Construction, Forestry, Mining & Energy Union v Anglo Coal (Moranbah) North Management) Pty Ltd
[2004] FCA 604
•13 MAY 2004
FEDERAL COURT OF AUSTRALIA
Construction, Forestry, Mining & Energy Union v Anglo Coal (Moranbah) North Management) Pty Ltd [2004] FCA 604
INDUSTRIAL LAW – protected action under s 170ML of Workplace Relations Act 1966 (Cth) – whether employer breached s 170MU of the Workplace Relations Act 1966 (Cth) – whether stand-down clause in award allows employer to stand-down employees participating in protected action – employer’s motivation for standing down employees
Workplace Relations Act 1966 (Cth) ss 4, 126, 170MI, 170ML, 170MO, 170MP, 170MT, 170MU, 170NC
Acts Interpretation Act 1901 (Cth) subs 13(3), s 15ABTHE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v ANGLO COAL (MORANBAH NORTH MANAGEMENT) PTY LTD
Q 154 OF 2003
DOWSETT J
13 MAY 2004
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 154 OF 2003
BETWEEN:
THE CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
APPLICANTAND:
ANGLO COAL (MORANBAH NORTH MANAGEMENT) PTY LTD
RESPONDENTJUDGE:
DOWSETT J
DATE OF ORDER:
13 MAY 2004
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1. The application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 154 OF 2003
BETWEEN:
THE CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
APPLICANTAND:
ANGLO COAL (MORANBAH NORTH MANAGEMENT) PTY LTD
RESPONDENT
JUDGE:
DOWSETT J
DATE:
13 MAY 2004
PLACE:
BRISBANE
REASONS FOR JUDGMENT
BACKGROUND
The applicant alleges that the respondent has acted contrary to ss 170MU and 170NC of the Workplace Relations Act 1966 (Cth) (the “Act”) and seeks appropriate relief. The facts of this case appear from the agreed statement of facts which is Exhibit 1. I will attach it to these reasons. It is therefore not necessary to rehearse the facts in detail.
In September 2003 the applicant was seeking to negotiate the terms upon which its members would, in future, be employed in the Moranbah North coal mine. In particular, it wanted to negotiate an agreement of the kind described in the Act as a “certified agreement”. Towards the end of September the applicant and its members took industrial action in support of their claims. In effect, various employees reported for work but declined to work their full shifts. The respondent stood down a number of those employees. These proceedings concern the legality of such stand-downs.
Part VIB of the Act deals with certified agreements. Division 8 of that Part establishes a regime pursuant to which parties seeking to negotiate such an agreement may take what is called “protected action” in support of their claims. In particular, s 170ML provides:
‘(1)This section identifies certain action (protected action) to which the provisions in section 170MT (which confers certain legal immunity on protected action) are to apply.
(2)During the bargaining period:
(a)an organisation of employees that is a negotiating party; or
(b)a member of such an organisation who is employed by the employer; or
(c)an officer or employee of such an organisation acting in that capacity; or
(d)an employee who is a negotiating party;
is entitled, for the purpose of:
(e)supporting or advancing claims made in respect of the proposed agreement; or
(f)responding to a lockout by the employer of employees whose employment will be subject to the agreement;
to organise or engage in industrial action directly against the employer and, if the organisation, member, officer or employee does so, the organising of, or engaging in, that industrial action is protected action.
(3)Subject to subsection (6), during the bargaining period, the employer is entitled, for the purpose of:
(a)supporting or advancing claims made by the employer in respect of the proposed agreement; or
(b)responding to industrial action by any of the employees whose employment will be subject to the agreement;
to lock out from their employment all or any of the employees whose employment will be subject to the agreement and, if the employer does so, the lockout is protected action.
Note 1:The existence of this entitlement does not affect any right of the employer to refuse to pay the employee where, under the common law, the employer is permitted to do so because the employee has not performed work as directed.
Note 2:The existence of this entitlement also does not affect any authorisation of the employer to stand-down the employee as a result of a variation of an award under section 126, nor does it affect the Commission’s powers under that section to vary an award to give such an authorisation.
(4)The reference in subsection (3) to the employer locking out employees from their employment is a reference to the employer preventing employees from performing work under their contracts of employment without terminating those contracts.
(5)If the employer locks out the employees from their employment in accordance with subsection (3), the employee is entitled to refuse to pay any remuneration to the employees in respect of the period of the lockout.
(6)The employer is not entitled to lock out employees from their employment under subsection (3) unless the continuity of the employees’ employment for such purposes as are prescribed by the regulation is not affected by the lockout.
(7)This section has effect subject to the following provisions of this Division.’
The term “industrial action” is defined in s 4 of the Act. Save for par (f) that definition appears to describe actions by employees. Only by straining the language could one apply it to actions by employers. However par (f) clearly contemplates industrial action by an employer. This may be an artefact surviving from some earlier form of the definition. In any event, ss 170ML, 170MO and 170MP all contemplate “industrial action” by unions or employees and “lockouts” by employers. Pursuant to s 170MO, industrial action will only be protected if appropriate notice has been given by the relevant union or union member. A lockout will be protected under s 170MO if an employer has similarly given notice.
The nature of the “protection” attaching to protected action appears from ss 170MT and 170MU. Pursuant to s 170MT, a person involved in protected action is generally immune from legal proceedings arising out of such conduct. Section 170MU provides:
‘(1) An employer must not:
(a)dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee’s prejudice; or
(b)threaten to dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee’s prejudice;
wholly or partly because the employee is proposing to engage, is engaging, or has engaged, in protected action.
(2)Subsection (1) of this section does not apply to any of the following actions taken by the employer:
(a)standing-down the employee;
(b)refusing to pay the employee where, under the common law, the employer is permitted to do so because the employee has not performed work as directed;
(c)action of the employer that is itself protected action.
(3)In proceedings under section 170NF for an alleged contravention of subsection (1) of this section, it is to be presumed, unless the employer proves otherwise, that the alleged conduct of the employer was carried out wholly or partly because the employee was proposing to engage, was engaging, or had engaged, in protected action.’
On Friday 19 September 2003 the applicant gave notice pursuant to s 170MO of the Act. The notice stated that:
‘The industrial action will commence on Tuesday, 23rd September 2003 and will take the form of:
۰For the crews on the 12 hour shifts, namely A, B, C and D Crews, there will be a 6.25 hour stoppage of work each day from 1 am to 7:15 am from Tuesday, 23rd September 2003 up until and including Tuesday, 30th September 2003
۰For the Window Crews there will be a three hour stoppage of work from 1 am until 4:00 am on Tuesday, 23rd September 2003 and a 5.75 hour stoppage of work each day from 10:15 pm to 4 am the following day from Tuesday, 23rd September 2003 up until and including Tuesday 30th September 2003.
۰... .’
Mr Paul Rex Hendry, the Human Resources Manager of the respondent, swore in his affidavit that such action was taken, resulting in:
‘... crews on various shifts performing work for the first part of their rostered 12 hour shift, but commencing a stoppage of work approximately halfway through the shift until the end of the shift.’
Prior to 28 September 2003 the respondent did not respond to such action. However, on 28 September 2003 Mr Hendry stood down 24 employees who were employed on either the Night D crew or the Window D crew. He claimed that the decision to stand down the employees was taken for operational reasons which he explained in some detail.
The Window D crew commenced duty at 4.00 pm on 28 September 2003. It consisted of six employees. Pursuant to the notice given on 19 September, members of this crew were to stop work at 10.15 pm. At 7.10 pm Mr Hendry called the crew to the surface. He then addressed each member, following a prepared script which appears as annexure PRH 10 to his affidavit. In effect he directed each employee to work the full shift, indicating that if he did not agree to do so, he would be refusing to comply with a lawful direction, thereby breaching his contractual obligations. Mr Hendry further stated that such an employee would not be paid for the shift or any part of it unless he was prepared to work in accordance with the direction. Each employee was then asked if he understood what had been said and whether he refused to work as directed. Five members of the Window D crew refused to comply with the direction but indicated that they were willing to work that part of the shift not covered by the notified industrial action. They were stood down and left the mine.
The Night D crew was scheduled to commence work at 7.15 pm. The crew consisted of 27 employees. At the scheduled commencement time of the shift Mr Hendry issued an oral direction in the same form as that used in the case of the Window D crew. Nineteen members refused to comply with the direction and were stood down. On 29 September, Mr Hendry similarly stood down 21 employees, again members of the Window D and Night D crews. The various employees were not paid for the shift or part of the shift during which they were stood down. The applicant served further notices pursuant to s 170MO, and further industrial action was taken. However no further stand-downs occurred.
Stand down action was authorised by clause 4 of the Moranbah North Coal Enterprise Award which provided:
‘4.1 Employment will be by the month.
4.2 Employees will perform work as directed.
4.3 [The respondent] may require employees to perform any work within their skills, training, experience and knowledge.
4.4 [The respondent] may withhold payment for any period for which work is not performed in accordance with subclauses 4.2 and 4.3 above.
4.5 [The respondent] may stand down an employee for part or all of a day:
4.5.1 for refusal of duty;
4.5.2 for neglect of duty;
4.5.3 for misconduct;
4.5.4 if the employee cannot be usefully employed in the employee’s usual classification because of a strike; or
4.5.5 if the employee cannot be usefully employed in the employee’s usual classification because of a breakdown of machinery that has lasted for more than four consecutive working days. The day of the breakdown is counted as one of the four consecutive working days if it happens to be a working day.
4.6 An employee is not entitled to payment while stood down under subclause 4.5 above.’
THE APPLICANT’S CASE
The applicant submits that the ‘first question’ is whether, in the circumstances, it was appropriate for the respondent to implement clause 4 of the award. It argues that:
۰the respondent could not lawfully rely upon that clause ‘because the award clause is not directed to occurrences of protected action’;
۰although the stand down clause applies where there has been a ‘refusal of duty’, it does not apply where such refusal of duty ‘takes the form of protected action’ under the Act;
۰this is because ‘the structure of the division of the [Act] which deals with protected action and its protection and immunities prevails over any apparent inconsistent or additional or supplemental rights that may arise in a clause such as that in the award in question’;
۰there may only be limited retaliation in connection with industrial action, namely by a lock out as contemplated in s 170MU and in the notes thereto;
۰pursuant to note 2, an employer may stand-down an employee in response to protected action only pursuant to a power conferred by ‘a variation of a relevant award’;
۰in other words, the employer can rely upon such a provision only if the stand down clause has been inserted into the award ‘directly in response to particular industrial action then afflicting the employer’, and not pursuant to a ‘blanket or “cover-all” stand down clause which pre-existed the occurrence of the industrial action ...;
۰s 126 contemplates the insertion of such a clause only in connection with a contemporaneous industrial dispute.
With all respect, I must say that I consider these submissions to be contrived. They involve severe distortions of the wording of the relevant provisions. I can best demonstrate this by adopting an approach which I consider to be orthodox.
SECTION 170MU
There is no dispute that there was a bargaining period in force at the relevant time as prescribed by s 170MI. It also is not disputed that the action taken by the applicant and its members was protected action pursuant to s 170ML. It follows that the respondent was bound by the terms of s 170MU. It may be inferred that the stand-downs injured the relevant employees in their employment as contemplated by subs 170MU(1). Thus the questions for consideration are:
۰whether the respondent stood down the employees because of the protected action, and if so:
۰whether subs 170MU(2) authorized the respondent’s conduct.
Subsection 170MU(1) is engaged only if the employer causes injury to the employee ‘wholly or partly because the employee is proposing to engage, is engaging, or has engaged, in protected action.’ According to Mr Hendry, the respondent took action because work in the mine was being significantly disrupted by the industrial action. It is not necessary to go into his evidence in detail. It is sufficient to say that Mr Hendry asserted such motivation and was not cross-examined. I accept his evidence. The motivation for the stand-downs was not the employees’ engagement in protected industrial action, but the operational requirements of the mine. The prescription contained in subs 170MU(3) has been rebutted. In those circumstances subs 170MU(1) was not engaged.
In any event, the respondent’s conduct was clearly authorised by subs 170MU(2). Pursuant to the award, the respondent was entitled to stand-down these employees without pay. There is no justification for reading down par 170MU(3)(a) so as to exclude stand-downs pursuant to the relevant award. The award also provided that in the case of a stand-down, the relevant employee was not entitled to pay. The respondent did not need to rely upon par 170MU(3)(b) or to address the legal and factual issues inherent in its application.
I should say something about the applicant’s arguments. Firstly, it is said that the power to stand-down under the award should not be construed as extending to a refusal of duty brought about by protected action. Neither the Act nor the award contains such a limitation. Secondly, the applicant submits that the actions available to an employer in the event of protected action by its employees or their union is limited to that prescribed in subs 170ML(3), including the notes. It is fair to say that this argument places great significance upon the notes.
Pursuant to subs 13(3) of the Acts Interpretation Act 1901 (Cth):
‘No marginal note, footnote or endnote to an Act, and no heading to a section of an Act, shall be taken to be part of the Act.’
Section 15AB provides:
(1)Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a)to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
(b)to determine the meaning of the provision when:
(i)the provision is ambiguous or obscure; or
(ii)the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.
(2)Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of an Act includes:
(a)all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer;
(b)…
(3) In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to:
(a)the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; and
(b) the need to avoid prolonging legal or other proceedings without compensating advantage.’
The notes are more in the nature of observations. Neither purports to limit or extend the operation of subs 170ML(3). It is true that Note 2 refers only to stand downs under an award variation pursuant to s 126. That section relates to variations applied for and granted in the course of a particular industrial dispute. The note was no doubt prompted by such a possibility. However that does not lead to the conclusion that the note was intended to limit the operation of s 170MU. Notes are not generally used for that purpose. Section 170ML is concerned with identifying protected action, not with prescribing the extent of such protection. The latter function is performed by ss 170MT and 170MU. There is no warrant for reading the notes to s 170ML as extending the protection offered by those sections.
section 170nc
The applicant also relies upon s 170NC, which provides:
(1)A person must not:
(a)take or threaten to take any industrial action or other action; or
(b) refrain or threaten to refrain from taking any action;
with intent to coerce another person to agree, or not to agree, to:
(c)making, varying or terminating, or extending the nominal expiry date of, an agreement under Division 2 or 3; or
(d)approving any of the things mentioned in paragraph (c).
Note:The Court has certain remedial powers in relation to a contravention of this section: see Division 10.
(2)Subsection (1) does not apply to action, or industrial action, that is protected action (within the meaning of Division 8).
(3)An employer must not coerce, or attempt to coerce, an employee of the employer:
(a)not to make a request as mentioned in subsection 170LK(4) in relation to an agreement that the employer proposes to make; or
(b) to withdraw such a request.’
My finding as to the respondent’s reasons for standing down the relevant employees excludes such reliance. For the reasons previously given, I doubt whether action by an employer can be “industrial action” as defined in the Act. It is not necessary to decide that question.
orders
The application must be dismissed.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate:
Dated: 12 May 2004
Counsel for the Applicant: Mr J Nolan Solicitor for the Applicant: Hall Payne Counsel for the Respondent: Mr C Murdoch Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 17 February 2004 Date of Judgment: 13 May 2004
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