No judgment structure available for this case.

[2015] FWC 1603

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.418—Industrial action

Ausgrid; Endeavour Energy
v
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; Australian Municipal, Administrative, Clerical and Services Union; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union
(C2015/1798; C2015/1804; C2015/1805; C2015/1806)

SENIOR DEPUTY PRESIDENT HARRISON

SYDNEY, 13 MARCH 2015

Applications for orders to stop threatened industrial action - s.414 notice of protected industrial action - whether s.414 notices are valid - finding s.414 notices valid - no s.418 orders can be made - applications dismissed

[1] This decision concerns applications made by Ausgrid and Endeavour Energy (Endeavour) under s.418 of the Fair Work Act 2009 (Cth) (the Act). I heard these applications on 25 February 2015 and, at the completion of that hearing, I ruled that each of the applications was dismissed. These are my reasons for that decision.

The applications
[2] On 24 February 2015, Ausgrid filed four s.418 applications. They were against the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia (CEPU), the Construction, Forestry, Mining and Energy Union of Australia (CFMEU), the Australian Municipal, Administrative, Clerical and Services Union (ASU) and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU). The application against the CFMEU did not proceed to a hearing as it was withdrawn. Also, on 24 February 2015, Endeavour filed a s.418 application against the CEPU. The applications all related to industrial action which was foreshadowed to occur on 3 March 2015. The draft orders which accompanied each of the applications indicated that other persons, including employees of Ausgrid and Endeavour who are members of the relevant union, were proposed to be bound. The orders sought were for the industrial action to stop, not be engaged in and/or not be organised.

[3] The industrial action which was sought to be stopped or not occur was action notified in s.414 notices sent to Ausgrid and Endeavour. Such notices relate to protected industrial action taken in the course of bargaining for an enterprise agreement. An order under s.418 cannot be made if the industrial action to which it is directed is protected industrial action. Here, Ausgrid and Endeavour contend that the s.414 notices were invalid and, accordingly, the industrial action notified in them would not be protected. It follows that they contend a s.418 order should be made.

[4] In the proceedings before me, Ausgrid and Endeavour were represented by Mr B Hodgkinson SC and Mr G Phillips, the CEPU and ASU by Mr O Fagir, counsel, and the AMWU by Mr J Lavelle Wilson.

[5] I should note that on the same day as the s.418 applications were filed, Ausgrid and Endeavour also filed applications under s.424 of the Act for the termination or suspension of the notified action. I made those orders under s.424(1)(c) on 27 February 2015. 1 I publish my reasons2 for making those orders at the same time as this decision is being published.

The Act
[6] The type of action which is foreshadowed in the s.414 notices sent by the unions, in their capacity as bargaining representatives for their members, is described as employee claim action. Section 409 of the Act requires that such action must meet the common requirements set out in Subdivision B of Division 2 of Part 3-3 of the Act. One such requirement is that a written notice is to be provided to an employer, which notice must comply with s.414 of the Act. The relevant parts of that section are as follows:

“414 Notice requirements for industrial action
Notice requirements—employee claim action
(1) Before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

(2) The period of notice must be at least:

(a) 3 working days; or
(b) if a protected action ballot order for the employee claim action specifies a longer period of notice for the purposes of this paragraph—that period of notice.

...

Notice requirements—content
(6) A notice given under this section must specify the nature of the action and the day on which it will start.”

[7] I should next reproduce s.418 of the Act. It is in these terms:

“418 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.”

Background

[8] On 12 January 2015, I issued protected action ballot orders on applications by a number of unions, including the CEPU, ASU and AMWU. Orders were issued as sought by those unions acting as bargaining representatives for their members who were employees of Ausgrid and of Endeavour. Each of the orders that were issued identified a number of questions that would be put to employees in the relevant ballots. Each contained a question as to whether they supported the taking of protected industrial action which may involve taking “separately, concurrently and/or consecutively” a number of types of action. The types of action were divided into categories being stoppages of work, strikes, bans, changes to the performance of work and the distribution of union and industrial campaign related material. It was only the stoppages of work category that was referred to in this matter. For the purposes of this decision I need only identify that one type of action was “Stoppages of work for 4 hour periods”.

[9] On 19 February 2015, notices of intention to take industrial action were given to Ausgrid. These notices were issued under s.414 of the Act by the CEPU, ASU and AMWU, acting as bargaining representatives for their members. On that same day, a similar notice of intention to take industrial action was given to Endeavour by the CEPU, again acting in its capacity as a bargaining representative for its members. Each of the notices describes the purpose of the industrial action as being employee claim action in support of, or advancing, employee claims made in respect of a proposed collective agreement. The notices are in similar terms. It is sufficient for me to reproduce the relevant terms of the CEPU notice given to Ausgrid as an example:

“Nature of intended industrial action
A four (4) hour stoppage of work by CEPU members to apply to the last four (4) hours of their ordinary hours. This action will apply to working hours which commence from Tuesday, 3 March 2015.
Date on which industrial action will begin:-
Tuesday, 3 March 2015”

[10] It is to be noted that a stoppage of work for a four hour period is a kind of action which was approved by the relevant protected action ballots conducted by the Australian Electoral Commission (AEC). I should also indicate that no issue arises in relation to compliance with s.414(2)(b) in so far as the protected action ballot orders I made specified a period of seven working days’ notice of the action was to be given to the employer.

The hearing and evidence

[11] All of the s.418 applications proceeded together. 3 The issue raised in them was the same. It concerned the construction to be placed on s.414(6) and the application of the uncontested facts to that section. I turn to the evidence. In the case of the employers, it comprised two witness statements. They were from Mr McDonald, Senior Industrial Relations Advisor at Ausgrid and Mr Gibson, Acting Manager Industrial Relations at Endeavour. Neither was required for cross-examination. In their witness statements, the deponents each addressed enterprise bargaining negotiations which had occurred and the persons who had participated. Details were also given about protected action ballots which had been sought, and granted, and the s.414 notices subsequently given. Each statement contained details about employee numbers and related matters. I extract the following from the statements:

i. Ausgrid employed 5,029 employees as at 20 February 2015 and 4,880 of those are covered by the existing enterprise agreement. The statement sets out the numbers of employees who, as at 20 February 2015, had authorised deductions to be made from their pay to make contributions to identified unions. The statement also set out the number of employees on the roll of voters as reflected in the relevant AEC declaration of results of the protected action ballot. These are the details:

(a) CEPU - 1982 Employees on the roll of voters - 2883
(b) ASU - 744 Employees on the roll of voters - 923
(c) AMWU - 15 Employees on the roll of voters - 18

ii. Endeavour employed 2,439 employees as of 2 February 2015. The statement does not indicate how many of those employees are covered by the existing enterprise agreement. As at 20 February 2015, 895 employees had authorised deductions to be made from their pay to make contributions to the CEPU. The AEC declaration of results in respect of the protected action ballot disclosed that 1,297 CEPU members were on the roll of voters.

iii. Ausgrid does not know the identity of the any of the union members on the roll of voters who had not authorised deductions to be made from their pay. Endeavour does not know the identity of the additional 402 CEPU members on the roll of voters who had not authorised deductions to be made from their pay.

[12] The CEPU tendered one document in the Endeavour s.418 application. 4 It is an “Enterprise Agreement 2014” employee update from the Chief Operating Officer of Endeavour to employees. It was tendered for the purpose of identifying a number of entries in it which supported the union’s submission that Endeavour well understood the nature of the industrial action that was to take place and the period of time over which it would occur. I refer to this consideration later in my reasons.

[13] The CEPU also relied on paragraph 17 of a statement of Mr Pengilly, General Manager, Network Operations at Ausgrid. That statement had been filed in support of a s.424 application that had been lodged by Ausgrid. I refer to that statement later in this decision.

Relevant principles from judgments and decisions

[14] The construction of s.414(6) and a number of judgments and decisions in which it, and a predecessor provision were considered, were discussed in the Full Bench decision EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union (EnergyAustralia Yallourn). 5 At paragraph [36] of that decision, the Full Bench said thatdecisions of the Federal Court of Australia and the Fair Work Commission (Commission) had considered the role and purpose of s.414 notices of intention to take protected action and the adequacy of the content of such notices. Between that paragraph and paragraph [45] the Full Bench set out extracts from those decisions. It was not in issue between the parties that the approach to be taken to the s.414 notice in this matter should be informed by that discussion.

[15] It is not necessary that I reproduce here a full extract of paragraphs [36] to [45] of EnergyAustralia Yallourn. I took all of the matters there discussed into account when reaching my decision in this matter. It is adequate that I highlight only some of the observations made.

i. The Federal Court’sreasons for decision in Davids Distribution Pty Ltd v National Union of Workers (Davids Distribution) 6 is commonly the first decision referred to when considering the adequacy of a notice issued under s.414. That decision was decided by reference to a notice issued under s.170MO(5) of the Workplace Relations Act 1996 (Cth) (WR Act). That section was in similar but not identical terms to s.414(6). About the terms of s.170MO(5), the Court said at paragraph [84] that:

“... It would be a major, and unrealistic, constraint on industrial action to require a party to specify, three clear working days in advance, exactly what steps it would take. An unduly demanding interpretation of s.170MO(5) would seriously compromise the scheme of Division 8 of Part VIB of the Act; it would be difficult for a party to an industrial dispute to obtain the protection contemplated by the Division.”

The Court then said:

“[87] We think s170MO(5) was designed to ensure that industrial disputants who are to become affected by protected action, in relation to which their usual legal rights are significantly diminished, are at least able to take appropriate defensive action. For example, an employer may operate a sophisticated item of equipment that will be damaged if precipitately shut down. If warned in advance of a ban that might affect the continued operation of that plant, the employer might choose a controlled shut down during the period of the notice. More commonly, perhaps, an employer might use the notice time to communicate with suppliers and customers, and thereby reduce the consequences for them of the notified industrial action. Very often, the recipient of the notice will respond in a way that has a legal dimension. For example, a union might react to a notice by an employer of intent to lockout some employees by giving notice that all employees will strike indefinitely as from the commencement of the lockout. Similarly, an employer might respond to an employees’ notice of bans by giving notice of a lockout of some or all employees.

[88] It will be apparent we think it necessary, and sufficient, for parties to describe the intended action in ordinary industrial English; for example, “an indefinite strike of all employees”, “a lockout of all employees employed in the AB fabrication plant”, “a ban on overtime”, “a ban of the use of MN equipment”, “rolling stoppages throughout the mine”, “a ban on the servicing of delivery vehicles”.

ii. Davids Distribution was considered and applied by a Full Bench of Fair Work Australia in Telstra Corporation Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Telstra). 7 At paragraph [12] of that decision, the Full Bench said:

“[12] Before turning to the notice in this case it is appropriate to make some observations about the construction of s.414. The first point to note is that the obligations in ss.414(1) and (6) are not cast in terms of an intention to take industrial action but in more positive terms. This is a point of contrast with the language of s.170MO of the WR Act, exemplified by s.170MO(5) which we have set out above. The second point is that in considering whether the notice meets the requirement to specify the industrial action, it is necessary to have regard to the purpose of the notice requirement and the relevant circumstances, in particular the nature of the employer’s undertaking. As to purpose, there is little doubt that the purpose of the notice requirement is to give the employer the opportunity to respond to the action by making relevant preparations. The response may involve making arrangements to deal with unavailability of labour, including making appropriate arrangements in relation to customers, suppliers and other contractors. Whether the notice is adequate may depend on the nature of the employer’s operations including their size, the number of employees, the number of locations, the time at which the action is to occur and the employees potentially taking the industrial action. …”

iii. The next relevant decision is the Federal Court decision of Merkel J in Construction, Forestry, Mining and Energy Union v Yallourn Energy Pty Ltd (Yallourn). 8 This matter concerned an argument about the adequacy of a s.170MO(5) notice given by the CFMEU to the employer. His Honour said that as legal immunity is conferred in respect of protected industrial action it was important that the nature of the proposed action be specified accurately, as a failure to do so will be likely to lead to uncertainty and litigation as to whether the action taken subsequent to the notice is protected. Accordingly, it is critical that the particularity be sufficient to enable the parties to be aware of the nature of the intended action and whether the action actually taken in reliance on the notice is or is not protected action when it is taken.9

At paragraph [21], His Honour said:

“[21] Whether a notice is sufficient to comply with s 170MO(5) can involve questions of fact but will more usually involve questions of degree. When assessing such questions, as was stated in Davids Distribution at 495, it is important that the inquiry does not place a premium on legalism; rather the inquiry is as to what the notice would convey “in ordinary industrial English” to the reader. Further, the purposes for which the notice is given (to which I have referred above) can be relevant factors in determining whether a notice adequately or sufficiently conveys the nature of the industrial action intended to be taken.”

iv. The next decision is of Barker J in Alcoa of Australia Limited v The Australian Workers’ Union (Alcoa). 10 The issue there was whether the applicant was entitled to an interlocutory injunction restraining the union from issuing a notice of purported protected industrial action pursuant to s.414 of the FW Act if the notice failed to specify the commencement time and duration of the proposed industrial action described in the notice. His Honour said that he had not been referred to any case in which the issue about specifying the duration of proposed industrial action with particularity had been finally decided. He said:

“[33] For myself, while I accept the admonition of Goldberg J that a matter may not be so simply decided, one would have thought, taking the text of s 414(6) at face value, that because the Parliament has chosen to impose some notice requirements of industrial action when, prior to the Workplace Relations Act 1996 (Cth), there were none, a court should be slow, in effect, to travel beyond the plain words of the provision. The requirement to specify the “nature of the action” and then separately “the day it will start”, do not, of themselves, suggest to me that it is also necessary to particularise the commencement and finishing time of the proposed action in a notice. For the Court to supply this degree of particularisation might be seen to supplant the role of the legislature in prescribing industrial behaviour, a matter of continuous contention over the course of this country’s history since Federation in 1901.

[34] Nonetheless, along with Goldberg J and Gilmour J, I accept that there may well be an argument, particularly in the circumstances of a particular case, that in specifying the “nature of the action”, having regard to a particular action, it may in some cases be necessary to say something about the commencement and/or the conclusion times of the industrial action. But it is not a requirement that, to my mind, immediately leaps to the eye from the text of s 414(6).”

v. The next case referred to is the decision of Greenwood J in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Pinnacle Career Development Pty Ltd (Pinnacle). 11 His Honour’s reasons addressed s.414(6) of the FW Act. In the course of those reasons he approved the comments that had been made by the Full Bench in Telstra. At paragraph [58] he said:

“[58] These observations suggest that the adequacy of a notice for the purposes of s 414(6) must be examined in context. An assessment of adequacy must take account of all the circumstances and examine expressions used in the context of whether the concepts embodied in the expressions are well recognised in workplace relations. The adequacy of the notice must take account of the practical applied circumstances of the workplace and whether the purpose of a notice is served by giving the addressee an understanding of what is contemplated and when it will occur so as to provide the recipient with an opportunity to consider his or her position and act or respond in a particular way (or as in this case, engage in the foreshadowed conduct set out in the notices “RF3” and “RF7” to which the challenged notices respond).”

Arguments of Ausgrid and Endeavour as to why the notices are invalid

[16] Ausgrid and Endeavour submitted that the notices do not comply with s.414 and are invalid. Accordingly, the industrial action that is threatened is not protected industrial action and I should make an order pursuant to s.418 of the Act that such action should not occur. The reasons why it is submitted the notices are not valid are as follows:

(a) The notices are ambiguous and vague as to whether the industrial action will start “on” 3 March 2015 or “from” that date;
(b) The notices appear to notify an intention to take consecutive industrial action without stating so;
(c) The notices do not clearly identify the employees who will be taking the action; and
(d) The ambiguity in the notices is reinforced by the public comments made by some of the unions.

Consideration

[17] I refer to the first basis upon which the employers submit the notices are invalid. They contend they are ambiguous and vague as to whether the industrial action will start “on” 3 March 2015 or “from” that date. They say the word “from” suggests that the intended action may commence at any time on 3 March 2015 or thereafter. They submit that in contradiction to this, the notices also state that the intended action will “begin” on 3 March 2015. They say the result is that the notices are ambiguous as to the day on which the action will start and is therefore invalid. 12

[18] I am not persuaded that the notices are ambiguous or confusing. As I read them the stoppage by the relevant union members will be for the last four ordinary time hours performed by employees on shifts that commence on Tuesday, 3 March 2015. If any of those shifts, for example a night shift, commences on Tuesday 3 March 2015, but the last four ordinary hours of the shift are performed on Wednesday 4 March 2015, then the notice extends to those hours as well. That is the extent of the protected industrial action that is notified.

[19] The unions agree with the construction of the notice as described in the above paragraph. They submit this is how it should be read and how they intended for it to be read. 13 They also submit that Endeavour understood it was to be read in this way. In this respect, the CEPU, in particular, relies on the document titled “Enterprise Agreement 2014”. In that document the reference to the stoppage is to “a four hour stoppage”. They suggest that read in context the document suggests that Endeavour well understood the confined nature of the period of time over which the protected industrial action was to occur. The unions submit that a similar understanding was held by Ausgrid. In this respect they rely on paragraph 17 of the statement of Mr Pengilly. In it he says “It is mine and Ausgrid’s understanding that the intended action as outlined above will result in all of the CEPU’s members engaging in the 4 hour stoppage.” It is submitted that this makes clear that Ausgrid knew it was to be one four hour stoppage. I am not persuaded the entries made in these documents are of any great assistance. However, to the extent they are, the entries are consistent with the construction I have placed on the s.414 notice.

[20] The next challenge as described in paragraph [16](b) above is that the notices appear to notify an intention to take consecutive industrial action without stating so. The employers submit that one possible interpretation of the notices is that the proposed action is intended to operate consecutively, but they do not clearly state that this is the intention. They say that given the action is stated both to commence from 3 March 2015 and on that date, it may be that the true intention is that the action will be consecutive, such that it will commence from that date for an indefinite period without specifying the subsequent dates on which the industrial action will be taken. If that is the proper construction of the notices, they are invalid in that they do not clearly give notice to Ausgrid and Endeavour of the nature of the industrial action. They submit that it is impossible to know when and on what days the action will be taken. 14

[21] This argument is largely answered by my decision in respect to the first ground upon which the notices were challenged. There is nothing in the notices which, in my opinion, can reasonably be understood to be giving a notice that consecutive periods of protected industrial action are to be taken.

[22] I turn to the next challenge, which is that the notices do not clearly identify the employees who will be taking the action. The employers emphasis the reference in s.414(1) to “a person”, “an employee” and ‘the employee.” They submit the provision is cast in “singular” terms highlighting obligations in respect of a specific employee and that a written notice must be given on behalf of each person taking the action. They submit that one notice could be given on behalf of a number of employees but the notice must provide sufficient specificity as to the employees who are to take the action. The notices here do not contain that degree of specificity in that they refer in global terms to members of particular unions. As a result, it is left to Ausgrid and Endeavour to determine which employees are members of the relevant unions. Relying on the evidence given in the statements of Mr McDonald and Mr Gibson, which I have referred to above, they submit that neither Ausgrid nor Endeavour knows the identity of all of the union members and, it follows, they do not know which employees will be engaging in the action.

[23] The employers also submit that the failure to adequately specify the employees who will be involved in the notified action leaves Ausgrid and Endeavour in the “invidious position” that they may not be able to comply with ss.470-471 of the Act. These sections prohibit an employer paying an employee in respect of certain periods when protected industrial action is being taken. The employers submit they need to know “with sufficient clarity” the identity of the employees who will be engaging in the industrial action. 15

[24] Further, the employers submit that in failing to identify with sufficient precision the relevant employees who will be engaged in the industrial action, the unions have failed to identify the “nature of the industrial action”. This is because Ausgrid and Endeavour do not know who all of the members are of the various unions and, accordingly, do not know all of the work that would be affected by the withdrawal of labour. As it is not known with sufficient precision who will be involved in the action, it is unclear what the action will involve. 16

[25] I commence my consideration of these challenges by referring to the terms of ss.437(3)(b), 443(3)(d) and 414(6). The first two refer to the action that is to be specified as “the nature of the proposed industrial action” and the third refers to “the nature of the action”. All these sections are in Part 3-3 of the Act. The action in the s.414(6) notice can only be industrial action. When the legislation uses a particular term in one section, generally the meaning to be given to that term elsewhere in the legislation would be the same, unless suggested otherwise. If that is so, then using the phrase “A four (4) hour stoppage of work” in the s.414(6) notice, it being one of the types of action approved in the protected action ballot, is all that is required to comply with the obligation to specify the nature of the action. The only additional requirement would be to state the day on which that action would start. I accept that this construction does not appear to have been embraced at a Full Bench level, so I will proceed on the basis it does not provide a full answer to the employers’ challenges to the validity of the notices here given.

[26] I do not read s.414 as suggesting that the normal rule of interpretation should not apply; references to the singular will include the plural. 17 I agree with the unions, as they have submitted, that had the legislature intended that the notice should identify, by name, the employees who would be participating in the notified action, the section could have easily been drafted in that fashion. Further, it would have been easy to have required the notice to specify, for example, the location or locations of employees who were to take the protected industrial action. The only relevant obligation in s.414(6) is to “specify the nature of the action”.

[27] I also do not read s.414(6) as requiring a notice to contain such particularity so as to enable an employer to identify the employees who are proposed to take the action by name. It seems to me that this is the practical effect of the construction for which the employers contend. The notice would need to contain a level of particularity such that the names of the members of the union who proposed to take protected industrial action will be known to the employer in advance of the action being taken. The requirements of the section do not demand this level of particularity, and I was taken to no decision which supported that construction being given to it. The fact that after protected industrial action is taken, an employer will then know the identity of union members, does not mean this analysis is unsound.

[28] There is no warrant to read into s.414(6) a requirement for the notice to state precisely each of the locations at which the protected action will occur. While the precise action to be taken does not need to be stated, and therefore the defensive action the employer may take may not be able to be precisely formulated, that limitation is inherent in the requirement that it is only necessary to notify the employer of the nature of the intended action, rather than the actual intended action. 18

[29] In my opinion, the employers require a degree or level of particularity in the notice which is expressly disapproved of in the decisions and judgements discussed in EnergyAustralia Yallourn. The notice here describes the nature of the action and the day on which it will start.

[30] I am also not satisfied the employers are as much “in the dark” about the names and locations of union members as they assert. The evidence indicates that a substantial number of union members have authorised the employers to make deductions from their pay. The employers know not only the names of those employees, but also the union of which each of them is a member. They would also know the work location of those employees. I also think it open to me to take into account the large number of industrial issues which one or other of the employers and the unions bring into the Commission. I know this as I am the Head of the Panel in which the electrical power industry resides. The employers, in my opinion, probably know many, if not most, of the areas of their operations in which union members are engaged.

[31] I note that the employers place particular weight on the Full Bench decision in Telstra. As that case clearly indicates, however, it was decided on its own particular facts. These included the breadth of the description of the action that was to be taken and the nature of Telstra’s operations extending, as they did, throughout all of Australia. I do acknowledge here that the Ausgrid and Endeavour networks cover a large geographical area of the state of New South Wales and they operate out of many workplaces and depots. It is a matter of assessing what has been described as “the practical applied circumstances of the workplace”. 19 In this case, although finely balanced, I think the notice falls on the acceptable side.

[32] I am not persuaded that the provisions of s.470 inform the proper construction to be given to s.414(6). There is no suggestion in the section that it necessitates an employer knowing in advance of protected action being taken precisely which employee will be taking that action. This section relates to the payment that may be made to an employee. Such calculations are made after the relevant day or days on which the action was taken. Section 470 will not be breached if an employer does not know in advance which employees will take protected industrial action. After the action is taken, the employer well knows which employees undertook such action and then are constrained by the section as to the amount of money they may pay to the employee. The provisions of s.471 are a little more problematic. Insufficient was said about this section to satisfy me that it was relevant to the construction I should place on s.414. I do not understand that the protected industrial action here notified was said to constitute a partial work ban. Nor, in this case, does the notice suggest the protected action here notified will be for any period other than for the four hour stoppage on 3 March 2015. I do not propose to say any more about s.471.

[33] The final challenge to the notices is that described in paragraph [16](d). The employers submit that the ambiguity in the notices is reinforced by the public comments made by the General Secretary of the CEPU. They point to a statement made by Mr Butler to the Sydney Morning Herald on 19 February 2015 where he stated that:

“Our members will respond to all supply interruptions on this occasion, regardless of circumstances, to ensure consumers are not caught in the middle of this escalating dispute.”

The employers submit that they have not been informed as to how Mr Butler’s proposal would be achieved. They say that such a proposal would seem to involve a majority of the CEPU members not taking industrial action which would be inconsistent with, and contrary to, the position identified in the notices. Absent such notification, they say it is not possible for Ausgrid and Endeavour to respond to the action. 20

[34] About this submission I first observe that, in fact, employees who would otherwise be entitled to take protected industrial action in accordance with the notices would be entitled to attend for work on 3 March 2015 and work the whole of their rostered shift. This, in my opinion, is the effect of the Full Bench decision in Boral Resources (NSW) Pty Ltd v The Australian Workers’ Union. 21

[35] I also refer to my earlier ruling in relation to the challenge described in paragraph [16](a). I ruled that there was no ambiguity or uncertainty in the notices. It was clear that the period of time over which the four hour stoppages were to occur was limited to 3 March 2015 (and, in the case of late-starting shifts, some ordinary hours that might be worked on 4 March 2015). The extract of the comment, attributed in a newspaper to Mr Butler, carries little weight. It is not relevant to my construction of the content of the s.414 notice and whether it complied with s.414(6).

[36] It was for these reasons that I decided the s.414(6) notices complied with the requirements of that section and were valid. Accordingly, I dismissed the applications for orders under s.418 of the Act.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr B Hodgkinson SC and Mr G Phillips on behalf of Ausgrid and Endeavour Energy.

Mr M Easton, counsel, on behalf of the Minister for Industrial Relations (New South Wales).

Mr O Fagir, counsel, on behalf of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Australian Municipal, Administrative, Clerical and Services Union.

Mr J Lavelle Wilson on behalf of the Australian Manufacturing Workers’ Union.

Hearing details:

Sydney.

2015.

February 25.

1 PR561513, PR561529, PR561530, PR561531.

2 [2015] FWC 1600.

3 PN183.

4 CEPU 1; PN210.

5 [2013] FWCFB 3793.

6 (1999) 91 FCR 463.

7 [2009] FWAFB 1698.

8 [2000] FCA 1070.

9 Ibid [17].

10 [2010] FCA 278.

11 [2010] FCA 1350.

12 Ausgrid/Endeavour 1, paragraph 2.11.

13 PN376, 480-2.

14 Ausgrid/Endeavour 1, paragraph 2.12.

15 Ibid paragraph 2.17.

16 Ibid paragraph 2.18.

17 Acts Interpretation Act 1901 (Cth) s.23.

18 Construction, Forestry, Mining and Energy Union v Yallourn Energy Pty Ltd [2000] FCA 1070, [15]-[21].

19 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Pinnacle Career Development Pty Ltd [2010] FCA 1350, [58].

20 Ausgrid/Endeavour 1, paragraph 2.19, 2.20.

21 [2010] FWAFB 1771; decision at first instance: [2009] FWA 1412.

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