Liquor, Hospitality and Miscellaneous UnionvBansley Pty Ltd T/A Carinya of Bicton
[2011] FWA 797
•10 FEBRUARY 2011
[2011] FWA 797 |
|
REASONS FOR DECISION AND DECISION |
Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.
Liquor, Hospitality and Miscellaneous Union
v
Bansley Pty Ltd T/A Carinya of Bicton
(C2011/3172)
and
B2011/2541)
COMMISSIONER CLOGHAN | PERTH, 10 FEBRUARY 2011 |
Application for an order that industrial action by employees or employers stop.
[1] On 31 January 2011, the Liquor, Hospitality and Miscellaneous Union (LHMU) (“the Applicant”) made application for an order to stop unprotected industrial action (C2011/3172) pursuant to s.418 of the Fair Work Act 2009 (“the Act”).
[2] The order is sought against Bansley Pty Ltd T/A Carinya of Bicton (“the Employer”).
[3] Put shortly, the alleged unprotected industrial action relates to a lock out (“lock out”) by the Employer of all LHMU members commencing on Sunday 30 January 2011 and designated to cease at 7:00am on Monday 7 February 2011.
[4] The grounds upon which the LHMU seek an order to stop unprotected industrial action (C2011/3172) is that the Employer is not genuinely trying to reach an agreement pursuant to s.413(3) of the Act.
[5] Also on 31 January 2011, the LHMU made application for an order to terminate protected industrial action (B2011/2541) pursuant to s.423(3)(b) of the Act. The order is also sought against the same Employer.
[6] Application B2011/2541 can be described as a “protective” application intended as a vehicle to terminate industrial action on the part of the employer if it was found to be protected as it would cause or is threatening to cause, significant economic harm to any of the employees who will be covered by the agreement in accordance with s.423(3)(b) of the Act.
[7] A conference of the parties occurred on 2 February 2011.
[8] Both applications were the subject of a hearing on 3 February 2011. At the conclusion of the hearing in C2011/3172, I made a determination that the Employer was engaging in unprotected industrial action, and issued an Order stopping that unprotected industrial action. These are the reasons for that decision and issuing of the Order.
[9] For reasons that will become apparent, the LHMU did not pursue application B2011/2541; this is my decision and reasons in relation to that application.
BACKGROUND
[10] On 17 December 2010, in application B2010/3727, Commissioner Williams issued an Order enabling a Protected Action Ballot of those employees represented by the LHMU in negotiations for a proposed enterprise agreement with the Employer.
[11] The ballot approved the taking of protected industrial action.
[12] Pursuant to s.414 of the Act, the LHMU gave written notice of its intention to take protected industrial action on 11, 17 and 24 January 2011. On 28 January 2011, the LHMU provided clarification to the Employer regarding its notice dated 24 January 2011.
[13] The clarification provided by the LHMU gave notice that members of the LHMU, who were working night shift commencing on 28 January 2011, would stop work for “up to four (4) hours” at 12:01am on 29 January 2011.
[14] The LHMU in the same communication in paragraph [14] clarified that those members who were rostered on day and afternoon shift on 29 January 2011, would work “as normal”.
[15] The Employer, by “Urgent Memo”, advised LHMU members who were rostered to work on night shift commencing on 28 January 2011, that they were locked out. I should emphasise that this lock out, or employer response action, is not the subject of these applications.
[16] The Employer, again by “Urgent Memo” on 30 January 2011 at a time which is uncertain, gave “Notice of Intention to Lock Out all LHMU members until 7 February 2011”. The Urgent Memo states that the lock out was as a result of industrial action on Sunday 30 January 2011 which was not protected industrial action. It is this lock out by the Employer, that is the subject of these applications.
[17] RELEVANT STATUTORY FRAMEWORK
• Section 408 - Protected industrial action
Industrial action is protected industrial action for a proposed enterprise agreement if it is one of the following:
(a) employee claim action for the agreement (see section 409);
(b) employee response action for the agreement (see section 410);
(c) employer response action for the agreement (see section 411).
• Section 409 - Employee claim action
(1) Employee claim action for a proposed enterprise agreement is industrial action that:
(a) is organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement that are only about, or are reasonably believed to only be about, permitted matters; and
(b) is organised or engaged in, against an employer that will be covered by the agreement, by:
(i) a bargaining representative of an employee who will be covered by the agreement; or
(ii) an employee who is included in a group or groups of employees specified in a protected action ballot order for the industrial action; and
(c) meets the common requirements set out in Subdivision B; and
(d) meets the additional requirements set out in this section.
• Section 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.
• Subdivision B—Common requirements for industrial action to be protected industrial action
• Section 413 - Common requirements that apply for industrial action to be protected industrial action
Common requirements
(1) This section sets out the common requirements for industrial action to be protected industrial action for a proposed enterprise agreement.
Type of proposed enterprise agreement
(2) The industrial action must not relate to a proposed enterprise agreement that is a greenfields agreement or multi-enterprise agreement.
Genuinely trying to reach an agreement
(3) The following persons must be genuinely trying to reach an agreement:
(a) if the person organising or engaging in the industrial action is a bargaining representative for the agreement—the bargaining representative;
(b) if the person organising or engaging in the industrial action is an employee who will be covered by the agreement—the bargaining representative of the employee.
Notice requirements
(4) The notice requirements set out in section 414 must have been met in relation to the industrial action.
• Section 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.
RELEVANT MATTERS FOR CONSIDERATION
Notice requirements for industrial action
[18] For the various forms of industrial action to be protected industrial action, it is necessary that it meets the requisite notice requirements.
[19] For employee claim action, employee response action and employer response action to be protected industrial action, it is a condition, among other requirements, that they “meet(s) the common requirements set out in Subdivision B” [(s.409(c)), (s.410(c)) and (s.411(c)) of the Act].
[20] Subdivision B provides at s.413(4): “the notice requirements set out in section 414 must have been met in relation to the industrial action” (my emphasis).
[21] The word “must” communicates, particularises and commands an action to be carried out - in this case, notification requirements in relation to industrial action. Simply put, meeting the specified notice requirements is a condition of making industrial action protected and attracting the immunity and payment provisions of Subdivision C of Division 2 of Part 3-3 of the Act.
[22] The Employer conceded that the industrial action carried out by LHMU members by way of the notice requirements on 11 and 17 January 2011, was protected industrial action. The industrial action proposed by the LHMU by way of notification on 24 January 2011 (and clarified on 28 January 2011) did not take place as it was overtaken by the Employer’s lock out and not at issue.
[23] I now turn to notice requirements that would need to be satisfied for the Employer’s lock out to be protected industrial action.
[24] A review of the notice requirements for employer response action sets out the following conditions in s.414(5) of the Act:
(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.
[25] Prior to the hearing, I inquired how each party to the applications had met the notice requirements of s.414 of the Act. I received documentation from both parties and have already referred to documentation from the LHMU.
[26] With respect to the Employer’s documentation, I received copies of the urgent memos and was advised by the Employer that the lock out notice “was sent firstly by SMS message to each of the LHMU members that we knew of. It was also posted prominently throughout both enterprises and the employees were provided with multiple copies by post, as well; the LHMU members.” 1
[27] The Employer’s notice requirements for the lock out, subject to evidence, may have met the provisions of s.414(5)(b) with regard to notifying employees. However, the context of s.414(5) requires two conditions to be met before the Employer engages in employer response action. The first condition, at s.414(5)(a), requires that the Employer must “give written notice of the action to each bargaining representative of an employee who will be covered by the agreement”.
[28] Prior to the hearing, I was provided with the names of the bargaining representatives. The LHMU was aware of itself, the Health Services Union (HSU) which had authorised the LHMU to bargain on its behalf, the Australian Nursing Federation (ANF) and a number of employees who had appointed themselves as bargaining representatives. The Employer’s advice concurred with this assessment and provided documentation which indicated that 19 employees had nominated themselves, 10 employees had nominated Ms Boden, one self nomination was made which may be Ms Boden herself, and an employee who has nominated both himself and the ANF.
[29] When asked by the Tribunal if the Employer could demonstrate that it had given written notice of the proposed lock out to each bargaining representative, it could not. After taking instructions, the Employer’s representative asserted that the ANF was not notified but all others were 2.
[30] I expressed concern that the Employer may not have complied with notification requirements and following a short adjournment, the Employer’s representative confirmed and conceded that the ANF was not notified of the lock out, “and you are required to terminate the industrial action” 3.
DISCUSSION AND CONCLUSION
[31] Industrial action is only protected industrial action if, among other requirements, the requisite notice is given.
[32] While notice is common to protected industrial action, the particular requirements for employee claim action, employee response action and employer response action differ.
[33] As a question of fact, the Employer conceded that the ANF, as a bargaining representative of employees to be covered by the agreement, had not been given the requisite notice of the lock out and consequently the conditions of s.414(5)(a) of the Act had not been met. In light of this concession, it was not necessary to inquire into, and make a finding as to whether the Employer’s contention that all other bargaining representatives had been given the requisite notice.
[34] While the focus of my consideration has been the Employer’s lock out, it should be noted that the notice requirements for all three forms of industrial action are mandatory and provide the Tribunal with no discretion.
[35] For the above reasons, I found the lock out by the Employer in existence on 3 February 2011 was unprotected industrial action and should cease at 5:00pm on the same day; an Order to this effect was issued.
Application B2011/2541
[36] As I stated in paragraph [6], application B2011/2541 can be described as a “protective” application, in the sense that if I had determined that the lock out was protected industrial action, the LHMU would seek to terminate that protected industrial action.
[37] As I have determined that the lock out is not protected industrial action, the grounds upon which the application was made “fall away”. Application B2011/2541 is therefore dismissed, at my initiative, in accordance with s.587(3)(a) of the Act. An Order will be issued to reflect this decision.
Further action
[38] Prior to the conclusion of the hearing, two issues were raised. Firstly, the Employer made an oral application to Fair Work Australia to terminate the protected industrial action being engaged in by employees who are represented by the LHMU. In doing so, the Employer’s representative sought for the Tribunal to waive the procedural requirements pursuant to s.586(b) of the Act.
[39] The Employer informed the Tribunal that the protected industrial action should be terminated on two grounds. The first ground related to the assertion that the industrial action engaged in by employees represented by the LHMU, is not consistent with the form of industrial action approved in the ballot.
[40] The second ground for terminating the industrial action is that the industrial action:
“...has threatened, is threatening, or would threaten to endanger the life, the personal safety or health, or the welfare of the population or part of it” 4.
[41] Shortly after making the oral application and seeking waiver of procedural requirements relating to the application, the parties adjourned into conference.
[42] The Tribunal did not accept the oral application or waive the procedural requirements relating to the oral application.
[43] In conference, the parties agreed that the most practicable time for the lock out to cease was 5:00pm on that day.
[44] Further, and importantly, the parties agreed that the hearing provided a “circuit breaker” and also agreed to recommence negotiations. The negotiations would continue without either party engaging in further industrial action until a “report back” conference scheduled for 10:00am on 9 February 2011.
[45] In addition, the Employer gave a commitment, until 10:00am on 9 February 2011, to stand aside any further action in relation to six (6) employees who are alleged to have engaged in industrial action on 30 January 2011.
CONCLUSION TO APPLICATIONS
Application C2011/3172
[46] Pursuant to s.418 of the Act, I am satisfied that the Employer, by way of a lock out commencing on 30 January 2011 and designated to conclude on 7 February 2011, was engaging in unprotected industrial action and I issued an Order that it cease on 3 February 2011.
Application B2011/2541
[47] Pursuant to s.587(3)(a) of the Act, application B2011/2541 is dismissed.
COMMISSIONER
Appearances:
Mr A Clark with Ms J Hughes, of the Liquor, Hospital and Miscellaneous Union.
Mr G McCorry with Ms J Straughan, on behalf of Bansley Pty Ltd T/A Carinya of Bicton.
Hearing details:
2011:
Perth
3 February
1 PN 34
2 PN 36
3 PN 47
4 Section 424(1)(c) of the Fair Work Act 2009
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