Linfox Australia Pty Ltd v National Union of Workers

[2014] FWC 460

[2014] FWC 460

The attached document replaces the document previously issued with the above code on 17 January 2014.

The Decision is being refiled to correct a typographical error in an endnote.

Melissa Nassios

Associate to Commissioner Roe

Dated 22 January 2014

[2014] FWC 460

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.

Linfox Australia Pty Ltd
v
National Union of Workers
(C2014/2660)

COMMISSIONER ROE MELBOURNE, 17 JANUARY 2014

s.418 application for an order that industrial action by employees stop, not occur or not be organised.

Background

[1] This is an application by Linfox Australia Pty Ltd (Linfox or the Applicant) for orders under Section 418 of the Fair Work Act 2009 (the FW Act) that the National Union of Workers (NUW) and its officers, employees and agents and the members of the NUW who are employed at the Truganina site in Victoria who are bound by the Linfox Road Transport and Distribution Centres National Enterprise Agreement 2011 (the Agreement) not organise and/or engage in industrial action.

[2] I issued a protected action ballot order in respect to bargaining by the NUW and Linfox for a replacement to the Agreement as it affected the members of the NUW at the Truganina site on 10 December 2013. The AEC advised on 9 January 2014 that the ballot approved industrial action including “an unlimited number of stoppages of work of 24 hour duration”. On 13 January 2014 Mr Tim Kennedy, Victorian Branch Secretary of the NUW, issued a notice to Linfox of intention to take industrial action by members of the NUW at the Truganina site. In the notice the action was described as follows “nature of the industrial action - a stoppage of work of 24 hour duration; location of the intended industrial action - Coles RDC 485 Dohertys Road Truganina, Victoria 3209; Date on which industrial action will begin: Friday 17 January 2014”. The order sought by Linfox is aimed at stopping this action from occurring.

[3] It is not in dispute that Linfox is able to make the Application because it is likely to be directly affected by the industrial action (Section 418(2) of the FW Act). It is also not in dispute that the industrial action is being organised by the NUW and that it is threatened, pending or probable. The requirements of Section 418 are met save for the question of whether or not the industrial action is or will be protected industrial action.

[4] Linfox argues that the action is not protected industrial action because the requirements in Section 414(6) have not been met.

[5] Section 414 provides as follows:

“414 Notice requirements for industrial action

Notice requirements—employee claim action

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

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

(a) 3 working days; or

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

Notice 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.

[6] Ms Neill for Linfox gave evidence that the shifts worked by members of the NUW at the Truganina site are as follows:

● Day shift: 6am to 2.30pm
● Afternoon shift: 3pm to 11pm
● Night shift: 10.30pm to 6.30am

[7] The notice advises that from the starting time of the stoppage at some time on 17 January 2014 employees will stop work for 24 hours. Linfox argues that because the starting time is not specified the stoppage could involve the night shift which begins on Thursday 16 January 2014 from any time after 12.01am on Friday 17 January 2014. It could also affect the day shift and/or the afternoon and/or the night shift which begin on Friday 17 January 2014. If the stoppage begins later on Friday 17 January it could affect any or all of the three shifts on Saturday 18 January 2014. Linfox does not know with any certainty which of these shifts will be affected. If the starting time selected is a shift change over or shift overlap time then up to five of the possible shifts may be affected to some extent. However, in this circumstance the impact on two of those shifts would be relatively minor.

[8] Evidence was given by Ms Neill for Linfox that some of the employees at the Truganina warehouse are members of the TWU and will therefore not be participating in the stoppage. It is the intention of Linfox to continue to offer work at the site to those employees during the NUW stoppage. Ms Neill also gave evidence that up to 100 casual workers are engaged at the site who are employed by an agency. It is the intention of Linfox to continue to offer work at the site to agency casuals and Linfox may decide to offer work to an additional number of agency casuals in response to the strike. Ms Neill gave evidence that a period of notice was required to obtain additional casuals but she was unsure of exactly how much notice was required.

[9] Linfox accepts that given that notice has been given of the industrial action it can with necessary expense and inconvenience seek to put in place measures to ameliorate the disruption to the business and to its customers by seeking to engage additional causal or agency staff. Linfox argues that in the absence of knowledge about what is the starting time for the action they may “over compensate” by engaging casual or agency staff for shifts where no industrial action actually takes place. Alternatively they may decide that it is impractical to ameliorate the potential disruption by engaging additional casual or agency staff. Linfox argues that they are unable to effectively prepare for the consequences of the industrial action unless they know the starting time for the action.

[10] It is not in contention that a purpose of Section 414(6) of the Act is to enable the employer to be able to take appropriate defensive action and that the description of the nature of the action should be sufficient to enable the employer to make reasonable preparations to deal with the effect of the industrial action. The degree of specificity required to achieve this purpose will depend upon the circumstances, including the nature of the undertaking and the way in which that undertaking operates. The notice does not have to provide sufficient detail to enable the employer to negate the harmful effect of the industrial action.

[11] I heard the matter on 15 January 2014 and after considering the evidence and submissions I issued a decision on transcript. The following is an edited version of that transcript. It should be noted that on transcript I referred to six possible shifts which may be affected by the proposed action and specified the first and the last of those shifts. The span that I specified in fact covers seven shifts and I have corrected my conclusions accordingly.

Consideration and conclusion.

[12] I thank the representatives for the clarity of their submissions in this matter. It has enabled me to be able to make a decision. It is necessary to deal with Section 418 matters expeditiously and therefore without necessarily having the time that might be available in other matters to consider finer details; but in my assessment, having read the material and the evidence that has been provided, the facts in this matter are largely agreed.

[13] I am satisfied that the issue in contention is about whether the notice requirements in Section 414(6) have been adequately specified. That is the basis on which the employer argues that the Section 418 order should be issued. It is quite clear that the notice specifies the day on which the industrial action will occur. Therefore, the question to be determined is does the notice specify the nature of the action?

[14] I agree with the summary of the law and the reasoning set out by Barker J in Alcoa v AWU 1. His Honour goes through, at paragraphs 25 to 45, a useful summary of the approach to be taken to this question. The other clear authority in this matter is the full bench decision in Telstra v CEPU2. I, of course, have also had regard to the other cases to which the parties have referred me.

[15] I am satisfied that the notice in this case does specify the nature of the industrial action. The circumstances in which the court or the commission have intervened in these matters have been ones where the employer has not had reasonable opportunity to prepare or respond. In the Telstra case, the employer was facing indeterminate action, multiple actions and multiple undefined sites. In some of the other cases there were special circumstances, such as the impact on safety and the costs and time associated with start-ups, shutdown and maintenance of major plant and equipment. In other cases, the duration of the period over which the action may or may not occur was lengthy. None of these circumstances apply in this case.

[16] The notice of industrial action does not have to prevent over-compensation as an absolute principle. There are cases where action which has been notified is cancelled and the employer may, therefore, have compensated, as it turns out unnecessarily. There have been decisions of the tribunal where the fact that industrial action was notified and then at a later stage cancelled, wasn't a basis for issuing a Section 418 order. There are cases when it has been, but it depends on the circumstances.

[17] There are cases where a ban may be implemented in more than one way. For example, in the IBM Loy Yang case. 3 If a ban can be implemented in more than one way, then it is likely that the employer has to, in preparing their response, consider a number of potential ways in which action might happen. There may be more than one possible stoppage where the employer is not clear on exactly how many and when particular stoppages may occur. These situations and many others may lead to the employer “over compensating” in an attempt to ameliorate the affect of possible industrial action.

[18] The employer does not have to be able to negate the effect of the industrial action.

[19] In this case, there are, no special safety, plant, machinery or start-up issues. In this case, the range of shifts which may be affected may vary depending on the start time of the action. Up to seven shifts in the roster which could be affected, ranging from the night shift which commences on 16 January, through to the night shift which commences on 18 January. There could be up to five of those shifts affected in part by the actual action, but it is possible that only three of those seven shifts may be affected.

[20] This range of possibilities I do not consider to be unusual. In this case, the employer knows the site, knows the workers involved, knows the duration and knows the nature of the action. A level of uncertainty is not sufficient to be able to say that the nature of the action has not been specified. The level of uncertainty is not such that the employer cannot make reasonable arrangements to respond, including through the use of labour hire (about which we have heard some evidence) or other actions that the employer may wish to take.

[21] That is not to say that the industrial action and the level of uncertainty will not cause some inconvenience to the employer. That goes without saying, but I am not satisfied that the level of uncertainty is such that I could conclude that the nature of the industrial action has not been specified or that the employer cannot make reasonable arrangements to respond and to prepare. For those reasons, I am satisfied that the application for the Section 418 order should be dismissed.

COMMISSIONER

Appearances:

Mr J Snaden with Ms A Prpich appeared for Linfox.

Mr D Mujkic appeared for the NUW.

Hearing details:

2014

Melbourne

January 15

 1 (2010) FCA 278.

 2   [2009] FWAFB 1698.

 3   [2013] FWC 1467.

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<Price code C, PR546942>