Independent Education Union of Australia v Langports Pty Ltd T/A Langports English Language College
[2019] FWC 2668
•23 APRIL 2019
| [2019] FWC 2668 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.
Independent Education Union of Australia
v
Langports Pty Ltd T/A Langports English Language College
(C2019/2493)
DEPUTY PRESIDENT ASBURY | BRISBANE, 23 APRIL 2019 |
Employer response action s. 411 – Notice requirements for employer response action to be protected industrial action s. 414 – Notice not given by employer in required form before industrial action commenced – Finding that Employer action is not protected industrial action – Finding that industrial action that is not protected is happening or threatened, impending or probable – Order issued under s. 418 to stop unprotected industrial action.
OVERVIEW
[1] On Tuesday 16 April 2019, the Independent Education Union of Australia (IEU) applied for an order under s. 418 of the Fair Work Act 2009 (the Act) that Langports Pty Ltd T/A Langports English Language College (Langports) stop taking unprotected industrial action against its members. Section 420 of the Act requires that as far as practicable, the Fair Work Commission (the Commission) must determine an application for an order to stop industrial action under s. 418 within 2 days after the application is made. By notice issued at 4.08 pm on Tuesday 16 April 2019 the s. 418 application was listed for Mention/ Directions hearing before me, commencing at 5.00pm that day.
[2] Directions were issued for the parties to file and serve material and the matter was listed for hearing at 12.00 midday on Thursday 18 April 2019. In summary, the IEU and Langports have been bargaining for an enterprise agreement. A protected action ballot order was issued by the Commission on 21 March 2019, which was declared in the affirmative on 5 April 2019. The IEU gave notice on 10 April 2019 pursuant to s. 414 of the Act that its members intended to take certain forms of protected industrial action. Langports purported to give notice of and to take employer response action and on 16 April 2019, locked some of the employees out of their employment. On 18 April 2019 when the application was heard, some employees were locked out of their employment.
[3] The IEU asserts on a number of grounds that the action taken by Langports is not protected industrial action on the basis that it does not meet the legislative requirements for employer response action. At the conclusion of the hearing on Thursday 18 April 2019 and following an adjournment of 1.5 hours I gave a brief Decision on transcript in which I found that the industrial action taken by Langports by locking employees out from their employment on 16 April 2019 and subsequently is not protected industrial action because it does not meet the requirements for such action specified in the Act. I further determined that I must make an Order under s. 418 of the Act and that I considered that to ensure that industrial action which is occurring, stop and not be threatened or organised, it was necessary to make an Order that would operate from 2.45 pm on Thursday 18 April 2019 to 12.00 midday on Friday 26 April 2019. I informed the parties that I would publish expanded reasons for the Decision and Order as soon as possible, given the impending Easter holiday period. These are my reasons.
LEGISLATION
[4] Section 408 of the Act specifies three possible forms of protected industrial action: employee claim action, employee response action and employer response action. Employer response action is defined in s. 411 as follows:
“411 Employer response action
Employer response action fora proposed enterprise agreement means industrial action that:
(a) is organised or engaged in as a response to industrial action by:
(i) a bargaining representative of an employee who will be covered by the agreement; or
(ii) an employee who will be covered by the agreement; and
(b) is organised or engaged in by an employer that will be covered by the agreement against one or more employees that will be covered by the agreement; and
(c) meets the common requirements set out in Subdivision B.”
[5] Employer response action must be organised or engaged in as a response to industrial action. Industrial action is defined in s. 19 of the Act which relevantly provides:
“19 Meaning of industrial action
(1) Industrial action means action of any of the following kinds:
(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d) the lockout of employees from their employment by the employer of the employees.
Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.
(2) However, industrial action does not include the following:
(a) action by employees that is authorised or agreed to by the employer of the employees;
(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;
(c) action by an employee if:
(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.
Note: In this section, employee and employer have their ordinary meanings (see section 11).”
[6] The common requirements that apply for industrial action to be protected industrial action are set out in s. 413 of the Act as follows:
[7] In relation to notice requirements for industrial action, s. 414 of the Act provides:
“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 of employee claim action not to be given until ballot results declared
(3) A notice under subsection (1) must not be given until after the results of the protected action ballot for the employee claim action have been declared.
Notice requirements—employee response action
(4) Before a person engages in employee response 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.
Notice requirements—employer response action
(5) Before an employer engages in employer response action for a proposed enterprise agreement, the employer must:
(a) give written notice of the action to each bargaining representative of an employee who will be covered by the agreement; and
(b) take all reasonable steps to notify the employees who will be covered by the agreement of the action.
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.”
[8] Section 418 of the Act provides :
“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.”
[9] The period of an order under s. 418 of the Act must be directed to the purpose of ensuring that the relevant industrial action – that is the industrial action which appears to the Commission to be occurring, and/or threatened, impending or probable, and/or being organised – stop, not occur and/or not be organised. 1
EVIDENCE AND SUBMISSIONS
[10] Evidence on behalf of the IEU was given by:
• Lauren Louisa Thornton, ELICOS Teacher 2;
• Mark Edward Collins, ELICOS Teacher 3; and
• Margaret Ellen Keane, ELICOS Teacher 4.
[11] The witnesses for the IEU were not required for cross-examination and their statements were tendered without objection. Langports did not call evidence but tendered a number of documents without objection. A number of assertions of fact were also made by the IEU and Langports in their submissions to which no objection was taken. It is not in dispute that on 10 April 2019 the IEU gave Langports notice under s. 414 of the Act that members intended to take protected industrial action described as follows:
i. Stoppages of work for 30 minutes duration;
ii. Teachers will not communicate with students during their timetabled meal breaks;
iii. Teachers will not perform any work unless they are obviously wearing a badge displaying the following: “3 Rs Recognise Respect Reward”;
iv. Teachers will delay by 7 days the provision of results to students related to exams or tests or assessments completed by students;
v. Teachers will not perform any work unless they are wearing an item of clothing made from denim;
vi. Teachers will not mark the weekly writing focus class assessments.
[12] The notice stated that the industrial action identified in i. above would occur at 4.00 pm on 18 April 2019 and the actions identified in ii. to vi. above would commence on 16 April 2019. On 11 April 2019 the Union corrected the notice by deleting the form of industrial action listed as iv. It is not in dispute that the forms of industrial action notified by the IEU on 10 April 2019 (and corrected on 11 April) were authorised by the protected action ballot declared on 5 April 2019. Langports took no issue with the validity of the notice given by the IEU as corrected.
[13] In its submission, the IEU states that a bargaining meeting was held between the parties on 12 April 2019. At the conclusion of the meeting the IEU and two employees who had attended the meeting were given a document notifying of Langports’ intention to take Employer Response Action. The document was in the following terms:
“12 April 2019
NOTICE OF EMPLOYER RESPONSE ACTION
Following the notification of industrial action to be taken from Tuesday the 16th of April, Langports Pty Ltd has determined that it will take the following forms of Employer Response Action.
1. Any employee who participates in a 30 minute stoppage will be locked out without pay for a period of one (1) working day. Working days do not include public holidays; and
2. Any employee who participates in a second or subsequent 30 minute stoppage will be locked out without pay for a period of five (5) working days. Working days do not include public holidays; and
3. Any employee attending for work whilst wearing ‘3Rs Recognise Respect Reward’ badges or denim as specified in the Protected Action Notification will be locked out without pay for one (1) working day. Working days do not include public holidays; and
4. Any employee attending for work whilst wearing ‘3Rs Recognise Respect Reward’ badges or denim as specified in the Protected Action Notification on a second or subsequent occasion will be locked out without pay for five (5) working days. Working days do not include public holidays; and
5. Any employee who refuses to mark the weekly writing focus class assessment will be locked out without pay for one (1) working day. Working days do not include public holidays;
6. Any employee who refuses to mark the weekly writing focus class assessment will be locked out without pay for five (5) working days. Working days do not include public holidays.
As noted above, any time an employee is locked out they are not paid and do not accrue leave, although the locked out period does not break the continuity of employment.” 5
[14] Ms Thornton and Mr Collins state that on 15 April 2019 a meeting was called for all teaching staff. At the meeting a further document headed “NOTICE OF EMPLOYER RESPONSE ACTION” was issued to employees. That Notice is in identical terms to the Notice issued on 12 April except that it is dated 15 April 2019 and at point 6 states that a refusal to mark the weekly writing focus class assessment on a second or subsequent occasion will result in employees being locked out for five working days. 6 At the staff meeting on 15 April 2019 Langports also handed employees a four page document stating that: “13 teachers had applied and been granted ‘Protected Industrial Action’ status”. The document goes on to respond to allegations said to have been made by the IEU about Langports and states:
“On Tuesday (tomorrow) some union members may take industrial action and we have given notice that if they do they will be locked out for a period of one day. If there are further periods of industrial action those taking such action will be locked out for a further 5 working days.” 7
[15] Ms Thornton and Mr Collins gave evidence about the events of 16 April 2019 which can be summarised as follows. On that date, Ms Thornton and Mr Collins attended work at the normal time. Prior to Ms Thornton and Mr Collins commencing work, the Director of Studies approached teachers and advised that he would appreciate being informed who would be taking protected industrial action. Ms Thornton and Mr Collins left the staff room and entered the office of the Director of Studies and informed him that they would be taking protected industrial action by wearing badges stating: “3 Rs Recognise Respect Reward” (campaign badges). The Director of Studies informed them that those taking protected action by wearing such badges would be locked out. Ms Thornton and Mr Collins returned to the staff room and at approximately 5 minutes before their normal starting time, put the campaign badges on.
[16] At approximately 9.00 am (their normal start time) Ms Thornton and Mr Collins asked the Director of Studies what they should do and were directed not to attend their classrooms and to wait in the staff room. Shortly after that, and after their normal starting time of 9.00 am, the Director of Studies returned with a further letter in the following terms which was handed to Ms Thornton and Mr Collins and other teachers who had indicated that they would be participating in industrial action by wearing campaign badges:
“NOTICE OF EMPLOYER RESPONSE ACTION
As previously advised, Langports will be locking you out in response to your Industrial Action. You will be locked out for Tuesday the 16th of April with no pay. During this period you are not permitted to enter Langports premises, use the Langports email or intranet. You are also not permitted to communicate with any Langports students in relation to any class issue, in relation to the Industrial Action or your conditions of employment.
Langports Management.” 8
[17] This notice was not given to the IEU. Ms Thornton and Mr Collins then left Langports’ premises in line with the direction they had been given. The IEU also tendered a further document provided by Langports to the Union at 6.15 pm on 16 April 2019 by email. It is the IEU’s belief that this document was provided to a number of employees on Wednesday 17 April 2019 although the Union was not aware of the full detail of its distribution. That document is in the following terms:
“NOTICE OF EMPLOYER RESPONSE ACTION
As previously advised, Langports will be locking out employees who are taking protected industrial action. Employees participating in repeat or further protected industrial action will be locked out from Wednesday 17th of April with no pay
Depending upon the type of industrial action being taken by employees this lockout could be for a period or 1 working day or 5 working days in accordance with previous notices provided. Employees who are being locked out will be notified of the period of the lockout.
During this period, employees subject to the lockout are not permitted to enter Langports premises, use the Langports email or intranet. Locked out employees are also not permitted to communicate with Langports students in relation to any class issue, in relation to the industrial action, or their conditions of employment.
Langports Pty Ltd Management
16 April 2019.” 9
[18] The IEU submits that the provisions of the Act in relation to notice requirements for protected industrial action make clear that before employer response action can be taken, the employer must:
• Give notice before they engage in the industrial action;
• Take all reasonable steps to give the notice to all employees who will be covered by the proposed Enterprise Agreement; and
• Specify the date on which the industrial action will commence.
[19] The IEU submits that the notice issued by Langfords on 12 April 2019, and the amended notice given to employees on 15 April 2019, did not meet the requirements of the Fair Work Act. In particular those notices did not specify the date on which the employer response action was to start as required by s. 414(6). The consequence of failure to comply with mandatory requirements of the Act is that the purported notice of employer response action is of no effect and any action taken in reliance on those documents is not protected industrial action.
[20] The IEU further submits that the deficiency in the employer’s documentation was not remedied by the undated document given to employees who participated in protected industrial action on 16 April 2019. In relation to that notice the IEU submits that the notice was given to employees after the normal commencing time and after the purported employer response action had been initiated by virtue of employees being requested not to commence their normal work for the day. The IEU also asserts that it is the only bargaining representative for the proposed agreement and did not receive a copy of this notice. Each of these deficiencies is fatal to the validity of the notice.
[21] The IEU submits that the evidence shows that on at least two occasions – 12 April 2019 and 15 April 2019 – Langports provided employees with a document titled “Notice of Employer Response Action” which did not meet the requirements of the Act, on the basis that those documents did not did not specify the day on which the employer response action was to commence as required by s. 414(6). According to the IEU the consequence of the failure to comply with the mandatory requirements of the Act is that the purported notice of employer response action is of no effect and the lockout on 16 April 2019 was not protected industrial action.
[22] The IEU submits that the evidence of Ms Thornton and Mr Collins establishes that industrial action taken by employees wearing campaign badges, which the lockout purported to be in response to, had already commenced when the notice was given. The IEU also submits that the evidence of Ms Keane – who was at work on Tuesday 16 April 2019, and states she did not receive the purported rectification document – is evidence that all reasonable steps to notify all employees who would be covered by the proposed enterprise agreement did not occur. The IEU also submits that the second notice provided to employees on 17 April 2019 is deficient because it does not cover future protected industrial action by employees. As a consequence, the situation remains that there is no valid notice of employer response action.
[23] I was also informed at the hearing of this application that at least one employee was locked out from his employment on 18 April 2019 in response to that employee taking protected industrial action by wearing an item of clothing made from denim. That employee was present at the hearing and Langports did not contest this submission.
[24] In its written submissions in response to the submissions of the IEU, Langports conceded that the notice handed to employees on 16th of April 2019 and attached to the submissions of the IEU as Annexure 2 (Exhibit A6) does not meet the requirements in s. 414(5) of the Act and is not relied on by the Company as meeting its obligations in this regard. According to Langports, the chronology of events was that on 12 April the Company provided a notice to bargaining representatives which was then “redated” 15 April and handed to all teachers at a staff meeting on that date. Langports further contends that the employer response action did not commence before the employees had commenced industrial action by donning their campaign badges.
[25] According to Langports a clarification of its dress policy was distributed on 24 April 2019, stating that wearing clothing bearing industrial slogans or industrial campaign slogans is not appropriate dress at work. As a result, when employees decided to don campaign badges at 9.00 am in breach of the dress policy they commenced industrial action because they were not allowed to perform duties while wearing them. Langports further submits that “the notice advising of the lockout clearly demonstrates that permission had not been granted for the wearing of the badges and the direction for employees to leave the Company’s premises at 9.05 am was employer response action which commenced after the commencement of the protected industrial action.”
[26] Langports submits that because the notices provided to the IEU and employees on 12 and 15 April 2019 commence with the words: “Following the notice of industrial action to be taken from Tuesday 16 April…” and then list of the type of employer response action that will be taken and its duration, that it is clear that the employer response action will commence on 16 April 2019. Langports also submits that the Managing Director of Langports Ms France, confirmed in a staff meeting on 15 April 2019 that the employer response action would start on 16 April.
[27] It is further submitted by Langports that the Act does not require itemised detail of each time employer response action will be taken going into the future. The only requirement is that employees are advised of the date on which it will start. According to Langports, employees were advised that the employer response action would start from 16 April and this was confirmed by Ms France on 15 April in the staff meeting held on that date. There is no prohibition in the Act for a series of lockouts to be undertaken with only notification provided of the first day the series commences.
[28] In relation to the obligation to take reasonable steps to notify the employees who will be covered by the agreement of the action, Langports submits that the notices dated 12 and 15 April 2019 were handed to every teaching staff member or left on their desks. The notices were also posted on the notice board in the staff room. Accordingly, it is contended that Langports took reasonable steps to provide the required notice to all staff who would be covered by the proposed agreement.
[29] Langports submitted that the IEU application should be dismissed and the employer response action taken on 16 April 2019 confirmed as protected industrial action. In the alternative, Langports submits that if the Commission is of the view that the employer response action commencing on 16 April 2019 is not protected, then any subsequent employer response action specified in the second notice dated 16 April 2019 (Exhibit A7) be declared to be protected industrial action so that unlawful industrial action on the part of Langports is not imminent, probable or likely. In oral submissions, Langports contended that any lack of detail about the nature of the employer response action in the second notice issued on 16 April 2019 (Exhibit A7) is cured if that notice is read in conjunction with earlier documents, including the notices issued on 12 and 15 April 2019 which contain that detail.
CONSIDERATION
[30] The evidence in the present case establishes that on 10 April 2019 the IEU as bargaining representative for its members employed by Langports notified of the intention to take protected industrial action of a kind approved in a protected action ballot declared on 5 April 2019 which included: “Teachers will not perform any work unless they are obviously wearing a badge displaying the following: 3 Rs Recognise Respect Reward”. Langports does not dispute that wearing campaign badges while performing work is industrial action, on the basis that it has a policy prohibiting the wearing of such badges while employees are working.
[31] At approximately 8.55 am on Tuesday 16 April 2019, some employees put on campaign badges. The employees were wearing those badges at their normal starting time of 9.00 am and accordingly were taking protected industrial action at that point. The employees were directed to leave the workplace at or around 9.05 am and were locked out from their employment at that time. Langports asserts that the lockout was employer response action and is protected industrial action under the Act. In support of this assertion, Langports relies on various written notices given to employees commencing on 12 April 2019. The notices given to employees were identified in the proceedings as follows:
• Written notice given to employees and the IEU on 12 April 2019 - Annexure E to the IEU application under s. 418;
• “Re-dated” written notice given to employees and the IEU on 15 April 2019 – Exhibit A4;
• Written notice given to employees and not the IEU on or around 9.05 am on 16 April 2019 – Exhibit A6;
• Written notice given to the IEU by email at 6.15 pm on 16 April 2019 and to employees on Wednesday 17 April 2019 – Exhibit A7.
[32] Langports also relies on a four page letter setting out Langport’s views about the IEU and its bargaining tactics which included a statement to the effect that if employees took protected industrial action on 16 April they would be locked out for a period of one day and that those taking further protected industrial action would be locked out for a period of 5 working days. 10 That letter was given to employees at a staff meeting held on 15 April 2019 and it is submitted that oral advice about the contents of the letter was also given to employees at that meeting.
[33] In order for the lockout to be protected industrial action under the Act, it must be employer response action as defined in s. 411. By virtue of s. 411(a) and (b) of the Act, employer response action is industrial action that is organised or engaged in as a response to industrial action by bargaining representatives of employees or employees and is organised or engaged in by an employer against one or more employees that will be covered by an agreement. By virtue of s. 411(c) employer response action must also meet the relevant common requirements in Subdivision B of Division 2 of Part 3-3 of the Act.
[34] That Subdivision commences with s. 413 which sets out common requirements for industrial action to be protected industrial action. Relevantly for the present case those requirements include that the notice requirements in s. 414 must have been met in relation to industrial action (s.413(4)). The notice requirements in relation to employer response action are found in s. 414(5) of the Act and a notice of employer response action must also comply with s. 414(6). I turn now to consider those requirements.
[35] Section 414(5) of the Act requires that “before” an employer engages in employer response action the employer “must give written notice of the action” to each bargaining representative of an employee who will be covered by the proposed agreement and take all reasonable steps to notify employees who will be covered by the agreement of “the action.” The term “the action” in s. 414(5) (and s. 414(6) refers to the employer response action in respect of which notice is required to be given.
[36] As s. 414(5) makes clear, notice of employer response action is required to given before the employer has implemented such action. While there is no minimum time period in which notice of employer response action must be given, notice given after the employer has already taken the action said to be employer response action, does not meet the requirements of s. 414(5) of the Act. I am also of the view that in order to be effective notice for the purposes of s. 414(5), the notice must describe the action that the employer is giving notice of so that it can properly be said to be notice of that action.
[37] The ordinary meaning of the term “notice” used in the context of s. 414(5) of the Act, is an intimation or warning to allow preparations to be made. This meaning is supported by the requirement in s. 414(5) of the Act that the notice be given writing. It is also consistent with the requirement in s. 414(6) that any of the forms of notice given under s. 414 of the Act “must specify the nature of the action and the day on which it will begin”. The ordinary meaning of the term “specify” is to name or mention expressly. The “nature” of a thing refers to its innate or essential qualities or character. 11
[38] The rationale for legislative provisions dealing with notice requirements for protected industrial action was explained by the Full Court of the Federal Court in Davids Distribution Pty Ltd v National Union of Worker, 12(referred to by the IEU in its submissions) which considered the effect of s. 170MO(5) of the former Workplace Relations Act 1996. Section 170MO(5) of the former Act required that a written notice or notification in relation to protected industrial action (including a lockout) state “the nature of the intended action and the day when it will begin”. In Davids the Full Court overturned a judgment of North J which held that such notice must refer to the legislative definition of industrial action. In relation to the contents of a notice for the purposes of taking protected industrial action, the Full Court stated:
“[84] The question addressed by North J in the lengthy passage just quoted is one of considerable difficulty, about which people may reasonably reach different conclusions. Parliament did not indicate what degree of specificity it intended by the term "nature of the intended action". To interpret this term, on the one extreme, as requiring no more than an indication of industrial action, as argued by NUW, would be significantly to devalue s 170Mo(5); the notice would provide little information. To interpret it, on the other extreme, as requiring precise details of every future act or omission would be to impose on the giver of a notice an obligation almost impossible to fulfil. Industrial disputes are dynamic affairs. Decisions as to future steps often need to be made at short notice, sometimes in response to actions of the opposing party or other people, including governments, and changing circumstances. 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 Div 8 of Pt VIB of the Act; it would be difficult for a party to an industrial dispute to obtain the protection contemplated by the Division.
[85] North J appreciated these points. He also appreciated the need for simplicity of application and certainty. His answer was to relate the phrase "nature of the intended action" to the various paragraphs in the s 4 definition of "industrial action". However, while we appreciate the factors that drove North J to that answer, we have difficulties with it. In the first place, nowhere in the Act is there any cross-reference between the s 4 definition and s 170MO(5). The subsection does not use the term "industrial action". Rather it uses the definite article, in speaking of "the intended action". It seems to us this implies a measure of particularity greater than would be conveyed merely by quoting the words of one of the paragraphs in the definition. On this approach, an employees' notice that adopted the wording of par (c) of the definition would cover a total ban on a particular work activity, a partial ban or limitation or a ban on the use of particular equipment. It would tell the employer very little. The converse comment may be made about an employer's notice under s 170Mu(3) that referred merely to a "lockout".
[86] Another reason for rejecting North J's approach is that it places a premium on legalism. Framers of notices would need to undertake a careful analysis of the definition of "industrial action", in the way North J did, in order to identify the paragraph which best fits the contemplated activity. Bearing in mind that notices will often, perhaps ordinarily, be prepared by non-lawyers acting without legal advice, it is unlikely Parliament intended that result.
[87] We think s 170MO(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 shutdown. If warned in advance of a ban that might affect the continued operation of that plant, the employer might choose a controlled shutdown 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 lock out 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".
[89] If we are correct in this approach, it follows that a notice that refers only to "bans and rolling stoppages", without any indication of the nature of the bans or the location of the rolling stoppages, does not adequately disclose "the nature of the intended action". It certainly does not convey to a reader an intention to mount a picket at which truck drivers will be hindered in entering the employer's premises.”
[39] The Full Court in Davids also referred to the judgement of Wilcox J in Construction, Forestry, Mining and Energy Union v Curragh Queensland Mining Limited 13in which his honour considered whether an earlier notice about one kind of industrial action given in the required time could be relied on so that industrial action of a different kind which was not notified in the required time, would be protected. His Honour held that the first notice could not have such effect on the basis that:
“The position is not clear but it is possible this notice gave three clear days’ notice of proposed industrial action. However, it identified the proposed industrial action as ‘overtime bans, bans on the use of contractors, work to rule, stop-work meetings and rolling stoppages’. That type of industrial action is different in kind from a complete cessation of work, which was the which was the form of industrial action in place on 6 August 1997. Section 170MO(2) of the Act requires at least three working days’ written notice of the intention to take the action. No doubt some latitude is permissible, having regard to the dynamics of industrial conflict, but I think the Act should be construed as protecting only industrial action of the same kind as that described in the notice.” 14
[40] The principles set out by the Full Court of the Federal Court in Davids are relevant to the notice provisions for industrial action to be protected in s. 414 of the present Act. Like s.170MO(5) of the former Act, ss. 414(5) and (6) of the current Act do not refer to industrial action but to employer response action or action. The obvious purpose of the notice requirements is to enable the party affected by the action to take appropriate defensive action.
[41] I turn now to consider whether Langports met these requirements in relation to locking employees out from their employment commencing on 16 April 2019. It is true that the notices given to employees and the IEU by Langports on 12 and 15 April 2019 specify the nature of the employer response action. However, I do not accept that those notices specify when the employer response action will begin.
[42] The notices are dated 12 and 15 April 2019 respectively. The only reference to a date on which action is to be taken is found in the first paragraph and relates to the industrial action to be taken by employees. The notices go on to specify the nature of the employer response action that Langports intends to take – being locking employees out from their employment for varying periods depending on the industrial action taken by employees – but do not specify the day on which the action set out in the notices will start. While it may not be necessary for a valid notice of employer response action to specify the time at which each lockout of an employee might commence, at very least it is required to specify the date on which the lockout will start – in the present case 16 April 2019.
[43] I do not accept that the notices given on 12 or 15 April 2019 are valid because it can be inferred that the lockout will commence when employees commence taking protected industrial action of a specified kind. A notice that simply specifies an occurrence or occurrences which will trigger employer response action is not in my view sufficient to meet the requirement of a notice specifying the day on which employer response action will start. This is because the reference in s. 414(6) to the action is a reference to the employer response action which is the subject of the notice and not to industrial action taken by employees to which the employer response action relates. Accordingly, a notice which requires employees to infer a date on which employer response action will start, by reference to the date on which their own industrial action starts, does not meet the requirements of s. 414(6) on the basis that such notice does not specify the day on which employer action will start. For these reasons, the notices given by Langports on 12 and 15 April 2019 did not meet the requirements in s. 414(6) of the Act and a lockout of employees from their employment commencing on 16 April 2019 on the basis of either of those notices is not employer response action as defined in s. 411 of the Act and as a consequence is not protected industrial action as provided for in s. 408.
[44] As Langports concedes (in my view, correctly) the first notice given on 16 April 2019 is not a valid notice because it was not given to the IEU as bargaining representative for the Agreement. That notice also suffers from the same deficiencies as the second notice given dated 16 April 2019 given to the IEU on that date and given to the employees on 17 April 2019. While the second notice dated 16 April 2019 specifies the day on which the employer response action will start it does not specify the nature of the employer response action. As evidenced by the notices issued on 12 and 15 April 2019, the lockouts that Langports intended to implement were of varying duration depending on the nature of the industrial action taken by the employees. It is clear from Langports’ submission to the Commssion that when Langports locked employees out from their employment on 16 April 2019 it intended to do so for one day on the basis that it was the first occasion on which they were taking industrial action by wearing campaign badges.
[45] There were also other forms of industrial action by employees and response action by Langports referred to in the notices of 12 and 15 April 2019. It was Langports’ intention – consistent with the advice in the notices to employees of 12 and 15 April 2019 – to lock employees out from their employment for longer periods if they repeated their industrial action. It was therefore not sufficient to simply indicate in the notices issued on 16 April 2019 that the employer response action would be locking out employees from their employment. Locking out employees for periods of one day and five days for a range of reasons are in my view, different kinds of industrial action. Further, the second notice dated 16 April 2019 states that “Employees who are being locked out will be advised of the period of the lockout.” Clearly Langports did not intend that the notice would meet all of its obligations under s414(5) and s.414(6) of the Act, and employees were entitled to expect further notice before they were locked out on the basis of what was stated in the second notice dated 16 April 2019.
[46] I do not accept the submissions of Langports that the failure to specify the nature of the employer response action in the second notice dated 16 April 2019 is cured by the fact that this information was provided in the notices given on 12 April and 15 April and the letter to employees of 15 April 2019. Employees should not have to infer the nature of employer response action from earlier notices setting out that action. This is particularly so in the present case where the earlier notices are not valid. Further, those earlier notices specify a range of periods over which employees may be locked out from their employment which are dependent on the employees taking certain action. In order to comply with the requirements of s. 414(5) and s. 414(6) the written notice given to employees must be complete and must specify the nature of the action and the day on which it will begin. Compliance cannot be achieved by a piecemeal approach of giving several notices at different times which employees are required to refer to in order to understand the action that is to be taken against them by the employer.
[47] Langports’ submission that the lockout started after employees took protected industrial action is not the point. The relevant point is that before Langports engaged in employer response action by locking out employees from their employment the IEU and employees had not been given written notice of the employer response action in accordance with the requirements on s. 414(5) and s. 414(6). Accordingly when Langports locked employees out of their employment on 16 April 2019, Langports took unprotected industrial action against those employees.
[48] At the hearing on 18 April 2019 Langports made no concessions about its conduct in locking employees out and gave no indication that it would not continue lockouts either on the basis of the second notice it issued to employees on 16 April 2019 or on the basis of a further notice which Langports submitted it could issue after the hearing on 18 April 2019. Langports did not dispute that the lockouts were continuing on 18 April 2019 when the IEU application was heard.
CONCLUSION
[49] It appears that industrial action by Langports that is not protected industrial action is happening and is threatened, impending or probable. Accordingly, I must make an Order under s. 418 of the Act that such industrial action stop and not occur. For reasons set out above, the fourth notice given by Langports is not valid and cannot be relied on as notice of employer response action after 16 April 2019.
[50] I also do not accept that I should refrain from making an Order under s. 418 of the Act because Langports, having been found to have failed to issue a valid notice of employer response action, submits that it could simply issue a further notice in conformity with the requirements of the Act.
[51] To date Langports has made four unsuccessful attempts to issue a notice of employer response action in compliance with the clear provisions of the Act in relation to such notice. The fact that the Company may eventually succeed and issue a valid notice is not grounds to refuse to issue an Order under s. 418 of the Act in the face of current non-compliance which is continuing. On the basis of past conduct there is a possibility that Langports may again fail to issue a valid notice in relation to employer response action. For a party involved in enterprise bargaining to take unprotected industrial action is a serious matter with significant consequences. The requirements in Subdivision B for industrial action to be protected are common requirements and should be adhered to by all parties.
[52] For these reasons I considered that to ensure that the unprotected industrial action which I found to have been occurring, stop, and not be threatened or organised, it was necessary to make an Order under s. 418 of the Act that operates from 2.45 pm on Thursday 17 April 2019 to 12.00 midday on 26 April 2019 and an Order 15 to that effect was issued on 17 April 2019.
DEPUTY PRESIDENT
Appearances:
Mr J Spriggs and Mr S Wills on behalf of the Applicant.
Mr C Pollard of CTMA Workplace Consulting and Ms A France on behalf of the Respondent.
Hearing details:
2019.
18 April.
Brisbane.
Printed by authority of the Commonwealth Government Printer
<PR707174>
1 United Voice v Foster’s Australia Pty Ltd [2014] FWCFB 4104 at [38].
2 Exhibit A1 – Statutory Declaration of Loren Louisa Thornton.
3 Exhibit A2 – Statutory Declaration of Mark Edward Collins.
4 Exhibit A3 – Statutory Declaration of Margaret Ellen Keane.
5 Form F14 Application for an order to stop etc. (unprotected industrial) action filed by IEU on 16 April 2019 Annexure E.
6 Exhibit A4.
7 Exhibit A5.
8 Exhibit A5.
9 Exhibit A7.
10 Exhibit A5.
11 The Australian Concise Oxford Dictionary.
12 (1999) 91 FCR 463.
13 Unreported, Federal Court, Wilcox J, No NG 632 of 1997.
14 Ibid quoted in Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463.
15 PR707229.
0
2
0