IPM Operations & Maintenance Loy Yang Pty Ltd v Construction, Forestry, Mining and Energy Union

[2013] FWC 1467

[2013] FWC 1467

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action

IPM Operations & Maintenance Loy Yang Pty Ltd
v
Construction, Forestry, Mining and Energy Union; Australian Municipal, Administrative, Clerical and Services Union; Keith Clark
(C2013/3232)

COMMISSIONER BISSETT MELBOURNE, 14 MARCH 2013

Alleged industrial action at Loy Yang B Power Station.

[1] On 22 February 2013 I issued brief reasons for my decision 1 not to grant an application by IPM Operations & Maintenance Loy Yang Pty Ltd (‘IPM’ or the Applicant) to make an order pursuant to s.418 of the Fair Work Act 2009 (the Act) in respect of a notice of intention to take employee response action given by the Construction, Forestry, Mining and Energy Union (CFMEU), the Australian Municipal, Administrative, Clerical and Services Union (ASU) and Mr Keith Clark (collectively ‘the bargaining representatives’ or the Respondents) in accordance with the requirements of s.414 of the Act. In that decision I indicated that I would provide detailed reasons for my decision. These are those reasons.

[2] On 31 January 2012 the CFMEU, the ASU and Keith Clark each gave notice of intent to take employee claim action. The notices are each in the same form.

[3] The notice given is that employees for whom each of the CFMEU and the ASU, and Mr Clark is the bargaining representative intend to take protected industrial action as follows:

1. A stoppage of work of one (1) hour in duration by day work employees (not rostered to shift work) commencing on Friday, 8 February 2013 at 3:00pm.

2. Bans on the working of higher duties by day work employees (not those rostered to shift work) commencing on Friday, 8 February 2013 at 4:00pm and continuing thereafter for an indefinite period.

3. Bans on the working of overtime by day work employees (not those rostered to shift work) commencing in Friday, 8 February 2013 at 4:00pm and continuing thereafter for an indefinite period.

4. Bans limiting the output of individual generators to four hundred megawatts (400 MW) between the hours of 7:00am and 7:00pm commencing on Wednesday, 6 February 2013 and continuing on a daily basis thereafter between the same times specified for an indefinite period.

[4] The Applicant does not take issue with the proposed action notified in points 1-3 of the notice but says the proposed action at 4 does not meet the requirements of the Act, in particular s.414(6) of the Act in that it does not specify the nature of the action to be taken and further that the action taken in point 4 is not a ban in the true meaning of the word.

[5] The Applicant raises the following deficiencies with the notice:

• That the notice specifies the effect of the ban and not the nature of the ban;



• That the notice misstates the nature of the action;



• That the Applicant cannot know when the action will commence and when it will stop;



• That the Applicant cannot know who will take the industrial action.

[6] I deal with each of these issues below.

Other relevant matters

[7] This is the second time, in the current round of bargaining, that the bargaining representatives have indicated an intention to take protected industrial action. As it is relevant to a consideration of whether point 4 of the current notice meets the requirements of the Act I understand that the previous notice was of a similar form except that the generator output was limited to 450 MW and the time period within which the action was to be taken was shorter. I comprehend the form of the notice of the action, in all relevant respects, to have been the same. The industrial action subject to this first notice took place between 23 January and 5 February 2013.

[8] IPM operates two generators at Loy Yang, both with a maximum output of 525 megawatts (MW). It supplies electricity to the Victorian and national electricity markets. It is currently in bargaining with the bargaining representatives for an enterprise agreement.

[9] The parties are aware that, at the time I heard the application by IPM, I had, the previous evening, issued a decision in EnergyAustralia Yallourn Pty Ltd v CFMEU 2in which I dismissed an application by EnergyAustrlia Yallourn for an order under s.418 of the Act in respect of employee response action notified by the CFMEU where the notice was of a similar form and the matters raised went to similar issues.

[10] IPM has appealed my initial decision. This appeal was part heard on 28 February 2013. The final disposition of that appeal awaits these reasons.

Legislation

[11] Section 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.

[12] As is relevant s.170MO(5) of the Workplace Relations Act 1996 (the WR Act) read as follows:

170MO Notice of action to be given

……

(5) A written notice or other notification under this section must state the nature of the intended action and the day when it will begin.

[13] Industrial action is defined in the Act:

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.

Submissions and witnesses

[14] Substantial submissions were made on the record and I have also had the benefit of written submissions in making this decision. I have also had access to the appeal documents.

[15] Mr Lance Thomas, General Manager Strategy Projects & Development, gave evidence for IPM in the proceedings.

[16] The CFMEU and Mr Clark made joint submissions and the ASU made separate submissions, however, these submissions generally concur and are dealt with collectively in the decision unless specific identification is required.

[17] I have taken into account all of the submissions made and the evidence of Mr Thomas in coming to my decision.

[18] For ease of reading there are parts if my initial decision which have been replicated here. That decision remains relevant in the reasons for my decision.

Consideration of the issues

The notice specifies the effect and not the nature of the bans

Specifying the nature of the action in the context of the enterprise

[19] IPM submits that the notices provided by each of the bargaining representatives fail to adequately specify the nature of the industrial action and therefore do not meet the requirements of s.414(6) of the Act. IPM says that to ‘specify’ requires a higher degree of precision than a requirement under s.170MO(5) of the WR Act to ‘state’, and that degree of precision has not been given.

[20] The notices given by the bargaining representatives state that the action shall be a ‘ban limiting the output of individual generators...’. IPM says that as such the notices do not specify the action to be taken at all but rather specify the effect of the action.

[21] The Respondents submit that the notices comply with the requirements of the Act and meet the tests for such notices as enunciated in the relevant authorities. They say that the Applicant knows, from the notices, the nature of the industrial action, the duration of the industrial action and the maximum number of employees who will engage in the industrial action.

[22] Taking into account the particulars of the enterprise the Respondents submit that the notices comply with the requirements of s.414(6) of the Act.

[23] The inquiry is if, taking into account the authorities on purpose and content, the notice adequately specifies the nature of the action.

[24] IPM argues that the notice requirements in s.414(6) of the Act are more onerous than those requirements contained in s.170MO(5) of the WR Act. As such, it says, that whilst the observations in Davids Distribution Pty Ltd v National Union of Workers 3 (Davids Distribution) with respect to the purpose of the notice is not changed, the requirements of the notice have. IPM submits that the decision of the Full Bench of this Commission in Telstra Corporation Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 4(Telstra) provides appropriate authority on the need for the notice to be in ‘more positive terms’ than was required of a notice under s.170MO(5).

[25] In Construction, Forestry, Mining and Energy Union v Energy Pty Ltd 5 (CFMEU v Yallourn) Merkel J found that:

Whether a notice is sufficient to comply with s.170MO(5) can involve questions of fact but will more usually involve questions of degree. When assessing such questions, as was stated in Davids Distribution (at 495; 228), it is important that the inquiry does not place a premium on legalism; rather the inquiry is as to what the notice would convey ‘‘in ordinary industrial English’’ to the reader. Further, the purposes for which the notice is given (to which I have referred above) can be relevant factors in determining whether a notice adequately or sufficiently conveys the nature of the industrial action intended to be taken: cf A1 v National Crime Authority (1996) 67 FCR 464 at 479-481 and National Crime Authority v A1 (1997) 75 FCR 274 at 277 and 294.

[26] His Honour was considering a notice under s.170MO(5) of the WR Act, his caution to not place a premium of legalism but rather to enquire on the ‘ordinary industrial English’ is relevant.

[27] In the Fair Work Bill 2008 Explanatory Memorandum it is said of s.414(6) of the Act that:

Subclause 414(6) details the information required to be included in the notice of intended employee claim action, employee response action or employer response action, as the case may be. The notice must specify the nature of the industrial action to be taken and the day on which the intended industrial action will start. The content requirements contained in this subclause substantially replicate the requirements in subsection 441(6) of the WR Act. 6

[28] The Explanatory Memorandum does not suggest a substantial change in the requirements of the notice under s.414(6) of the Act from that previously required under the WR Act (noting that s.441(6) of the WR Act is in the same form as s.170MO(5)).

[29] In my opinion caution should be taken in considering words in isolation as they appear in s.414(6) of the Act. The requirement is that the notice ‘specify the nature’ of the industrial action. That is, that the nature of the action be specified, not the action itself. It would be wrong, from a basic approach to statutory construction, to concentrate on the definition of ‘specify’ without a consideration of the word in context.

[30] In Telstra the Full Bench considered the effect of the change in wording in the current Act from that in the WR Act. They noted that the obligation under s.414(6) is in more positive terms in contrast to the language of s.170MO(5). The Full Bench then observed that

in considering if the notice meets the requirements to specify the industrial action it is necessary to have regard to the purpose of the notice and the relevant circumstances, in particular the nature of the employer’s undertaking. 7

[31] It further observed that:

Whether a particular notice meets the requirements of s.414(6) will depend upon the terms of the notice and the industrial context. Every case is different and each case must be looked at having regard to all of the relevant considerations.’ 8

[32] In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Pinnacle Career Development Pty Ltd 9 (Pinnacle), a decision made after the decision in Telstra, Greenwood J found that:

In Telstra at [12] the Full Bench observed that the purpose of the notice requirement is to give the “recipient” (put more generally) of the notice an opportunity to respond to the action by making relevant preparations or considering a particular response. That purpose is entirely consistent with the observations about the purpose of notice provisions expressed by the Full Court of the Federal Court in Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999) 91 FCR 463 at [87]. In Telstra at [12], the Full Bench also noted that “[w]hether the notice is adequate may depend on the nature of the employer’s operations including their size, the number of employees, the number of locations, the time at which the action is to occur and the employees potentially taking the industrial action”. In Telstra, the question in issue was the adequacy of notice given on behalf of employees in circumstances where Telstra employed 34,000 employees.

In the context of discussing the adequacy of the notice in describing the proposed action, the Full Bench at [16] observed that it is implicit that the description of the action should be sufficient to put the employer (in that case) in a position to make reasonable preparations to deal with the effect of the industrial action. In examining the description “indefinite stoppages” used in the notice (as a description of the proposed action), the Full Bench at [14] noted that the phrase “indefinite stoppages” refers to a concept which is well recognised in workplace relations of a stoppage which is unlimited in time at its commencement. The Full Bench rejected Telstra’s suggestion that a notice using the term “indefinite stoppages” could never comply with s 414(6) of adequate specification of action. Whether a notice does comply “will depend on the context in which it appears in the notice and the surrounding circumstances”: [14].

These observations suggest that the adequacy of a notice for the purposes of s 414(6) must be examined in context. An assessment of adequacy must take account of all the circumstances and examine expressions used in the context of whether the concepts embodied in the expressions are well recognised in workplace relations. The adequacy of the notice must take account of the practical applied circumstances of the workplace and whether the purpose of a notice is served by giving the addressee an understanding of what is contemplated and when it will occur so as to provide the recipient with an opportunity to consider his or her position and act or respond in a particular way (or as in this case, engage in the foreshadowed conduct set out in the notices “RF3” and “RF7” to which the challenged notices respond). 10

[33] In determining if the notice meets the requirements of the Act it is therefore relevant to consider the circumstances, including the nature of the enterprise, as well as the purpose of the notice.

[34] Mr Thomas’ evidence is that IPM has between 142 and 145 employees at Loy Yang, including six managers. Each of the two generators normally operates at 525 megawatts (MW).

[35] The output of the generators is controlled by the operators. The output levels can be altered by reducing fuel, reducing air or by the operators selecting an output target. 11

[36] As to the options of reducing air or fuel to reduce generator output Mr Thomas is not aware of fuel reduction ever being used to limit output in his five years at Loy Yang and says that air reduction may have been used as an outcome of a (system) failure of fans but that it has never been used as a deliberate act to limit output. 12 If fuel reduction was used to limit generator output the output would be ‘variable’13 and, while it is possible for an operator to intervene to control the output, it is not probable that a certain output could be achieved.14 If air reduction was used to limit generator output Mr Thomas’ evidence is that a significant reduction in air could result in a boiler explosion. He did not agree, however, that air reduction was an unsafe way to limit output.15

[37] If the output is adjusted by the operators to the levels notified in the employee claim action Mr Thomas’ evidence is that it would take 13-15 minutes for the output level to safely adjust to and from the normal operating level (525MW) to the level in the notification of 400MW. 16

[38] Mr Thomas provides evidence that he understands that the nature of the action is to limit the output (of the generators) to 400MW although when asked a second time as to what he understands the nature of the industrial action to be he indicates some uncertainty. 17

[39] With respect to the action taken during the period 23 January - 5 February Mr Thomas provides evidence that the output of the generators was altered by the operators selecting a specific target. 18 His evidence is that each day management asks each operator on duty to run the generator at full capacity and that management continues ‘to this day to find out every day who is implementing the bans’19 and that management would continue to do so ‘while the bans are in place.’20

[40] In these circumstances and, in particular, in the context of this enterprise, I find that the notice provided by the bargaining representatives meets the requirements of s.414(6) of the Act to specify the nature of the action.

Purpose of the notice

[41] In Telstra the Full Bench expressed concern that thousands of employees in hundreds of worksites were potentially involved in the action subject to the notice. The notice of the action given in that context was not sufficient to enable Telstra to put the notice to its purpose.

[42] The findings in Telstra are relevant to the extent they are instructive of the need to consider context and purpose in deciding if a notice given meets the requirements of s.414(6) of the Act. The finding in Telstra that the notice was deficient, however, goes to the specific facts of that case.

[43] The purpose of the notice given under s.414(6) is well known.

[44] In Davids Distribution Wilcox and Cooper JJ found:

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 shut down. If warned in advance of a ban that might affect the continued operation of that plant, the employer might choose a controlled shut down during the period of the notice. More commonly, perhaps, an employer might use the notice time to communicate with suppliers and customers, and thereby reduce the consequences for them of the notified industrial action. Very often, the recipient of the notice will respond in a way that has a legal dimension. For example, a union might react to a notice by an employer of intent to 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. 21

[45] In Telstra the Full Bench found that:

[T]here is little doubt that the purpose of the notice requirement is to give the employer the opportunity to respond to the action by making relevant preparations. The response may involve making arrangements to deal with unavailability of labour, including making appropriate arrangements in relation to customers, suppliers and other contractors. Whether the notice is adequate may depend on the nature of the employer’s operations including their size, the number of employees, the number of locations, the time at which the action is to occur and the employees potentially taking the industrial action. 22

[emphasis added]

[46] Mr Thomas provides evidence that IPM is required to comply with requirements of the Australian Energy Market Operator (AEMO). He says, when asked if AEMO had been advised in advance of the limitations that would be imposed during the industrial action taken from 23 January 2013 - 5 February 2013, that AEMO ‘were advised that there would be limitations over those periods’ 23 (sic). The language suggests that AEMO was notified in advance of the restriction. He provides evidence that AEMO adjusted the pulses sent to the generators (telling IPM at what level the generators should operate24) to conform to that information ‘after the bans had been placed.’25

[47] There is no evidence of any impediment to IPM advising AEMO in advance of the restriction on generator output arising from the notice under consideration. That AEMO may not be happy about the restrictions or consider the reason for the restrictions unsatisfactory is not, in my opinion, a relevant consideration in this application. The relevant consideration is if the notice allows IPM to take appropriate defensive action. The evidence suggests that it does.

[48] That the industrial action causes inconvenience to IPM and, perhaps, to AEMO (although there is no evidence of this) is not grounds to find that the notice given under s.414(6) of the Act does not meet its purpose. There is no suggestion, let alone evidence, that IPM does not have adequate notice to take defensive action.

[49] As I observed in Berkley Challenge Pty Ltd T/A Spotless v United Voice 26(Spotless):

The Act gives employees the right, under certain circumstances to take industrial action with protection. Davids Distribution places some requirements on the content of the notice for a particular reason and that is to enable the employer to put in place proper defensive action. This must be balanced, however, against the rights given to employees. Of course the industrial action will cause inconvenience. This is the reality of bargaining under the current legislative framework. It would be wrong, however, to suggest that the purpose of the notice of industrial action is to enable the employer to offset all of the inconvenience of such action. 27

[50] In CFMEU v Yallourn, in circumstances where the mechanisms for achieving a reduction in generator output were much more extensive, Merkel J found that

Mr Smith of Yallourn Energy had no difficulty in stating the action that is necessary to achieve the stated outcomes. Thus, upon receipt of the notice, Yallourn Energy would be well placed to take such defensive action as it may be advised to take. While the precise action to be taken is not stated, and therefore the defensive action may not be able to be precisely formulated, that limitation is inherent in the requirement that it is only necessary to notify the employer of the nature of the intended action, rather than the actual intended action. Yallourn Energy would also be well placed to determine whether the action actually taken in reliance upon the notice is or is not protected action when it is taken.

It is significant that the notice states specific output and capacity figures which would be understood by the employer to be achievable only by the taking of well known and well understood action by employees who are members of the Union. A quite different situation would apply if the notice stated that limitations or restrictions were to be imposed on output or capacity up to a stated figure, rather than to a stated figure. A notice in that form would be likely to be so general that it would fail to convey to the reader the nature of the intended action. Such a notice would convey to the reader the action that might be taken, rather than the action intended to be taken. In that event, the notice would not comply with s 170MO(5). 28

[51] Mr Thomas, in his evidence, has no difficulty in identifying the actions that could be taken by operators to reduce the generator output to 400MW as notified. He knows what action they had taken to reduce the generator output recently. Whilst Merkel J in CFMEU v Yallourn expressed some concern with a notice that specified the outcome rather than the action designed to achieve it, this was expressed in the context of it not being known until after the action started if it was protected. For all of the reasons I have given (including those set out below) I do not consider that to be an issue in the proceedings and no submissions were made to this effect. In any event this application is that the notice does not meet the requirements of s.414(6) of the Act.

[52] Nothing is put to me that suggested any further specificity in the notice would overcome any problems the Applicant may have in taking appropriate defensive action. Of course management would like to know precisely what each employee will be doing step by step in implementing the ban. But this is not a requirement of the notice, either on its face or based on extensive authorities cited by the parties to the application. In Spotless I cited the decision in Alcoa Australia Ltd v The Australian Workers’ Union 29 where Baker J found

I consider, therefore, there is force in a submission made on behalf of the union in this case that s.414(6) should be construed with an understanding that under the FW Act the respondent has the right to engage in protected industrial action. Generally, the reason for industrial action is to cause a degree of inconvenience and expense to the employer as a legitimate bargaining tool. The fact that the applicant may suffer a loss of profits and its operation and staff may be inconvenienced is no reason of itself to find that a notice should be as specific as the applicant in this case would like it to be.

In these circumstances, while I accept there is a serious question to be tried, having regard to the authorities, such as they are, I do not consider that, in the particular circumstances of this case, the general question concerning specificity raised by the applicant is at the high end of a scale of seriousness.

[53] The circumstances of this enterprise are that there are, at most, three ways of effecting output of the generators. The most recent industrial action taken by operators indicates that they have adjusted the output by selecting an output target. It is not clear on the evidence that adjusting airflow or fuel would allow the operators to control the output at the level specified in the notices.

[54] The class of employees engaged in the industrial action that would limit the output of the generators are known, on the evidence of Mr Thomas, to IPM. No suggestion was made that any other employees would take action that would (or could) effect generator output.

[55] I am satisfied that the notice given in this case meets its purpose. In the context of the enterprise I am satisfied that it specifies the nature of the action to be taken. The practicalities of this plant are that the employer knows what action will be taken with a reasonable level of certainty. It can take appropriate defensive action. The notice meets the requirements of the Act.

The notice mistakes the nature of the action

[56] IPM submits that the action to be taken by employees is not a ‘ban’. It submits that a ban is a ‘distinct species of industrial action’ 30 and what constitutes a ban can be found in the definition of industrial action at s.19, and in particular, s.19(1)(b) of the Act. IPM says that a ban, in its ordinary industrial meaning is to prohibit or interdict. Therefore, IPM says, a ban must involve some ‘limitation or restriction on the performance of work that would otherwise be performed.’31 The notices, it is submitted, do not specify what ordinary work the employees would limit and hence the action cannot be described as a ban.

[57] IPM submits that it is not readily apparent how the employees can limit generation to 400MW by not doing something which forms part of the their normal duties.

[58] The Respondents argue that the definition given to the word ‘ban’ by the Applicant is at odds with the word’s general industrial usage. In any event they submit that the fact that the word ‘ban’ is not mentioned in s.19(1)(a) of the Act ‘does not mean that a ban cannot effect the performance of work in ways set out in s.19(1)(a).’ 32 Further, they submit that a ban limiting output of a generator is a ban. The limitation of output to 400MW means that any output beyond 400MW is banned.

[59] Putting aside that the word interdict is seldom used in an industrial context, the determination of whether the action taken is a ban will be determined by a consideration of the industrial action proposed to be taken.

[60] There is no doubt that the action of employees in limiting generator output will result in them doing work in a manner different to how it would ordinarily be done. This must be encompassed within a limitation.

[61] Mr Thomas’ evidence is that:

Every day that the bans are being introduced one of the management team is present requesting ... that we do run the units at full capacity. 33

[62] If it is that employees are being asked to run the units (generators) at full capacity and they are not, then it appears to me that employees are not taking direction from their managers. Such action by the employees can be characterised as a ban. They are not doing what they would ordinarily do.

[63] Further, that the employees concerned will not allow the generators to provide an output beyond 400MW suggests that there is a ban on output of more than 400MW. Whether the ban is achieved by not doing something ordinarily done or by doing something differently to how it might ordinarily be done is not, in my opinion, the relevant consideration.

[64] At its simplest the employees will not run the generators at 525MW as they would ordinarily do (if this is the requirement of management).

[65] If it is necessary to identify some specific prohibition in the action (and I do not accept that it is) then there appears to be at least two prohibitions associated with the action being taken - one is on compliance with management’s request to run the generators at maximum capacity and the other is on allowing a generator output beyond 400MW.

[66] The ordinary industrial usage of the term ban does, in my opinion, cover the actions being taken by employees in this instance.

[67] On this basis I am satisfied and find that the action taken by the employees in limiting the output of the generators to 400MW is a ban.

[68] In addition I note that the operators have been issued with notices under s.471(1)(c) of the Act notifying each of them that their pay will be reduced for the period of the action subject to this application. 34 The notice states that the industrial action being engaged in by the employee is a ‘partial work ban.’

[69] The notice says that:

We estimate that the usual time spent performing work that is subject to the Partial Work Bans to be 12 hours per day. Your work requires that you at all times regulate and maintain the output of individual generators required by the Company.

[70] This notice, given by IPM, by its own words specifies the work that is normally done by the employees that will not be done - that is ‘regulate and maintain the output of the individual generators as required by the Company.’

[71] The notice supports my conclusion that action being taken by the operators is a ban and my conclusion that management is aware of the action being taken by the employees concerned.

[72] Further, if the action of the employees is not a ban, as submitted by IPM, then it cannot be a partial work ban and the notice given to each operator under s.471 of the Act must, by logical extension, be invalid. The action is not a refusal to attend or perform any work at all and is not an overtime ban. The only other basis to reduce pay during a period of protected industrial action is if the action is a partial work ban.

When the action will occur

[73] IPM submits that it is not clear when the action will actually commence.

[74] In evidence Mr Thomas says that:

Well, it talks about the individual generators being at 400 megawatts between 7 am and 7 pm. When we received this notification, management sat and we had trouble understanding were the generators going to be ramped down from 525 megawatts to 400 megawatts prior to 7 am to be there at 7 o’clock, or was the action going to start at 7 o’clock in the morning and finish 7 o’clock at night. So we really didn’t understand when the action was going to occur. 35

[75] Under cross examination Mr Thomas agreed that the notice given of industrial action did not mention any industrial action occurring before 7.00am. 36

[76] An earlier notice of industrial action was given by each of the bargaining representatives. That notice advised of industrial action commencing on 23 January 2013 with a ban on generator output commencing from 7.00am (but continuing for a more limited period). Despite the fact that this earlier notice did not result in any industrial action being taken prior to 7.00am, Mr Thomas says that management had no expectations of what would occur in this instance. 37 To adopt a view that past events creates no expectations nor provides any guide of future behaviour under similar conditions is an unrealistic approach to modern day management and is disingenuous.

[77] None of the notices given by the bargaining representatives indicates that any industrial action will be taken prior to 7.00am. If industrial action is taken prior to 7.00am it may be that it is unprotected industrial action.

[78] I am satisfied that the notice adequately specifies the time the industrial action will commence. There was nothing before me to suggest that a greater level of particularity is required. In any event I note that the requirement of s.414(6) is to advise the day when the action will commence. The notice does this but it also provides advice as to the time this particular action will start.

The identity of those who will participate in the industrial action

[79] I am satisfied that IPM is aware of the class of employees (ie operators) who may take this industrial action.

Conclusion

[80] I find that the notice of employee claim action given by CFMEU, the ASU and Mr Clark on 31 January 2013 meets the requirements of s.414(6) of the Act in that it specifies the nature of the action to be taken and the day the action will commence. In fact, in this instance a greater level of particularity has been given than required by the Act as management know that the action at point 4 of the notice will commence at 7.00am.

[81] The notice must be viewed from the perspective of the organisation it is directed to. In this case the notice is to IPM. Management of IPM must view the notice through their own eyes with their own knowledge of the operations of the business. Management cannot be blind to what has occurred in the past as a guide to what may occur in the future although this is not to suggest they should be blind to alternatives.

[82] I am satisfied that the notices provide enough particularity to enable IPM to make appropriate preparations for the period of the ban.

[83] Whilst a greater level of clarity could be achieved had the notices been in a different or more detailed form, that does not mean that the notices do not specify the nature of the industrial action. The nature of the action is a ban such that the output of the generators will be restricted to a specified level during the nominated hours.

[84] I am satisfied that the action being taken by employees with respect to the reduction in generator output is a ban as that terms has its ordinary industrial usage.

[85] For these reasons the application of IPM is dismissed.

COMMISSIONER

Appearances:

F. Parry of Counsel, with R Dalton for the Applicant.

S. Crawshaw of Counsel for the CFMEU and K. Clark.

M. Harding of Counsel for the ASU.

Hearing details:

2013.

Melbourne.

22 February.

 1   [2013] FWC 1239.

 2   [2013] FWC 1202.

 3 (1999) 91 IR 198.

 4   [2009] FWAFB 1698.

 5 [2000] FCA 1070.

 6   Fair Work Bill 2008 Explanatory Memorandum paragraph 1672.

 7   [2009] FWAFB 1698, [12].

 8   [2009] FWAFB 1698, [18].

 9 200 IR 467.

 10 200 IR 467, [56]-[58].

 11   Transcript PN39.

 12   Transcript PN124-5.

 13   Transcript PN127.

 14   Transcript PN131.

 15   Transcript PN139, 142.

 16   Transcript, PN45.

 17   See Transcript. PN 55, PN 60.

 18   Transcript, PN93.

 19   Transcript, PN 107.

 20   Transcript, PN112.

 21 (1999) 91 IR 198, [87].

 22   [2009] FWAFB 1698, [12].

 23   Transcript, PN 95.

 24   Transcript, PN 81.

 25   Transcript, PN96.

 26   [2011] FWA 6421.

 27   [2011] FWA 6421, [46].

 28 [2000] FCA 1070, [31]-[32].

 29 (2010) 196 IR 103.

 30   Exhibit IPM2, paragraph 17.

 31   Exhibit IPM2, paragraph 18.

 32   Exhibit CFMEU3, paragraph 23.

 33   Transcript PN105.

 34   Exhibit CFMEU2.

 35   Transcript PN44.

 36   Transcript PN159.

 37   Transcript PN148.

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