of change within a relatively short period, to assess the length of the period of operation of the orders. In the circumstances of this case, s.418(1) only required orders to operate for a period sufficient to ensure that the strike not be organised and that the threatened strike not occur. It appears to us that a period of operation of three months was clearly excessive given the circumstances which led to the Deputy President concluding that the industrial action organised and threatened was or would be unprotected industrial action. Consequently, and for the reasons given, we consider that the Deputy President was in error in fixing a period of operation of three months in respect of each order. In our view, a period of operation of two weeks in the circumstances would be more than sufficient to ensure the strike not be organised and that the threatened strike not occur. It would also give the Appellant time to modify or moderate its conduct vis-à-vis bargaining, without inappropriately interfering with the right of the bargaining representative and the employees whom it represents access to an otherwise legitimate form of pressure exercisable during bargaining.
Conclusion
[41] For the reasons stated, we uphold the appeal on grounds 9 and 10 and we propose to vary the decision and orders made by the Deputy President to the extent necessary to give effect to our decision.
[42] We will separately and at a later date issue our decision on the remaining grounds of appeal to which we have earlier referred.
Orders
[43] We order that:
(a) Appeal grounds 9 and 10 be upheld.
(b) The decisions in [2018] FWC 5634 and [2018] FWC 5101 be varied to the extent identified in our decision.
(c) The order in PR700003 be varied as follows:
(i) In clause 3.2(a) by deleting the words and punctuation “engaging in, or”; and “,” where second appearing;
(ii) In clause 3.2(b) by deleting the words and punctuation “continue, recommence, or”;
(iii) In clause 3.3 by deleting the words “or other stoppage of work”; and
(iv) In clause 5 by deleting the words “three months” and in their place inserting the words “two weeks”.
(d) The order in PR700177 be varied as follows:
(i) In clause 3.2(a) by deleting the words and punctuation “engaging in, or”; and “,” where second appearing;
(ii) In clause 3.2(b) by deleting the words and punctuation “continue, recommence, or”;
(iii) In clause 3.3 by deleting the words “or other stoppage of work”; and
(iv) In clause 5 by deleting the words “three months” and in their place inserting the words “two weeks”.
DEPUTY PRESIDENT
Appearances:
H Borenstein QC and P Boncardo of Counsel for the Appellant.
I Taylor SC and O Fagir of Counselfor the Respondents.
Hearing details:
2018.
Sydney:
October 3.
Printed by authority of the Commonwealth Government Printer
<PR701080>
1 [2018] FWC 5101
2 [2018] FWC 5634
3 WGC Appeal Book, p.757–8 at [10]
4 Boom Appeal Book, p.79 at [4]-[20]
5 WGC Appeal Book, p.309 at [6]
6 Boom Appeal Book, p.997
7 WGC Appeal Book, p.310 at [9]-[10]
8 [2018] FWC 5101 at [26]
9 Ibid at p.312
10 Boom Appeal Book, p.81 at [21]
11 Ibid, p.82 at [29]
12 Ibid at [30]
13 Ibid at [34]-[36]
14 [2018] FWC 5634 at [25]
15 [2018] FWC 5101 at [31]
16 [2018] FWC 4122; Order PR608944
17 [2018] FWC 4461; Order PR609525
18 Interim Order PR620063 dated 22 August 2018; Interim Order PR620262 dated 28 August 2018
19 [2018] FWC 5634 at [32] and [66] –[67]; [2018] FWC 5101 at [37] and [61] –[62]
20 [2018] FWC 5634 at [57](a); [2018] FWC 5101 at [55](a)
21 [2018] FWC 5634 at [57](d) and (j) and [62]; [2018] FWC 5101 at [55](d) and (m)
22 [2018] FWC 5634 at [59]; [2018] FWC 5101 at [55](k)
23 [2018] FWC 5634 at [94]; [2018] FWC 5101 at [84]
24 [2018] FWC 5634 at [108]; [2018] FWC 5101 at [96]
25 The order made by decision [2018] FWC 5634 took effect at midnight on 6 September 2018
26 Transcript of proceedings dated 3 October 2018 at PN17-PN19
27 Order PR700792 dated 25 September 2018; Order PR700793 dated 25 September 2018
28 Transcript of proceedings dated 3 October 2018 at PN249
29 Transcript PN 492
30 Orders PR700177 and PR700003, clause 3.1
31 Ibid clause 3.3
32 Ibid clause 3.2(a)
33 Ibid clauses 3.2 and 5
34 Boom Appeal Book, p.68 section 2.2; WGC Appeal Book, p.155 section 2.2
35 (1936) 55 CLR 499 at 505
36 See also Esso Australia Pty Ltd v The Australian Workers’ Union(2015) 253 IR 304; [2015] FCA 758 at [92] per Jessup J; This aspect of the his Honours judgement was not disturbed on appeal in Esso Australia Pty Ltd v The Australian Workers’ Union [2016] FCAFC 72
37 [2016] FCAFC 72
38 Ibid at [1]
39 Ibid [39] – [53]
40 See s.19(1)(c)
41 [2014] FWCFB 4104 at [39]
42 Ibid
4
10
0