Minda Incorporated v Liquor, Hospitality and Miscellaneous Union
[2010] FWA 3753
•14 MAY 2010
[2010] FWA 3753 |
|
DECISION |
Fair Work Act 2009
s.424 - Application to suspend or terminate protected industrial action - endangering life etc.
Minda Incorporated
v
Liquor, Hospitality and Miscellaneous Union
(B2010/255)
COMMISSIONER HAMPTON | ADELAIDE, 14 MAY 2010 |
Section 424 application for an order to terminate protected industrial action – Preliminary point – Notice of industrial action withdrawn after application filed – whether action threatened, pending or probable.
Introduction and background
[1] This is an application by Minda Incorporated (Minda or the employer) seeking that Fair Work Australia make orders in relation to certain industrial action that has been subject to a notification to be undertaken by members of the Liquor, Hospitality and Miscellaneous Union (the LHMU or the Union).
[2] The application is made pursuant to s.424(1) of Fair Work Act 2009 (the Act) on the basis that the action as notified by the Union is threatened, pending or probable and will threaten to endanger the life, personal safety or health, or welfare of part of the population. As a result, Minda contend that the industrial action should be terminated.
[3] Much of the background to this matter is set out in two decisions dealing firstly with a related s.424 application taken by Minda in April 2010 seeking that I suspend or terminate the protected industrial action as then notified by the LHMU. Secondly, the later developments are canvassed in a subsequent decision extending the period within which the Union was permitted to notify protected action in accordance with s.459 of the Act. I will not repeat the summary of facts as outlined in those decisions. 1
[4] It is however appropriate to outline for present purposes that the LHMU was granted a protected action ballot order on 26 February 2010 and the Australian Electoral Commission subsequently conducted a ballot and declared the result in favour of the capacity to take action on 24 March 2010.
[5] On 12 April 2010, the LHMU notified intended industrial action however, principally as a result of interim orders issued by me in relation to the earlier s.424 application, no industrial action took place at that time. The s.424 application as made by Minda at that time was subsequently dismissed on the basis that the protected industrial action as then threatened, impending or probable would not fulfil the criteria of s.424(1)(c) of the Act. 2
[6] The 30 day period referred to in s.459 of the Act for the industrial action to commence was extended by me on 30 April 2010. 3
[7] The Union subsequently notified Minda that protected industrial action would be taken including most of those forms of action that were considered by Fair Work Australia as part of the earlier s.424 application. Minda has not sought to re-agitate those matters.
[8] On 7 May 2010, the Union also notified a separate ban on completing service users’ progress notes pursuant to s.414 of the Act (the progress notes ban) to commence on 13 May 2010. 4 That form of industrial action has been endorsed by the protected action ballot but was not notified at the time of the earlier s.424 application and decision.
[9] This application concerns only the progress notes ban and was filed on 7 May 2010 and listed for hearing on 11 May. As at 10 May 2010, the Union was still apparently preparing to contest this application and had sought the employer’s cooperation in releasing a potential witness. 5
[10] On the morning of 11 May 2010 and prior to the hearing, the Union sent an email to Minda and Fair Work Australia withdrawing the s.414 notice in relation to the progress notes ban. 6 The Union also distributed a notice to members advising in part that the progress notes ban had been withdrawn and that members were not to conduct the ban. The basis of the decision to withdraw the ban was given to the members as being “…a direct result of Minda applying to terminate all protected action and to avoid the risk of FWA terminating all current and future protected action”.7
[11] Minda contends that the progress notes ban remains relevant for the purposes of s.424 notwithstanding the withdrawal of the notice by the Union. This issue has been heard by me as a preliminary point.
The statutory provision in issue
[12] Section 424 of the Act provides as follows:
“424 FWA must suspend or terminate protected industrial action—endangering life etc.
Suspension or termination of protected industrial action
(1) FWA must make an order suspending or terminating protected industrial action for a proposed enterprise agreement that:
(a) is being engaged in; or
(b) is threatened, impending or probable;
if FWA is satisfied that the protected industrial action has threatened, is threatening, or would threaten:
(c) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or
(d) to cause significant damage to the Australian economy or an important part of it.
(2) FWA may make the order:
(a) on its own initiative; or
(b) on application by any of the following:
(i) a bargaining representative for the agreement;
(ii) the Minister;
(iia) if the industrial action is being engaged in, or is threatened, impending or probable, in a State that is a referring State as defined in section 30B or 30L—the Minister of the State who has responsibility for workplace relations matters in the State;
(iib) if the industrial action is being engaged in, or is threatened, impending or probable, in a Territory—the Minister of the Territory who has responsibility for workplace relations matters in the Territory;
(iii) a person prescribed by the regulations.
Application must be determined within 5 days
(3) If an application for an order under this section is made, FWA must, as far as practicable, determine the application within 5 days after it is made.
Interim orders
(4) If FWA is unable to determine the application within that period, FWA must, within that period, make an interim order suspending the protected industrial action to which the application relates until the application is determined.
(5) An interim order continues in operation until the application is determined.”
The general positions of the parties
[13] There is no suggestion that the progress notes ban as originally notified would not be protected industrial action. This matter has also proceeded on the basis that the s.414 notice in relation to the progress notes ban has now been validly withdrawn by the Union.
[14] Minda, which was represented with permission by Mr Martin, contended that the action as notified by the Union remained threatened, impending or probable within the meaning of s.424(1) of the Act. This, it was argued, applied because the progress notes ban was the subject of a ballot endorsed decision and had been notified. Although the notice had been withdrawn, it remained threatened as it could be reissued at any time by the Union (subject only to the need to be within the extended s.459 notice period). Further, it was contended by Minda that ballot endorsed action that was not subject to a s.414 notice could in these circumstances still be threatened for present purposes.
[15] The withdrawal of the notice by the Union was seen by Minda as being tactical and not a concession that the progress notes ban was inappropriate in terms of s.424 of the Act. In that light, it was argued that it was also appropriate for Fair Work Australia to consider the nature of the ban at the point that the application was lodged by the employer.
[16] The approach contended by Minda was said to be necessary to avoid the prospect of parties withdrawing protected action notices solely as a means to frustrate the operation of the Act. This approach, it was argued, would also be consistent with the objects of the Act which promoted simple good faith bargaining obligations and clear rules governing industrial action (s.3(f)) and harmonious and cooperative workplace relations (s.577 of the Act).
[17] The Union, which was represented by Mr Love, contended that the progress notes ban was no longer threatened, impending or probable. The s.414 notice had been withdrawn and any implementation of that action would now not be protected under the Act. In that light, s.424 of the Act had no application.
[18] Whilst it could give further notice of the progress notes ban, the Union argued that only if it were to do so would it become relevantly threatened, impending or probable and at that point the employer could make an application to have it dealt with.
[19] In terms of the potential to manipulate the withdrawal of notices, the Union contended that there was no pattern of such behaviour in its case and if this occurred, action could be taken by the employer pursuant to the good faith bargaining provisions of the Act (ss.228 and 229 of the Act).
[20] The Union also argued that the approach to the application of s.424 of the Act should be considered in the context of the legislation’s contemplation of protected industrial action and the consequences of a finding that the action is to be suspended or terminated; being almost direct access to an arbitrated outcome (s.266).
Is the progress notes ban threatened, impending or probable with the meaning of section 424(1)(b) of the Act?
[21] In the earlier s.424 application taken by Minda I made the following observations and findings:
“[77] I must first consider the extent of industrial action that was threatened, impending or probable. I note that at the point of hearing and determination of this matter, no industrial action had taken place. It is also the case that as a result of the final order made pursuant to s.418 in this matter, some of the otherwise notified industrial action (by those employees not covered by the protected action ballot) is no longer permitted. However, I have found that this latter element is not protected, it applies to a relatively small number of employees, and in any event would not be particularly significant in any of the considerations outlined below.
[78] There is a significant number of forms of industrial action that have been authorised by the ballot, but not notified to Minda. Should the full extent of the ballot approved action be considered for this purpose?
[79] In my view, the protected action ballot approved a range of action that represents the potential scope of industrial action, but it is not yet relevantly threatened, impending or probable. Of these concepts, I have considered in particular whether it was threatened within the meaning of the Act. The scheme of the Act as I perceive it to be is that industrial action must first be subject to a protected action ballot. If approved by a majority of eligible members who cast a valid vote in the ballot, it is then capable of being subject to a notice of industrial action as contemplated by s.414 of the Act. I leave aside for present purposes action that is not protected as it does not fall within the purview of s.424.
[80] Any ballot approved action will not be protected unless and until it is notified in accordance with the Act. A union and its members may choose to never rely on some or all of the ballot approved action, or rely on only some at different times and in different combinations. Ballot approved industrial action also becomes not protected where it does not commence within a nominated period (30 days as prescribed by s.459).
[81] The actual prospect of the ballot approved industrial action is in my view sufficiently uncertain so as not to meet the requirements of s.424(1) until it has been notified pursuant to s.414 of the Act.
[82] On that basis, I have only considered the nine elements of industrial action as notified by the Union. If the remaining elements of industrial action become notified, they would then become relevant and in the event that a s.424 application was made, need to be considered at that time based upon the circumstances then evident” 8
[22] Mr Martin for Minda sought to distinguish the approach that I had taken in dealing with the one item of industrial action (the stop work meeting) that had been notified for a particular day but had not been undertaken as a result of the April s.424 proceedings and an interim order made by me in that context. He contended that unlike the stop work meeting, there was no temporal aspect to the progress notes ban. Further, he suggested that action could be threatened in the workplace in some circumstances without a notice being issued or in effect, and the prospect of a further notice in this case remained real.
[23] Mr Love for the Union, contended that the situation following the withdrawal of the progress notes ban was precisely the same as if no notice had been issued and in line with the earlier approach taken by Fair Work Australia it would not become threatened, impending or probable as protected action unless and until a notice was issued.
[24] Having considered the circumstances of this particular case and the submissions of the parties, I am not persuaded that the progress notes ban is threatened, pending or probable for the purposes of s.424 of the Act. My reasons for so concluding are set out below.
[25] The progress notes ban is no longer subject to a notice in accordance with s.414 of the Act. It may or may not be subject to a notice in the future and for reasons outlined in my earlier decision, I do not consider that the reference point for the purposes of s.424 should be the potential action that falls within the scope of a protected action ballot. I would however at least allow for the possibility that protected industrial action could in an exceptional case be relevantly threatened in advance of a formal notice. That is, where the explicit and evident advice that a notice is to be issued is provided with authority by a union or employer in advance of the formal notice. It may also be possible that relevant industrial action remains threatened or probable if the s.414 notice is not in reality withdrawn.
[26] In this case, a notice of protected action has been issued and formally withdrawn and this has been communicated to the union’s members, albeit without a guarantee that it will not be re-imposed. However, there is nothing to support the notion that it will necessarily be re-imposed and there is no course of conduct to suggest that the threat of that action being taken is now any greater than any other non-notified industrial action. I will return to this aspect shortly. Further, for reasons outlined earlier, the scheme of the Act suggests that protected action that is only potential action not be considered in the present context.
[27] As alluded to above, there is good reason not to speculate about potential industrial action. It is the case that the Union has not conceded that the progress notes ban would fall within the scope of s.424(1)(c) of the Act and no guarantees about it not being re-notified have been sought or offered. Minda in effect ask me to imply that there remains a threat beyond that which would apply to other ballot approved, but not notified, forms of industrial action. It is however equally possible that knowing the response of the employer and the evidence that was foreshadowed in this case, the LHMU would not revisit that form of industrial action. Both outcomes are of course entirely speculative and I have discussed them to illustrate why great care should be taken in finding the existence of threatened, impending or probable industrial action in this context.
[28] In terms of whether the assessment as to the status of the industrial action should be made only at the point of the application, I consider that Fair Work Australia must assess the circumstances applying at the time of hearing and decision. To do otherwise could lead to decisions being made with significant consequences that do not reflect the reality of the bargaining process and circumstances at the time.
[29] In assessing the proper application of the Act, I have carefully considered the capacity for this approach to be abused. There is no evidence of a course of conduct here and should the Union re-notify the progress notes ban, its conduct would be closely considered. If Fair Work Australia took the view that a subsequent progress notes ban (or any other ban) notice was withdrawn by the Union pre-emptively as speculated by Minda, so as to establish a likely pattern of conduct and threat, this could give rise to consideration under s.418 of the Act that relevant not protected action was threatened 9 or alternatively, that the good faith bargaining obligations of the Act had not been followed. Indeed, most of the worst examples of behaviour as cited by Mr Martin for illustrative purposes in this matter could give rise to this approach.
[30] There is also a further consideration that in my view supports the approach to the Act I have adopted. If notified protected action could not be withdrawn without it providing the foundation for a s.424 application, there would be a significant disincentive for a party to change its position in light of legitimate objections made by the other party. That is, if the withdrawn notice remained as a threat within the meaning of s.424 for present purposes, a union or employer, as the case may be, would be discouraged from having regard to the legitimate concerns of the other party about the consequences of the notified industrial action. This would also be an unfortunate outcome in terms of the objects and scheme of the Act.
[31] On the basis of my findings, the progress notes ban is not threatened, pending or probable within the meaning of s.424(1) of the Act and this application must be dismissed. An order to that effect has been issued in conjunction with this decision.
COMMISSIONER
Appearances:
T. Martin of counsel (with permission) for Minda Incorporated.
J. Love for the Liquor, Hospitality and Miscellaneous Union.
Hearing details:
2010
Adelaide
May 12
1 Minda Incorporated v Liquor, Hospitality and Miscellaneous Union[2010] FWA 3217 at paras [10] to [29]; and Liquor, Hospitality and Miscellaneous Union v Minda Incorporated[2010] FWA 3461.
2 The application as made by Minda in April 2010 was also brought in part pursuant to s.418 of the Act and an order was made in relation to certain unprotected industrial action under that provision (PR996398).
3 [2010] FWA 3461
4 Exhibit A1.
5 Evidence of Mr Bollingbroke – HR Manager with Minda.
6 Exhibit R1.
7 Exhibit R2.
8 [2010] FWA 3217.
9 This would apply only if FWA was satisfied that the action remained threatened or probable. If so, the action would not be protected as there would be no notice as required by s.414 of the Act.
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