Healthcare Supply Partners Pty Ltd v United Workers' Union
[2024] FWC 1816
•10 JULY 2024
| [2024] FWC 1816 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.418—Industrial action
Healthcare Supply Partners Pty Ltd
v
United Workers’ Union
(C2024/4544)
| COMMISSIONER MATHESON | SYDNEY, 10 JULY 2024 |
Alleged industrial action at Healthcare Supply Partners Pty Ltd
On 8 July 2024, Healthcare Supply Partners Pty Ltd (Applicant) applied under s.418 of the Fair Work Act 2009 (Cth)(Act) for orders that unprotected industrial action not occur and not be organised.
Legislation
Section 418 of the Act states:
“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
The Applicant is the employer concerned and is directly affected by the industrial action. The Applicant provides logistics services for pharmaceutical and healthcare companies in Australia and operates out of two receiving, storage and dispatch centres in Pemulwuy and Eastern Creek New South Wales (Sites). The Applicant submits that the normal operating hours of the Sites are between 6am and 6pm Monday to Friday.
In October 2023 bargaining commenced for a proposed enterprise agreement known as the Healthcare Logistics (NSW) Enterprise Agreement 2023 (Agreement) covering the Applicant and its employees at the Sites. The current enterprise agreement, being the Healthcare Logistics (NSW) Enterprise Agreement 2021 (2021 Agreement) nominally expired on 31 December 2023.
On 8 March 2024 the Fair Work Commission (Commission) made a protected action ballot order in favour of the United Workers Union (UWU) (B2024/197) (PABO), which included 18 forms of industrial action, including:
an unlimited number of indefinite or periodic bans on the operation of forklifts;
an unlimited number of bans on all data collection of indefinite duration;
an unlimited number of bans on all data entry of indefinite duration;
an unlimited number of bans on all paperwork of indefinite duration;
an unlimited number of bans on overtime of an indefinite duration;
an unlimited number of bans on the loading of trucks of indefinite duration;
an unlimited number of bans on the unloading of trucks of indefinite duration;
an unlimited number of stoppages of work of up to 1 hour’s duration for the purposes of speaking to the media about the reasons for industrial action;
an unlimited number of bans on the training of employees and/or contractors;
10.an unlimited number of bans on attending meetings with managers and key stakeholders;
11.an unlimited number of indefinite or periodic bans on the performance of work without a union badge or sticker attached to an employee’s prescribed uniform;
12.an unlimited number of stoppages of work of 15 minutes duration;
13.an unlimited number of stoppages of work of up to 2 hours duration;
14.an unlimited number of stoppages of work of 4 hours duration;
15.an unlimited number of stoppages of work of 8 hours duration;
16.an unlimited number of stoppages of work of 12 hours duration;
17.an unlimited number of stoppages of work of 24 hours duration; and
18.an unlimited number of stoppages of work of indefinite duration.
On 20 March 2024, the ballot was declared, and all 18 forms of industrial action listed in the PABO had been endorsed by a majority of employees.
On 19 April 2024, as no industrial action had been taken, the initial 30-day period in which the UWU and employees had the right under the PABO to take protected industrial action expired.
On 22 April 2024, the Applicant received notification that the UWU had made an application to extend the 30-day period for taking protected industrial action under the PABO. On 10 May 2024, the Commission made an order extending the time period during which industrial action is authorised by the ballot conducted pursuant to the PABO, for a further 30 days to 19 May 2024 (Extension Order).
On 10 May 2024, the UWU served a Notice of Intention to take protected industrial action that the UWU and its members who are employees of the Applicant would engage in industrial action at the Sites in the form of a “stoppage of work of 8 hours duration commencing at 6.00am until 2.00pm on 17 May 2024” (First Notice).
On 13 May 2024 the Applicant filed an application in the Commission pursuant to s.424 of the Act, seeking that the action notified on 10 May 2024 be terminated.
Following a conference before the Commission, on 17 May 2024, employees took protected industrial action in the form of a stoppage of work of 8 hours duration commencing from 6.00am until 2.00pm in accordance with the First Notice (First Industrial Action). It is not in contention that the First Industrial Action was:
a “stoppage of work of eight hours’ duration”’
authorised by the PABO; and
protected industrial action within the meaning of s.408 of the Act.
Following the First Industrial Action, bargaining continued between the parties for the
proposed enterprise agreement. No further industrial action was notified or taken between
17 May 2024 and 19 May 2024.
On 3 July 2023 the UWU served a Notice of Intention to take protected industrial action (Second Notice) indicating that the UWU and its members who are employees of the Applicant would engage in industrial action at the Sites in the form of:
“1. Stoppage of 8 hours’ duration commencing at 11:00pm on Wednesday 10 July 2024 and ceasing at 7:00am on Thursday 11 July 2024;
2. Stoppage of 8 hours’ duration commencing at 11:00pm on Thursday 11 July 2024 and ceasing at 7:00am on Friday 12 July 2024” (Industrial Action)
Initial matters
For the purposes of s.418(2), the Applicant is the employer concerned and is directly affected by the industrial action.
For the purposes of s.418(1), the Second Notice establishes that the Industrial Action is threatened, impending or probable and is being organised by the UWU. This is not in contention.
Hearing and representation
The matter was listed for heating on 10 July 2024 and both parties sought to be represented by a lawyer for the purposes of the proceedings. As is apparent below, the application raises matters of legal complexity, including a contest around whether the entire period of time referred to in the Second Notice falls within the meaning of “stoppage”, and given the impending commencement of the industrial action within a short time after the hearing, the matter needed to be determined efficiently. In those circumstances permission was granted for both parties to be represented pursuant to s.596(2)(a) on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.
Is the Industrial Action unprotected?
Submissions of the Applicant
The Applicant submits that the Industrial Action is unprotected on the following grounds:
The only form of industrial action that is authorised under the PABO in accordance with the operation of s.459(1) of the Act as at the date that the Industrial Action will occur is an eight hour stoppage.
The Industrial Action is not an eight hour stoppage but is a one hour stoppage commencing at 6am and finishing at 7am because:
a.the normal operating hours of the Sites are from 6am to 6pm, Monday to Friday;
b.the Sites are not operational between the hours of 11pm and 5.59am;
c.even if overtime or urgent work is required, the Sites are closed from 7pm or 8pm at the latest, and do not operate again until 6am;
d.the limited number of times that the Sites have operated between the hours of 11pm and 6am have been rare and exceptional circumstances, work has been planned well in advance and notice of the work has been given to employees;
e.there is currently no planned work or requirement for work to be performed between the hours of 11pm and 5.59am on 10, 11 and 12 July 2024;
f.between the hours of 11pm and 5.59am on 10, 11 and 12 July 2024, the Sites will be closed and no work is required to be performed by the Applicant’s employees who will be covered by the proposed enterprise agreement; and
g.no employees who will be covered by the proposed enterprise agreement are on-call or required to be recalled to work between the hours of 6pm and 6am.
A one hour stoppage is not authorised by the PABO because:
a.a one-hour stoppage (other than for the purpose of speaking to the media) was not a form of industrial action that was included in the PABO and voted on by the employees under the ballot; and
b.while ‘stoppages of work up to 2 hours duration’ was a form of industrial action included in the PABO, that form of industrial action was not commenced prior to the end of the extended period on19 May 2024. Rather, the form of industrial action that is authorised under the PABO, having been taken on 17 May 2024 before the end of the extended period is “stoppages of work of 8 hours duration” and the stoppage must be specifically 8 hours and not “up to” or “less than” 8 hours.
The Applicant submitted that the term ‘stoppage’ must be given its ordinary meaning and though its meaning is wide enough to encompass stoppages of work by an individual and stoppages of work generally[1] a stoppage cannot occur if the Applicant’s site is non-operational and no work would be occurring at all in the time of the stoppage. The Applicant submitted that no employees can ‘stop’ work during the hours of 11pm and 5.59am because no work is being done to be stopped.
The Applicant submitted that the UWU is intentionally trying to get around the requirements of the scheme of the Act in relation to taking protected industrial action, by giving notice of an eight hour stoppage, because it is the only type of action that is authorised under the PABO.
During the hearing the Applicant noted that s.418 of the Act provides that if it appears to the Commission 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 Commission 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.
The Applicant submitted that the word ‘by’ as referred to in s.418 is critical as is raises the question as to what is causing the stoppage. The Applicant submitted that in this case it is not the action of the employees that is causing the stoppage because the work has already stopped by reason of the Sites’ closure. That is, the Applicant has decided to close the Sites and there is no action taken by the employees in so far as stopping work.
The Applicant submitted that this is supported by s.19 of the Act dealing with the meaning of industrial action, with s.19(1) providing that industrial action means:
(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.
The Applicant submitted that it could not fall within these definitions as work would not be carried out across the 8 hour period identified in the Second Notice.
The Applicant pointed to s.19(2)(a) which provides that industrial action does not include action by employees that is authorised or agreed to by the employer of the employees. The Applicant submitted that there is a seven hour period in which the employees are authorised to be absent from work and so it could not be industrial action for that period of time and that the action proposed is in fact a one hour stoppage. The Applicant submitted that a one hour stoppage is not protected because the UWU did not take that type of action during the extended period.
The Applicant submitted that while there were no authorities directly dealing with the meaning of ‘stoppage or work’ in the context of s.418, cases dealing with s.524 of the Act provide significant assistance in understanding the meaning of ‘stoppage of work’.
Section 524 of the Act deals with stand down and s.524(1) provides that an employer may stand an employee down during a period in which the employee cannot usefully be employed because of one of the following circumstances:
(a)industrial action (other than industrial action organised or engaged in by the employer);
(b)a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown;
(c)a stoppage of work for any cause for which the employer cannot reasonably be held responsible.
In this regard the Applicant referred to the decision of the Federal Court in Australian Licenced Aircraft Engineers Association v Qantas Airways Ltd and Another[2] in which Bromberg J referred to the decision in Communications, Electrical, Electronic Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Ltd (2020)[3] in which His Honour made the following observations about the purpose of stand down provisions:
‘The mischief to which s 524 is directed is apparent from the very rationale for a stand down provision. As Gaudron J recounted in Food Preservers Union of Australia v All States Ready Foods (1976) 182 CAR 391 at 391, stand down provisions were “introduced into awards of the Conciliation and Arbitration Commission in the 1920’s to temper the effect of the change from daily to weekly hiring”. In circumstances where an employee who “stands and waits” is entitled to be paid irrespective of whether that employee can be usefully employed (Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 at 466 (Dixon J)), the weekly hire of employees was more prone to impose upon employers the burden of paying the cost of employing an employee during a period in which that employee could not be usefully employed. Stand down provisions enabled employers to be relieved of that burden in certain circumstances. …’
Bromberg J went on to say:
‘It may be observed that there are three inquiries called for by the stand down provisions here in question. First, can the employee not be usefully employed? Second, can the employee not be usefully employed because of a stoppage of work (or, in the case of the Qantas Agreement, a strike or a stoppage of work)? Third, has the stoppage of work (or strike) occurred through or by any cause for which the employer cannot reasonably be held responsible or, in the case of the Jetstar Agreement, could not reasonably have prevented?’[4]
…
That the employee cannot be usefully employed on a specific day is not the “stoppage of work” to which the stand down provisions here in question refer. The “stoppage of work” is an anterior circumstance or event which has brought about or caused the fact that the employee cannot be usefully employed on the day in question. The “stoppage of work” is therefore not merely the absence of work for the particular employee who is to be stood down. If that were so the phrase “stoppage of work” would be superfluous. The “stoppage of work” is the cessation of work of the particular workforce in which the employee is employed. A cessation of work rather than a mere reduction in the amount of available work for that workforce will constitute a “stoppage of work”: Bristow Helicopters Australia Pty Ltd v Australian Federation of Air Pilots [2017]
FWCFB 487 at [45] (Catanzariti VP, Gooley DP and Wilson C).’[5]
The Applicant submitted this is important because Bromberg J was referring to a situation in which employees are willing, ready and able to perform work and have an obligation or entitlement to be paid and there is a stoppage that is brought about in some way and that is the mischief toward which s.524 is directed. The Applicant submitted that in the current matter a situation does not arise in which the employees are willing, ready and able to work at 11pm because they have no entitlement or obligation to work those hours and those hours are not authorised to be worked by the employees. Rather, the obligation of the employees is to work the hours they are required to work under the 2021 Agreement and in circumstances where no employees will be required to work between the hours of 11pm and 5.59am on the days in question.
The Applicant also sought to rely on Burswood Resort (Management) Limited v United Voice[6] in which the union sought to stop work for two hours in circumstances where notice of employee claim action under s.414 of the Act had been given for a stoppage of four hours in duration. Deputy President Beaumont said:
‘[49] Concerning United Voice’s contention that the Act enables variance of the industrial action in the constraints of the notice of employee claim action under s 414, I am unpersuaded that this is the case. In my view the reference to the ‘stoppage of the performance of work of 4 hours’ duration’ is the specification of the nature of the action as contemplated by s 414(6). The 4 hours’ duration cannot be cleaved from the ‘stoppage of the performance of work’ and replaced with an alternative duration. To allow otherwise would see the duration of the stoppage being altered and yet the argument would be that the nature of the industrial action remained unchanged.’
The Applicant submitted that this is relevant to the current matter in that by seeking to take industrial action for a period of time where there is no work to be performed or the employees are in fact authorised to be absent from work is effectively changing the nature of the action in so far as the notice is concerned and what is authorised.
Submissions of the UWU
The UWU submitted that:
the ‘ordinary industrial English’[7] meaning of the phrase ‘stoppage of work of 8 hours duration’ in a ballot authorising industrial action refers to a total withdrawal of labour by a collective or individual for a period of 8 hours;
this meaning is not inconsistent with the definition of ‘stoppage’ used elsewhere in the Act,[8] which has been held to refer to the ‘cessation of work of the particular workforce in which the employee is employed’ as distinct from the absence of work for a particular employee’;[9]
The UWU also submitted that the phrase ‘unlimited number of’ provides that such stoppages can be exercised an unlimited number of times.
The UWU referred to the matter of Cleanaway Operations Pty Ltd v Transport Workers’ Union of Australia[10] in which the respondent union notified of a stoppage ‘for two hours commencing from 5.00am’ in circumstances where some employees had rostered hours of work that commenced after 5.00am but before 7.00am.[11] In that matter the Applicant employer interpreted the notice as meaning that employees will stop work for two hours from 5.00am to 7.00am and that employees who were to commence work after 5.00am would be unable to stop work for the period and that their industrial action would be unprotected on the basis that it was not authorised by the protected action ballot which did not provide for any stoppage of work of less than two hours.[12] The Commissioner found that affected employees who refused to perform rostered work during the period from 5.00am to 6.59am would be taking industrial action that was authorised by the protected action ballot, whether the actual duration of their individual industrial action was two hours or less. [13]The UWU submitted that Cleanaway Operations Pty Ltd v Transport Workers’ Union of Australia[14] is authority for the propositions that:
an employee will have engaged in protected industrial action in circumstances where their own rostered hours of work do not align with the period of a ‘stoppage’ which is notified as taking place between two identified times;
the definition of stoppage is broad and can encompass individual or collective actions and stoppages for the whole or part of a workplace.
The UWU also submitted that:
the Applicant’s proposition was contrary to ordinary industrial practice regarding the duration of stoppages in that it is common for bargaining representatives to notify of and for employees to take protected industrial action in the form of stoppages of 24, 48 or 72 hours’ duration, notwithstanding that the employer does not operate throughout all of the hours of a day;
the taking of consecutive shorter periods of protected industrial action (in circumstances where a ballot authorises consecutive instances of that action) is expressly contemplated by the Act and is an ordinary feature of the industrial landscape; and
the taking of four or eight consecutive stoppages of one hour’s duration does not mean that the stoppage is transformed, for the purposes of authorisation under s.459 of the Act, into a different species of industrial action provided for under a ballot.
The UWU submitted that it has notified of stoppages for a period of eight hours’ duration between 11.00pm and 7.00am and that:
employees can take action by refusing to work their rostered hours (which are, at this stage between 6:00am and 7:00am);
employees may also refuse any request or purported requirement to work overtime or shifts between 11:00pm and 6:00am.
The UWU submitted under the provisions of the 2021 Agreement it is conceivably open to the Applicant, in the event that employees had notified of a stoppage of one hours’ duration from 6.00am, to require a number of employees to perform overtime from 5.00am to 6.00am[15] and that as a result of the Industrial Action they could refuse to comply with such a direction.
The UWU referred to the decision in City of Wanneroo v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union – Western Australian Branch[16] in which the applicant in that matter advanced an argument that industrial action to be taken as identified in a notice was inconsistent with the questions considered by employees in the protected action ballot and was therefore not protected action within the meaning of the Act. In particular, the words used in the ballot question approved by employees referred to “stoppages” of either 12 or 24 hours duration. The notice contemplated a stoppage of 24 hours on three consecutive days between the hours of 6am on one day and 6am the following day. The applicant argued that this was in effect a 72 hour stoppage and that the union had attempted to avoid the limitations of the ballot which only authorised 12 or 24 hour stoppages. In relation to the stoppages on the second and third days the applicant had argued that these could not be categorised as stoppages in that immediately before each stoppage begins no work would be caried out. In that matter Commissioner Williams considered said:
“[57] In considering my decision, I have noted the comments of the Full Court of the Federal Court in David’s Distribution Pty Ltd v National Union of Workers (David’s Case).[17] When considering the predecessor to s.441(6), which was s.170MO(5), the Court said:
"[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'." (emphasis added)
[58] This passage was quoted with authority by the Full Bench in Country Fire Authority v United Firefighters' Union of Australia.[18]
[59] I note the reference in David’s Case to an approach based on ordinary industrial
English. I also note one phrase given as an example was of “rolling stoppages”. Applying the applicant’s interpretation of the word stoppage - that work is required to be happening before an employee can begin a stoppage - would mean that it is not possible to have “rolling” stoppages at all.
[60] Applying an ordinary industrial English interpretation to the word “stoppage” I have concluded that I do not accept the narrow interpretation that the applicant relies upon. I do not think that this reflects the ordinary industrial English meaning of the word stoppage. I am of the view that, objectively considered, the industrial action proposed in the notices provided by the respondent is consistent with the questions affirmed by the employees in the secret ballot process. I reject this first ground for the application”.
The UWU submitted it is the ‘refusal of work’ that constitutes the stoppage and not the ‘absence of work’.
The UWU also referred to Australian Licenced Aircraft Engineers Association v Qantas Airways Ltd and Another[19] and specifically the statement of Bromberg J in that decision:
“That the employee cannot be usefully employed on a specific day is not the “stoppage of work” to which the stand down provisions here in question refer. The “stoppage of work” is an anterior circumstance or event which has brought about or caused the fact that the employee cannot be usefully employed on the day in question. The “stoppage of work” is therefore not merely the absence of work for the particular employee who is to be stood down. If that were so the phrase “stoppage of work” would be superfluous. The “stoppage of work” is the cessation of work of the particular workforce in which the employee employed. A cessation of work rather than a mere reduction in the amount of available work for that workforce will constitute a “stoppage of work”: Bristow Helicopters Australia Pty Ltd v Australian Federation of Air Pilots[2017] FWCFB 487 at [45] (Catanzariti VP, Gooley DP and Wilson C).”
The UWU submitted that it is not the absence of work that is important but it is the withdrawal of labour.
Noting that industrial action may take the form of overtime bans or bans on working higher duties, the UWU submitted that if the Applicant’s propositions are correct an employer could simply say that it was not requiring overtime or the working of higher duties in which case the industrial action would be invalid.
The UWU also submitted that the position of the Applicant in relation to the meaning of “stoppage” would mean that the precise starting and finishing times of employees would need to be known. In this regard the UWU referred to the matter of Cleanaway Operations Pty Ltd v Transport Workers’ Union of Australia[20]in which Commissioner McKinnon said:
‘[13] The effect of Cleanaway's submission is that "stoppages of work" authorised by the protected action ballot in this case must be read as pertaining individually to the employees concerned, as opposed to collectively. I do not accept the submission. The term "stoppages of work" in the protected action ballot must be given its ordinary meaning and is wide enough to encompass both stoppages of work by individual employees and stoppages of work generally in the relevant workplace or part of the workplace’.
The UWU submitted that from a practical standpoint, the Applicant’s position was very individualistic and did not have regard to the ‘collective’ taking industrial action.
The UWU also submitted that the Applicant’s position undermined the legitimate protection afforded to employees in taking such action noting the dynamic working environment and that employees can be required to work outside of the hours of 6am to 6pm.
The UWU referred to clause 6.6 of the 2021 Agreement which provides:
‘Overtime, is where an employee works outside the normal working hours (6.00am to 6.00pm) or exceeds eight (8) hours between 6.00am and 6.00pm. Each day shall alone’
and submitted that working outside the hours of 6.00am and 6.00pm is therefore expressly contemplated by the 2021 Agreement.
The UWU also pointed to clause 19.4 of the 2021 Agreement which provides:
‘The ordinary hours of work prescribed herein shall be worked continuously, except for meal breaks, at the discretion of HCL between 6.00am and 6.00pm. Provided that the spread of hours may be altered by mutual agreement between HCL and the majority of employees in the plant or section of sections concerned.’
and submitted that this contemplates that working outside the hours of 6.00am and 6.00pm can be agreed.
The UWU also pointed to clause 19.21 of the 2021 Agreement which contemplates that an employee can work continuous shifts, which would mean working outside of 6.00am and 6.00pm.
The UWU also pointed to clause 21.6 of the 2021 Agreement which states:
‘An employee who works on afternoon shift will be paid an additional loading of 15% for the shift. For the purpose of the clause afternoon shift means any shift finishing after 6.00pm and at or before midnight.’
which again contemplates work outside the hours of 6.00am and 6.00pm.
The UWU submitted that it is not the case that employees cannot be required to perform work outside the hours of 6.00am and 6.00pm and it is the withdrawal of labour that is important and not the absence of work and it would be a curious feature of the Act if employees could be required to perform work but can’t take industrial action to protect them from such a requirement.
During the hearing the UWU also referred to the decision in Cadbury Schweppes Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.[21] In that matter various forms of industrial action were authorised by the ballot process and by virtue of s.478(1)(d) if the Workplace Relations Act 1996 (Cth) only the type of action commenced during the 30 day period following the declaration of the ballot results was authorised thereafter.[22] Section 478(1) of the Workplace Relations Act 1996 (Cth) is in the same terms as s.459(1) of the Act however the Act contemplates that the Commission may extend the 30 day period starting on the date of declaration of the results of the ballot. In Cadbury Schweppes Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[23] the applicant contended that the notices provided by the union, which were drafted in terms of sequential four hour stoppages, were in effect 72 hour and 48 hour stoppages. Watson VP observed that in City of Wanneroo v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union – Western Australian Branch[24] Commissioner Williams dealt with the argument that authorisation of 24 hour stoppages did not permit the taking of three consecutive 24 hours stoppages and decided that viewed objectively, the circumstances did not preclude such consecutive action being within the contemplation of the employees authorising the action.[25] Watson VP agreed with the approach of Commissioner Williams in that matter.[26]
The UWU submitted that this supports the proposition that there doesn’t need to be any work for there to be a stoppage of work but what is required is a withdrawal of labour.
Applicant submissions in reply
In relation to the UWU’s submissions putting forward the example that there can be 24 hour stoppages, the Applicant noted that it was unable to find an authority in which this has been properly considered, that is for example, can a group of employees take a 24 hour strike on a Saturday when a site is closed? The Applicant submitted that this would entirely defeat the purpose of industrial action in support of bargaining because in that case there would be no work to be done.
The Applicant submitted City of Wanneroo v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union – Western Australian Branch[27] was concerned with an entirely different argument and in the current matter it does not simply submit that it is the absence of work that is the focus but rather the focus is the cause of the stoppage. The Applicant submitted that if the cause of the stoppage is strike action, as it was in City of Wanneroo v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union – Western Australian Branch[28], then it would be protected industrial action. The Applicant noted that it was argued in City of Wanneroo v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union – Western Australian Branch[29], that in the context of rolling strikes, in order for there to be a stoppage of work, work had to restart in order to be protected. The Applicant submitted that the cause of the ‘stoppage’ if it can be so called, is as a result of the decision of the Applicant not to open its Sites between the hours of 6.00pm and 6.00am and whilst there are situations where an employee might be required to work, as a matter of fact no employees will be required to work between the hours of 6.00pm and 6.00am on the dates that the Industrial Action is proposed to be taken.
In relation to the UWU’s submissions that it is the withdrawal of labour that is required, the Applicant submitted each case must turn on its facts and if it is the case that overtime is ordinarily performed it could be industrial action if the employees determine not to perform overtime. However the Applicant submitted that if overtime is never actually performed or the threat is to not perform overtime at a time when overtime is never actually required as a matter of practice, it cannot be said that that action constitutes industrial action within the meaning given to it by s.19 of the Act as it does not include action that is authorised or agreed to by the employer.
Insofar as Cleanaway Operations Pty Ltd v Transport Workers’ Union of Australia[30]is concerned the Applicant submitted that where a matter involves a refusal of work the focus should be on whether there is a stoppage of work when an employer wants work to be performed. The Applicant submitted that it is not industrial action if the employer agrees to the employees not working as that is what the Act provides for in s.19(2).
The Applicant submitted that the real question is whether there is a withdrawal of labour when work is required to be performed.
Evidence of Mr Munnik regarding work at the Sites
Mr Munnik is the General Manager of the Applicant and has held this role since 2016. Mr Munnik gave evidence that:
the normal operating hours of the Sites are between 6.00am and 6.00pm, Monday to Friday;[31]
the Applicant does not operate outside of normal operating hours, except in very limited and uncommon circumstances;
an “urgent order" is an event where the Applicant is informed that a customer urgently requires a pharmaceutical product after the agreed customer order cut-off time and the Applicant is then obliged to pick and pack the pharmaceutical product pursuant to its contractual agreement with the pharmaceutical company;
urgent orders occur almost daily and may result in overtime having to be worked however, where overtime is required, it is typically worked by employees between the hours of 2.30pm and 6pm;
seldomly, in circumstances where there are critical orders which require urgent dispatch that day, the Sites may remain operating, with two to three workers doing overtime until approximately 7pm or 8pm at night however, this occurs very infrequently;
since January 2024 when the Eastern Creek site became fully operational, this has not happened at either site;
an “urgent call out” for product is one where the product is ordered and required to be dispatched urgently outside of normal operating hours and in this event, the Sites need to be opened specifically to process the order;
“urgent call outs” occur rarely, around 6 - 8 times a year;
in his experience in working for the Applicant over the past eight years he does not recall an urgent call out which required any workers to be on site between 11.00pm and 6.00am;
the Applicant’s enterprise agreement-covered employees are not “on-call” for urgent call outs or for any other reason outside of normal operating;
if an urgent call out occurs, the Applicant’s site supervisors receive the notification of the urgent order and make a decision about whether any workers are required to assist with performing work for the urgent order;
often site supervisors (who are not enterprise agreement covered), are able to complete the urgent order themselves, otherwise they may call a limited number of employees (maybe two to three) to see if they are willing and available for urgent work outside of the normal operating hours for the urgent call out. However the employees are not obliged or required to respond, agree to, or accept the work, and can decline to do the work without consequence;
in his experience, the only other circumstances in which the Sites operated outside of the normal operating hours are set out below and in both circumstances the Applicant gave prior notice of the requirement to work outside of normal operating hours and all employees consented to doing the work:
oduring the COVID-19 pandemic in 2020 and 2021, to manage risks associated with COVID-19 transmission, the workers were split into two shifts which did not overlap, so that the Sites operated from 6am to 11.30pm;
oin October 2023, when HCL transitioned part of its operations to the Eastern Creek site, there was a short period of time of around one month, when a limited number of people (around 20) were requested to perform a night shift from 11pm to 4am. This was not normal work but was work to transition product from one site to another, this work has completed and there is no longer a requirement for this night shift;
as at the date of this statement, there are no arrangements in place for employees to perform work between 11pm and 6am, and there is no anticipated or planned work outside of normal operating hours, on 10, 11 and 12 July 2024 or otherwise;
for the reasons above, no enterprise agreement-covered employees will be required to work between the hours of 11pm and 5.59am. [32]
During cross examination Mr Munnik confirmed that a requirement could arise on short notice to despatch products and that there can be some uncertainty as a result. Mr Munnik agreed that the Applicant is very responsive to changes at short notice and that from time to time employees will be required to work outside usual operating hours of 6am to 6pm. Mr Munnik’s evidence during cross examination suggests that while overtime in respect of urgent orders is typically worked by employees between the hours of 2.30pm and 6pm, in rare circumstances overtime may be worked outside these hours, including between the hours of 6pm and 6am. In relation to his statement that he could not recall an urgent call out which required any workers to be on site between 11.00pm and 6.00am, it was put to Mr Munnik during cross examination that he couldn’t exclude the possibility that that hasn’t happened. Mr Munnik said he was “fairly certain" it hadn’t happened but that he couldn’t exclude the possibility that it had. During cross examination Mr Munnik was asked whether he was aware of any legal barrier that would prevent employees from being requested to work outside the normal hours of 6am and 6pm. Mr Munnik indicated that he was not aware of any such barriers other than that they would not be able to work for an extended period without an appropriate break before they would be able to recommence work.
Consideration
Section 459 of the Act provides:
“Circumstances in which industrial action is authorised by protected action ballot
(1) Industrial action by employees is authorised by a protected action ballot if:
(a) the action was the subject of the ballot; and
(b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and
(c) more than 50% of the valid votes were votes approving the action; and
(d) the action commences:
(i) during the 30 - day period starting on the date of the declaration of the results of the ballot; or
(ii) if the FWC has extended that period under subsection (3)--during the extended period.
Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.”
It is not in contention that all 18 forms of industrial action identified in the PABO were endorsed by a majority of employees. As per s.459(d) the industrial action as authorised by the protected action ballot needs to have commenced during the extended period (i.e. by 19 May 2024).
It is not in contest that the protected action ballot authorised ‘an unlimited number of stoppages of work of 8 hours duration’ and that the ‘action’ commenced on 17 May 2024 before the end of the extended period was ‘a stoppage of work of 8 hours duration’. It is not in contention that if the Commission finds that the Industrial Action is an instance of ‘an unlimited number of stoppages of work of 8 hours duration’ the Industrial Action will be ‘authorised’ under s.459 of the Act and therefore protected industrial action. If the action had not commenced before the end of the extended period it will be unprotected.
The question that arises in these proceedings is whether there is ‘a stoppage of work of 8 hours duration’ in circumstances where ordinary hours of work are not ordinarily rostered between 11pm and 5.59am.
The Macquarie Dictionary defines “stoppage” as:
“1. the act of stopping; cessation of activity, et.
2. the state of being stopped.
3. the amount of anything stopped.
4. a cessation of work as a protest; strike: a 24-hour stoppage.”[33]
The Macquarie Dictionary defines “stop” to include the following:
“1. to cease from, leave off, or discontinue: to stop running.
2. to cause to cease; put an end to: to stop noise in the street.
3. to interrupt, arrest, or check (a course, proceeding, process, etc.).
4. to cut off, intercept, or withhold: to stop supplies.
5. (sometimes followed by from) to restrain, hinder, or prevent: to stop a person from doing something.
6. to prevent from proceeding, acting, operating, continuing, etc.: to stop a speaker; to stop a car.”
Implicit in the definitions above is an assumption that something will continue or proceed unless it is “stopped”. In this context, the act that would need to continue or proceed in order to be “stopped” is work, although there is no express requirement that this “work” is work inside ordinary hours.
In this regard, the Applicant submitted that each case must turn on its facts and if it is the case that overtime is ordinarily performed it could be industrial action if the employees determine not to perform overtime. However the Applicant submitted that if overtime is never actually performed or the threat is to not perform overtime at a time when overtime is never actually required as a matter of practice, it cannot be said that the action constitutes industrial action within the meaning given to it by s.19 of the Act in that industrial action does not include action that is authorised or agreed to by the employer.
I am satisfied based on the evidence of Mr Munnik that the normal operating hours of the Sites are between 6.00am and 6.00pm Monday to Friday, there are no arrangements currently in place for employees to perform work between 11pm and 6am, and there is no anticipated or planned work outside of normal operating hours, on 10, 11 and 12 July 2024 or otherwise. I am also satisfied that the Applicant does not operate outside of its normal operating hours (being between 6.00am and 6.00pm), except in very limited and uncommon circumstances. However this does not mean that the Applicant does not operate outside of the hours of 6.00am and at 6.00pm at all. Overtime may also be worked in respect of urgent orders at other times, typically between the hours of 2.30pm and 6pm, noting there are other overtime triggers in the 2021 Agreement aside from the span of hours.
It is not in contention in this matter that the type of action authorised by the protected action ballot and which remains available having regard to the provisions of s.459(1) of the Act are 8 hour stoppages of work. In Cadbury Schweppes Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[34] Watson VP said:
‘In my view industrial action which on its face confirms with the type of action authorised by a protected action ballot, and remains available having regard to the provisions of s.478(1)(d) of the Act, should not be regarded as unprotected unless its essential character is different to the type of action available. In my view the proposed action can be described as a series of consecutive four hour stoppages. It could also be described by reference to the combined effect of the stoppages amounting to a 72 hour and 48 hour stoppage. However, the description of their combined effect does not alter their character of consecutive four hour stoppages’.
In this case, there were 18 different actions authorised by the protected action ballot that were available to be taken during the extended period. Among these were:
an unlimited number of bans on overtime of an indefinite duration;
an unlimited number of stoppages of work of up to 1 hour’s duration for the purposes of speaking to the media about the reasons for industrial action;
12.an unlimited number of stoppages of work of 15 minutes duration;
13.an unlimited number of stoppages of work of up to 2 hours duration;
14.an unlimited number of stoppages of work of 4 hours duration;
15.an unlimited number of stoppages of work of 8 hours duration;
16.an unlimited number of stoppages of work of 12 hours duration;
17.an unlimited number of stoppages of work of 24 hours duration; and
18.an unlimited number of stoppages of work of indefinite duration.
As noted in Cadbury Schweppes Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia it has been held that questions asked in protected action ballots should provide those voting in the ballot with a clear and readily understood choice and be sufficiently clear to enable employees to understand the implications of the industrial action.[35]
Only one of the above actions were taken before the end of the extended period, being an 8 hour work stoppage. In a workplace where work is rarely worked between the hours of 6pm and 6am, where work between these hours would generally be considered overtime in the circumstances of the 2021 Agreement and the Applicant’s rostering practices and in circumstances where overtime bans and shorter stoppages were also voted upon in the ballot, a ‘stoppage of work of eight hours duration’ cannot be understood to mean refusal of work at a time where work is not ordinarily rostered or performed, absent rare circumstances, for seven of the eight hours falling within the period.
The majority of the hours falling within the period specified in the Second Notice are not hours where employees would be rostered to work. To the extent the notice purports to ‘stop’ work between the hours of 11pm and 5.59am in circumstances where it is unlikely that such work would be required is more akin to an overtime ban. The character of action taken between these hours is, in my view, of an essentially different character to the type of action available. An overtime ban, is described as a ban as it is essentially a prohibition. In my view the act of ‘stopping’ something goes beyond ‘banning’ something as it does not necessarily mean that an act was going to proceed absent the ban. The act of ‘stopping’ assumes that something will continue or proceed unless it is ‘stopped’. The residual hour between 6.00am and 7.00am does amount to an actual stoppage of work. It is a time at which the Applicant requires its employees to work and there is a contemplation of withdrawal of labour at this time. However, a one hour stoppage of work is not the action that is authorised.
The question arises as to why the PABO sought referred to an unlimited number of stoppages of work of 24 hours in duration if work could not be ‘stopped’ for the whole of this period, i.e. because it would not have proceeded for parts of that period. However in my view, there is a clear distinction between action of the nature proposed by the UWU in the Second Notice and a ‘24 hour stoppage’ in that the employees would, at the very least, be stopping work for the duration of their rostered hours falling within that entire period (however long that might be). While the 24 hour period may also capture overtime, a 24 hour stoppage is of an essentially different character to a stoppage that would have the only probable effect of employees not working one hour in a period in which an employer would require employees to attend for work.
In Burswood Resort (Management) Limited v United Voice[36] in which the union sought to stop work for two hours in circumstances where notice of employee claim action under s.414 of the Act had been given for a stoppage of four hours in duration Deputy President Beaumont said:
‘[49] Concerning United Voice’s contention that the Act enables variance of the industrial action in the constraints of the notice of employee claim action under s 414, I am unpersuaded that this is the case. In my view the reference to the ‘stoppage of the performance of work of 4 hours’ duration’ is the specification of the nature of the action as contemplated by s 414(6). The 4 hours’ duration cannot be cleaved from the ‘stoppage of the performance of work’ and replaced with an alternative duration. To allow otherwise would see the duration of the stoppage being altered and yet the argument would be that the nature of the industrial action remained unchanged.’
While the circumstances vary from those at hand, the inference to be drawn from the above is that the differing duration of the stoppage as specified in the notice and what was proposed to be taken would effectively change the nature of the action.
There is a need for clarify around the form in which protected industrial action can be taken and in the context of this matter, I consider that a withdrawal of labour that would only have the likely impact of a one hour actual stoppage of work, being work between the hours of 6am and 7am, is of an essentially different character than the action contemplated in the form of a ‘stoppage of work of 8 hours duration’ as authorised by the protected action ballot. To highlight this, it is of a fundamentally different character to the action that was taken and notified in the First Notice, which was a withdrawal of eight hours of labour during normal working hours (i.e. between 6.00am and 2.00pm).
For the reasons above, it appears that the Industrial Action proposed in the Second Notice would not be protected industrial action and in these circumstances the Commission must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period specified in the order. Orders to that effect will be issued in conjunction with this decision.
COMMISSIONER
Appearances:
Mr D Mahendra, Counsel, instructed by E Lutwyche of Pinsent Masons for the Applicant.
Mr J Martin, Counsel, for the United Workers’ Union.
Hearing details:
2024.
Sydney.
10 July.
[1] Cleanaway Operations Pty Ltd v Transport Workers’ Union of Australia [2020] FWC 6226 at [13].
[2] Australian Licenced Aircraft Engineers Association v Qantas Airways Ltd and Another [2022] FCAFC 50.
[3] [2022] FCAFC 50 at [128] with reference to 282 Communications, Electrical, Electronic Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Ltd (2020)[3] 282 FCR 130 at [130]-[131].
[4] Australian Licenced Aircraft Engineers Association v Qantas Airways Ltd and Another [2022] FCAFC 50 at [129].
[5] Australian Licenced Aircraft Engineers Association v Qantas Airways Ltd and Another [2022] FCAFC 50 at [131].
[6] Burwood Resort (Management) Limited v United Voice [2019] FWC 7571.
[7] Telstra Corporation Led v CEPU [2019] FWC 2266 at [17].
[8]Fair Work Act 2009 (Cth), s.524(1)(c).
[9] Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd and Another [2022] FCAFC 50 at [131].
[10] [2020] FWC 6226.
[11] [2020] FWC 6226 at [5].
[12] [2020] FWC 6226 at [6].
[13] [2020] FWC 6226 at [15].
[14] [2020] FWC 6226.
[15] 2021 Agreement, clause 22.4
[16] [2008] AIRC 135.
[17] Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 at [88].
[18] Country Fire Authority v United Firefighters ' Union of Australia [2006] 8 September [PR973841] at [20].
[19] Australian Licenced Aircraft Engineers Association v Qantas Airways Ltd and Another [2022] FCAFC 50.
[20] [2020] FWC 6226 at
[21] [2008] AIRC 1098.
[22] United Collieries Pty Ltd Construction, Forestry, mining and Energy Union (2006) 153 FCR 543; 154 IR 103.
[23] [2008] AIRC 1098.
[24] [2008] AIRC 135.
[25] United Collieries Pty Ltd Construction, Forestry, mining and Energy Union (2006) 153 FCR 543 at [11]; 154 IR 103 at [11].
[26] United Collieries Pty Ltd Construction, Forestry, mining and Energy Union (2006) 153 FCR 543 at; 154 IR 103.
[27] [2008] AIRC 135.
[28] [2008] AIRC 135.
[29] [2008] AIRC 135.
[30] [2020] FWC 6226.
[31] Munnik statement at [12].
[32] Munnik statement at [13].
[33] Word Search (macquariedictionary.com.au), accessed 10 July 2024.
[34] [2008] AIRC 1098 at [14].
[35] [2008] AIRC 1098.
[36] Burwood Resort (Management) Limited v United Voice [2019] FWC 7571.
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