Minda Incorporated v Liquor, Hospitality and Miscellaneous Union

[2010] FWA 3217

[2010] FWA 3217

FAIR WORK AUSTRALIA

DECISION

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

s.424 - Application to suspend or terminate protected industrial action - endangering life etc.

Minda Incorporated
v
Liquor, Hospitality and Miscellaneous Union
(B2010/2860)

COMMISSIONER HAMPTON ADELAIDE, 27 APRIL 2010

Industrial action - application for orders to cease - whether protected action - application to terminate - whether action endangers life, personal safety or health, or welfare of part of the population - application granted in part.

[1] This is an application by Minda Incorporated (Minda) seeking that Fair Work Australia (FWA) 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 Union).

[2] The application relies upon two separate but related grounds. Firstly, that pursuant to s.418 of the Fair Work Act 2009 (the Act), the industrial action is not protected within the meaning of the Act and as a result, orders should be issued preventing that industrial action. Secondly, that pursuant to s.424(1) of the Act, any protected industrial action will threaten the life, personal safety or health, or welfare of part of the population and as a result, the industrial action should be terminated.

[3] Although this is a single application, it is convenient where appropriate to refer to each of the grounds as the s.418 and s.424 application respectively.

[4] The application was filed on 13 April 2010 and heard on the afternoon and evening of Thursday 15 April 2010. Having considered the matter and the statutory obligations bearing upon the issues, I issued an Interim order 1 on the night of 15 April 2010 preventing industrial action pursuant to s.420(2) of the Act. During the course of 16 April 2010, I also issued an additional Interim order2 pursuant to s.424(4) of the Act suspending any protected industrial action.

[5] In conjunction with the s.424(4) Interim order, I issued a Statement seeking further submissions from the parties concerning issues associated with the question as to whether the industrial action was protected action under the Act.

[6] Having considered the submissions filed by both parties in response to that Statement, on 21 April 2010 I advised the parties that I had determined the matter and issued an order pursuant to s.418(1) of the Act that certain industrial action not occur. 3 I also advised that the application as far as it relied upon s.424 was dismissed and that the Interim orders made pursuant to s.420(2) and s.424(4) of the Act would now lapse in accordance with the Act. In so doing, I announced that I would subsequently issue reasons for both the Interim orders and the final disposition of the application, which I now do.

The evidence before the Tribunal

[7] The following provided evidence:

• Mr Robert Cairney – Acting Chief Executive Officer of Minda;



• Ms Debra McGrath – Manager, Strategic Projects at Minda; and



• Mr Anthanasios Kondopoulos, Developmental Care Team Leader at Minda and LHMU delegate.

[8] All three witnesses provided relevant and reliable evidence of assistance to their respective cases and to Fair Work Australia in determining the matter. Ms McGrath in particular was an impressive witness. There were however limitations on the extent of all witnesses’ direct knowledge of some matters and some of their evidence dealt with opinions.

[9] In addition, I received various documents relevant to the matter including the declaration of a protected action ballot relied upon by the parties and the two notices of industrial action issued by the Union to Minda on 12 April 2010.

The key events leading to the application

[10] The parties have been negotiating a new Enterprise Agreement for some time. In addition, there have been a range of changes made at Minda that have led to a dispute about the introduction and consequences of that change. This is being dealt with in other proceedings. 4

[11] On 26 February 2010, the Union’s application for a Protected Action Ballot pursuant to s.443 of the Act was granted on terms as sought by it. The group of employees for the purposes of the ballot was defined in the following terms:

“3. GROUP OR GROUPS OF EMPLOYEES TO BE BALLOTED

3.1 Subject to 3.2 herein, the employees to be balloted are those LHMU members who are employed by Minda whose terms and conditions of employment are currently regulated by Minda Incorporated Union Collective Agreement No. 6 and for whom the LHMU is a bargaining representative.

For clarity, this includes the following classifications:

• Developmental Care Workers

• Team Leaders

• Cooks

• Head Chef

• Kitchen Assistants

• Apprentices

• Residential Support Workers

• Laundry

• General Handymen

• Drivers

• Vocational Services Officers

3.2. Any employee who is bound by an individual agreement-based transitional instrument that has not passed its nominal expiry date on the day this ballot order is made shall not be balloted, unless such an employee has made a conditional termination of that instrument.”

[12] I add that there are apparently no employees to whom clause 3.2 applies.

[13] The questions to be put to the members included eighteen separate forms of industrial action.

[14] The ballot was subsequently conducted by the Australian Electoral Commission (the AEC) and the result was declared on 24 March 2010. Each of the eighteen questions seeking support from LHMU members were strongly endorsed by a significant majority of the 217 eligible votes that were cast. The voter roll as assembled by the AEC comprised 359 voters, being a figure less than the total LHMU membership at Minda.

[15] Minda lodged an application pursuant to s.240 of the Act seeking the assistance of Fair Work Australia in the negotiations. Conciliation conferences proceeded on Thursday 8 April and Monday 12 April 2010.

[16] On 12 April 2010, the Union purported to lodge two notices of employee claim action with Minda in accordance with s.414 of the Act. The first notice 5 indicated industrial action as follows:

“All LHMU members employed by Minda Incorporated will stop work for 2 hours on Friday 16 April 2010 from 2pm until 4pm.”

[17] The second notice 6 indicated industrial action would be between 6.00am Saturday 17 April 2010 to Saturday 12 June 2010 as follows:

• Bans on completing vehicle log books



• Bans on completing financial records for respite



• Bans on completing statistical records for respite



• Bans on transportation of service users to day placements



• Bans on reconciling service users’ accounts



• Bans on completing financial audits



• Bans on receiving booking requests from parents for respite service users



• Bans on making confirmation telephone calls to parents for bookings for respite for service users.

[18] All of the individual items of notified industrial action are in accordance with the items approved by the protected action ballot. There are a range of items approved as part of the ballot that have not been notified by the Union pursuant to s.414 of the Act.

[19] This application was lodged by Minda on 13 April 2010.

The circumstances applying at Minda

[20] It is not feasible or necessary to outline all of the relevant circumstances applying at Minda that set the context for the consideration of this matter. It is however appropriate to make some general observations.

[21] Minda is a large and long established organisation providing a range of services to people who live with an intellectual disability. The organisation employs in the order of 900 staff and provides services to almost 1,000 individuals.

[22] The operations of Minda cover various sites and functions including significant residential services both at its main Brighton site and in various community houses. This involves a range of care and supervision roles ranging between 24 hours a day – 365 days a year, to respite and vacation care. Other services involve Lifestyle Services, which includes both lifestyle and employment services, and a significant section known as Disability Enterprises which involves ten businesses operating at various sites providing supported employment for almost 130 clients and income for the organisation.

[23] There are of course a wide range of other services and functions including important catering and other services necessary to support an organisation of this nature.

[24] Minda employs staff in a variety of roles with a significant majority of those in functions that are relevant to this application. There are also employees in these and other roles that are covered by the Public Service Association of SA and Minda employs various health professionals including Nurses. Some volunteers also assist but there are limitations on that nature of work and the responsibilities that they can undertake.

[25] The nature of the clients serviced by Minda is a significant consideration in this matter. All of the clients live with an intellectual disability of various degrees and the majority also have other disabilities that impact upon the level and nature of care that must be provided.

[26] The nature of these clients also means that a significant duty of care exists in relation to supervision, the provision of appropriate facilities, meals and medications. It is also the case that routine and familiarity of carers, location and activities is very important to many of the clients in terms of their safety and welfare.

[27] Some clients have significant behavioural care plans and the factors outline above are exacerbated in their circumstances.

[28] The day of the scheduled stop work meeting, being Friday 16 April 2010, was chosen by the Union and its members in part because it was a day known as a “Dot day” on the roster that operates in a significant section of the residential part of Minda’s operations. On a Dot day, all three of the rotating rosters involve employees attending at some time on that day and this meant that the number of employees who would be available to cover those attending the stop work meeting was at its greatest.

[29] That roster does not however apply across all of Minda and as will be outlined later, issues do arise from the extent and impact of any industrial action that might involve all of the Union’s membership.

[30] I will not outline all of the evidence and findings going towards the various forms of industrial action proposed by the Union, however, I have had regard to the same in forming my final conclusions.

The Section 418 application

[31] Division 4 of Chapter 3 – Part 3 of the Act provides relevantly as follows:

“418 FWA must order that industrial action by employees or employers stop etc.

(1) If it appears to FWA 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;

FWA 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) FWA 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, FWA does not have to specify the particular industrial action.

(4) If FWA 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;

FWA 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.

…………

420 Interim orders etc.

Application must be determined within 2 days

(1) As far as practicable, FWA must determine an application for an order under section 418 or 419 within 2 days after the application is made.

Interim orders

(2) If FWA is unable to determine the application within that period, FWA must, within that period, make an interim order that the industrial action to which the application relates stop, not occur or not be organised (as the case may be).

(3) However, FWA must not make the interim order if FWA is satisfied that it would be contrary to the public interest to do so.

(4) In making the interim order, FWA does not have to specify the particular industrial action.

(5) An interim order continues in operation until the application is determined.”

[32] Minda, which was represented with permission by Mr Martin, contended that the action as notified by the Union was not protected because the notices of action purported to have been provided pursuant to s.414 of the Act were defective. Further, and in any event, the action as notified was not protected as it was not authorised by the protected action ballot.

[33] Both of these arguments relied upon the proposition that the scope of the protected action ballot was set by the ballot order of Fair Work Australia and that this should be read as meaning the classifications listed in clause 3.1 of that order. Given that not all classifications occupied by members of the Union were included on that list, the proposed industrial action went beyond the authorisation provided by the ballot and as a result, Minda argued that I should issue an order stopping all industrial action as notified by the Union.

[34] The Union, which was represented with permission by Mr Heywood-Smith QC, contended that the notice of industrial action was effective and all of the industrial action as notified was protected under the Act. In terms of the scope of the ballot, this should be read as authorising all LHMU members who were employed under Minda Incorporated Union Collective Agreement No. 6 (EA6) to take the notified action. In that light, the list of classifications in the ballot order was said to be only illustrative. If there was however a defect in the ballot as a result of not having all LHMU members included, the Union argued that this was a technical breach, and should in line with the policy of the Act and the specific import of s.461, be treated as such by Fair Work Australia.

[35] I would add that the brief summaries outlined above do not attempt to describe the substance and detail of the lengthy and helpful submissions of both counsel made in this matter. I have however considered and attempted to deal with the detail of those submissions in determining what follows.

[36] I am satisfied that the industrial action that has been subject to the s.414 notices of the Union is threatened, impending and/or probable. I leave for present purposes whether the other industrial action as apparently approved by the ballot but not subject to the notices must be considered as being threatened, impending or probable as this has no impact upon the immediate issue.

[37] The first issue to be resolved is whether the industrial action as notified by the Union on 12 April 2010 is protected industrial action within the meaning of the Act.

[38] Section 409 provides as follows:

“409 Employee claim action

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.

Protected action ballot is necessary

(2) The industrial action must be authorised by a protected action ballot (see Division 8 of this Part).

Unlawful terms

(3) The industrial action must not be in support of, or to advance, claims to include unlawful terms in the agreement.

Industrial action must not be part of pattern bargaining

(4) A bargaining representative of an employee who will be covered by the Agreement must not be engaging in pattern bargaining in relation to the agreement.

Industrial action must not relate to a demarcation dispute etc.

(5) The industrial action must not, if it is being organised or engaged in by a bargaining representative, relate to a significant extent to a demarcation dispute or contravene an FWA order that relates to a significant extent to a demarcation dispute.

Notice requirements after suspension order must be met

(6) If section 429 (which deals with employee claim action without a further Protected action ballot after a period of suspension) applies in relation to the industrial action, the notice requirements of section 430 must be met.

Officer of an employee organisation

(7) If an employee organisation is a bargaining representative of an employee who will be covered by the agreement, the reference to a bargaining representative of the employee in subparagraph (1)(b)(i) of this section includes a reference to an officer of the organisation.”

[39] No issues have been raised about the purpose or nature of the claims being pursued by the Union.

[40] Amongst other matters, in order to be protected industrial action it must have been authorised by the protected action ballot. This in turn directly raises the issue as to what the scope of the protected action ballot order, and consequently the ballot itself, was for present purposes.

[41] Each of the nine elements of the industrial action notified by the Union was the subject of the ballot application and the ballot, and each was overwhelmingly endorsed by the Union’s members. However, the scope of the group of employees for present purposes is problematic.

[42] Although the scope of the group of employees within the ballot order is capable of being read as contended by the Union, it is not clear on its face. In those circumstances, it is reasonable and necessary to consider the circumstances and intent of the order as issued by Fair Work Australia.

[43] During the course of proceedings for the making of the ballot order, I questioned the intent behind the framing of the group to be balloted and Mr Love, who appeared for the Union, advised as follows: 7

“THE COMMISSIONER: Just in terms of your draft order, the agreement has been sought, as I understand, in relation to the same class of employees as covered by the agreement on the 6th?

MR LOVE: Yes.

THE COMMISSIONER: In that context, for full clarity of your list, there are I think a number of classifications that are not listed there. Is that deliberate?

MR LOVE: That's correct. My understanding is, the classifications that are not listed don't fall within the eligibility of LHMU membership and I understand the other unions are the PSA - and I'm not sure if there's other unions that have membership also - obviously the ANF in relation to nurses but I'm not sure if they're covered by that agreement, off the top of my head. I've confirmed with the organiser, they're all the areas that we have members at in Minda. The premises relates to kitchen workers.

THE COMMISSIONER: I see. Perhaps in that context, whilst it's the operation of the act in any event, I think it would be appropriate if the orders just record the fact that if there are other bargaining representatives, then they wouldn't be included in the ballot.

MR LOVE: Yes, I'm comfortable with that.”

[44] It is now apparent that the information concerning the inclusive nature of the list of classifications covering all of those under the scope of the LHMU was not correct. I would make it clear that I accept without hesitation that Mr Love was acting in good faith and upon his instructions.

[45] However, given that I granted the ballot order as requested by the Union including those terms, I consider that the scope of the ballot order must now be considered having regard to the information upon which Fair Work Australia made those orders. In particular, the classifications listed in clause 3.1 of the ballot order were intended to establish the group of employees.

[46] As a result, the objective scope of the group of employees subject to the ballot order, and by direct implication the subsequent protected action ballot, must be taken to be those employees of Minda who are members of the Union and whose work and employment is regulated by the Minda Incorporated Collective Union Agreement No. 6 and whose employment is properly categorised in those classifications cited in clause 3.1 of the Protected Action Ballot Order.

[47] The notices of industrial action issued by the Union cover action to be taken by all LHMU members employed by Minda. Although all such members are covered by the Minda Incorporated Collective Union Agreement No. 6, they do not all fall within the scope of the classifications cited in clause 3.1 of the ballot order.

[48] This is not as such a technical error in the ballot process or the requirements of that part of the legislation, and as a result, s.461 of the Act is not relevant here. 8

[49] On that basis, some or all of the industrial action as notified is not authorised by the ballot. In effect, the issue is then whether the notices are completely ineffective so as to mean that there is no valid notice of protected industrial action. Alternatively, whether only that part of the industrial action that falls outside of the scope of that authorised by the protected action ballot is not protected.

[50] The s.409 requirements call up the provisions of s.413 and s.414 of the Act, which provide as follows:

“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.

Compliance with orders

(5) The following persons must not have contravened any orders that apply to them and that relate to, or relate to industrial action relating to, the agreement or a matter that arose during bargaining for the 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 employee and the bargaining representative of the employee.

No industrial action before an enterprise agreement etc. passes its nominal expiry date

(6) The person organising or engaging in the industrial action must not contravene section 417 (which deals with industrial action before the nominal expiry date of an enterprise agreement etc.) by organising or engaging in the industrial action.

No suspension or termination order is in operation etc.

(7) None of the following must be in operation:

(a) an order under Division 6 of this Part suspending or terminating industrial action in relation to the agreement;

(b) a Ministerial declaration under subsection 431(1) terminating industrial action in relation to the agreement;

(c) a serious breach declaration in relation to the agreement.

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.”

[51] In approaching this matter I am also mindful of the purpose of protected action ballots as set out in s.436 of the Act as follows:

“436 Object of this Division

The object of this Division is to establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement.

Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.”

[52] It is clear from s.413(4) of the Act that industrial action of the kind contemplated here is not protected action unless the notice requirements of s.414 have been met.

[53] The role to be played by notices issued pursuant to s.414 of the Act was considered in Telstra v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. 9 The Full Bench said:

“[12] Before turning to the notice in this case it is appropriate to make some observations about the construction of s.414. The first point to note is that the obligations in ss.414(1) and (6) are not cast in terms of an intention to take industrial action but in more positive terms. This is a point of contrast with the language of s.170MO of the WR Act, exemplified by s.170MO(5) which we have set out above. The second point is that in considering whether the notice meets the requirement to specify the industrial action, it is necessary to have regard to the purpose of the notice requirement and the relevant circumstances, in particular the nature of the employer’s undertaking. As to purpose, there 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. The following passage from the reasons for decision in David’s Distribution Pty Ltd v National Union of Workers, a case concerned with the interpretation of s.170MO(5), is apposite:

“[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.”

…

[18] In concluding it should be emphasised that whether a particular notice meets the requirements in s.414(6) will depend upon the terms of the notice and the industrial context . Every case is different and each notice must be looked at having regard to all of the relevant considerations.”

[54] Although these observations were made in a related context, they do cast some light upon the approach to be taken. In my view, the requirement to specify the “nature” of the intended action must be applied having regard to the purpose and objective of the legislation and the relevant considerations of each case. The notice requirements are not absolute but the notice must be clear enough to the employer to ascertain the kind of action (within the scope of that as authorised by a ballot), the likely impact and the timing of that action. As in Telstra, there will be circumstances where the notice issued by a union is so inaccurate or unclear that it would not meet the requirement of s.414(6) of the Act.

[55] In this case, the nature of the action is clear, albeit overstated (in light of my findings) in terms of the protection afforded by the ballot. Minda (correctly) understood the nature of the action that was to be taken. I do not consider in the circumstances of this case that the notice of industrial action as issued is in itself defective so as to mean that all actions taken as a consequence are not protected.

[56] On that basis, and given my earlier findings, the industrial action that falls within the scope of the protected action ballot is protected action under the Act, whilst the action falling outside of the group of employees covered by the ballot is not protected.

[57] The evident purpose of s.418 is for Fair Work Australia to make orders preventing industrial action that is not protected under the Act. In a recent Full Bench decision in National Tertiary Education Industry Union v University of South Australia 10dealing with s.424, and indirectly with s.418 of the Act, the following findings were made as to the capacity to make suspension or termination orders applying only to some industrial action:

“[11] We do not agree with this construction of the power in s.424. The use of the words “suspension” and “termination” of protected industrial action in the section may be contrasted with the power given to FWA in s.418 in relation to the making of orders to “stop” industrial action. The suspension of protected industrial action is to be construed as a suspension of the protection or immunity which attaches to the industrial action under the Act provided it is authorised in a protected action ballot etc. (see s.409). A reference in s.424 to the making of an order “suspending or terminating protected industrial action for a proposed enterprise agreement” would therefore seem to apply to protected industrial action which was authorised by the ballot, and not to the particular industrial action which is being taken as part of what might be a series of actions authorised by the ballot and which is having the requisite harmful effect.

[12] This reading of s.424 would accord with the wider scheme of the Act and, in particular, with the provisions which apply to the making of workplace determinations where an order has been made terminating protected industrial action (see s.266). It would be inconsistent with that scheme if further protected industrial action was able to be taken even though the jurisdiction for the making of an arbitrated determination was in train (see Ambulance Victoria v LHMU [2009] FWA 44, Kaufman SDP). There is no valid reason for adopting a fundamentally different interpretation of s.424 in respect of the power to suspend protected industrial action than is applied in relation to the termination power.

[13] In any event, we note that even if an order made under s.424 was confined to part only of the authorised industrial action, the effect of the order would be to render other industrial action unprotected. The common requirements that apply for industrial action to be protected industrial action are set out in Subdivision B of Division 2 of Part 3-3 of the Act. In particular, s.413(7)(a) provides that industrial action will not be protected industrial action for a proposed enterprise agreement if there is in operation “an order under Division 6 of this Part suspending or terminating industrial action in relation to the agreement”.

[58] As inferred by the Full Bench, the provisions of s.418 are cast differently and have a different effect. On that basis, I am satisfied that it is permissible to make orders under s.418 that only deal with that part of the notified industrial action which is not protected.

[59] In the circumstances here, I was satisfied that this is the appropriate course of action. As a result, on 21 April 2010 I issued a final order pursuant to s.418(1) of the Act providing that the notified industrial action not be undertaken by certain employees. Those being employees of Minda who are members of the Union and whose work and employment are regulated by the Minda Incorporated Collective Union Agreement No. 6 but whose employment does not fall within those classifications cited in clause 3.1 of the Protected Action Ballot Order as made by Fair Work Australia on 26 February 2010 - PR994301.

[60] Section 418(1) requires that such an order must be made for a defined period, the “Stop period”. The intended operation of a stop period is a little unclear in the context of findings that the industrial action is not protected due to the scope of the protected action ballot. The stop period must in my view only apply in relation to those who are subject to the final order and not otherwise. It should also be appreciated that (as a result of the cessation of the s.424(4) Interim order and the operation of s.429 of the Act) 11 the protected industrial action might now be available to the Union upon giving the notice set out in s.459 and without a further ballot. However, the not protected action cannot ever become protected without the necessary steps being taken under the Act. In that light, and without encouraging any such step, I do consider that the stop period should be set allowing (amongst other matters) for the fact that the Union could seek a new ballot and subject to that application being granted, a basis to permit protected action for all of its members could be provided.

[61] In the circumstances, I determined that the stop period for the order should be that period ending at 12 midnight on Friday 28 May 2010, being a period of just under five weeks from the date of the final order.

[62] Section 418(4) provides that where I have made an order in circumstances which include where a protected action ballot order has authorised the industrial action, Fair Work Australia may state that the industrial action may be engaged in after the end of the stop period without another protected action ballot.

[63] In this case, the order only relates to the industrial action that is not authorised by the ballot. As outlined above, it could only ever become authorised if a subsequent ballot provides the necessary foundation for that to occur. On that basis, a statement as contemplated by s.418(4) of the Act was not appropriate.

[64] Before leaving the s.418 application, I will outline the circumstances leading to the making of the Interim s.420(2) order. The application was listed within two days of it being filed on 13 April 2010. After hearing the parties into the evening on 15 April, it was evident to me that a significant issue existed as to whether the industrial action was protected under the Act, and if so, what the consequences were for this application and the immunity otherwise provided to the Union and its members.

[65] In those circumstances I was not able to determine that part of the application as it related to s.418 of the Act. Section 420(2) then obliged me to make an interim order unless I was satisfied that such would be contrary to the public interest (s.420(3) of the Act). The concept of the public interest in my view required, amongst other matters, consideration of the conduct of the parties and the consequences of the interim order.

[66] The application was not mischievous and raised a substantive issue as to the nature of the intended industrial action. It was promptly made and listed in consequence of the notified action, and both parties fully cooperated in the expeditious hearing of the issues. The interim order had the potential (and ultimately did) prevent the proposed stop work meeting, however it was not in my view contrary to the public interest to make the interim order in the circumstances evident here.

[67] As a result of the determination of the application, s.420(5) of the Act provided that the Interim order would cease to operate. This was advised to the parties and noted in the final order.

The section 424 application

[68] Section 424 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.”

[69] The ground raised by s.424(1)(d) was not argued in this matter and does not apply.

[70] As with the other part of this application, both Counsel put detailed argument to me on the operation of the Act and the implications of the evidence. I have considered the same in reaching my decision.

[71] It is sufficient to confirm that Minda contended that I should have regard to all of the industrial action as authorised by the protected action ballot in considering the requirements of s.424 of the Act. That is, it was all threatened, pending or probable.

[72] Minda also argued that the industrial action as foreshadowed, including in particular, the proposed stop work meeting scheduled for Friday 16 April 2010, would cause “havoc” and threaten to endanger the safety and welfare of that part of the population comprising, in the main, the clients of the organisation. Minda also contended that each of the other elements of industrial action would lead to significant consequences for the clients given the nature of the services provided by it and the nature and needs of the clients.

[73] The Union contended that the notified stop work meeting was specifically scheduled on a day when there would be significant capacity to cover the union members attending the meeting. Further, there was a range of alternative strategies available to the management of Minda, including the use of non-LHMU staff to provide for a continuity of services and to ensure the welfare of the clients. In that context, it was suggested that the staff meetings conducted from time to time by management, illustrated that the stop work could be conducted without significant problems.

[74] In addition, the Union contended that the foreshadowed industrial action was carefully planned to avoid adverse consequences and as such it would not relevantly threaten to endanger part or all of the community. Further, the apparent right to take the proposed action as part of the bargaining process was consistent with the scheme of the Act and should not be interfered with other than in exceptional circumstances, which did not apply in this case.

[75] The operation of this provision was recently discussed by the Full Bench in the NTEIU matter cited earlier 12. The Full Bench indicated in part as follows:

“[7] Section 424 provides that Fair Work Australia (FWA) must make an order suspending or terminating protected industrial action if it is satisfied that the action threatens to endanger the life, the personal safety, health or welfare of the population or part of the population or to cause significant damage to the Australian economy. The effect of making an order suspending or terminating protected industrial action is to bring to an end the right to take protected industrial action. This is achieved by the removal of the protection or immunity which would otherwise attach to the action. The termination of protected industrial action may also lead to FWA making a workplace determination under Part 2-5 of the Act (see ss.266 and 267).

[8] Within the scheme of the Act, the powers in relation to the suspension or termination of protected industrial action are intended to be used in exceptional circumstances and where significant harm is being caused by the action. This is clear from the Explanatory Memorandum to the Fair Work Bill 2008:

“The Bill recognises that employees have a right to take protected industrial action during bargaining. These measures recognise that, while protected industrial action is legitimate during bargaining for an enterprise agreement, there may be cases where the impact of that action on the parties or on third parties is so severe that it is in the public interest, or even potentially the interests of those engaging in the action, that the industrial action cease — at least temporarily.

It is not intended that these mechanisms be capable of being triggered where the industrial action is merely causing an inconvenience. Nor is it intended that these mechanisms be used generally to prevent legitimate protected industrial action in the course of bargaining.” [Paras. 1708-1709]”

[76] I have also considered the approach to the prerequisites of s.424(1) as discussed in other relevant decisions of Fair Work Australia. 13 It is clear to me that the intervention of orders by Fair Work Australia should not be made lightly and only where it is positively satisfied that the consequences of the action are significant.

[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.

[83] Those elements as presently notified were subject to two separate notices and it is convenient to deal with each such notice.

[84] The first notice concerned the two hour stop work meeting scheduled for Friday 16 April 2010. The notice only related to that day and primarily as a result of the Interim s.420(2) order, the industrial action did not occur. It is now not threatened, impending or probable and it is not necessary that I deal with it at this point.

[85] I would however indicate that should that two hour stop work meeting still represent threatened, impending or probable industrial action, I would have considered terminating, or at least suspending, the industrial action on the basis of that action.

[86] A stop work meeting or meetings could in my view be organised at Minda that did not relevantly threaten to endanger the life, personal safety or health, or the welfare of that part of the population associated with that enterprise. However, in the case of that as proposed on 16 April, the fact that it was to apply to members of the Union across the workforce at the one time, was of two hours duration and due to end close to or near to the end of the working day for some of the clients, and there were no exemptions or agreed special arrangements to apply in areas where high risk clients would be present, meant that it had the real potential to enliven s.424(1) of the Act.

[87] I take this view despite that fact that it was scheduled on a “Dot day” for many staff when the maximum of alternative (including non-union) employees might be available to cover those who undertook the industrial action.

[88] I would emphasise that it is the combination of all of the circumstances outlined above, in the context of the nature of the work undertaken by the union members and the special needs of the clients of Minda, that would in other circumstances lead to a potential s.424(1) order arising from the proposed stop work meeting.

[89] I turn now to the matters subject to second notice of industrial action as issued on 12 April 2010.

[90] The detail of these bans and limitation are outlined earlier in this decision. I have carefully considered the evidence associated with each of these matters in the context of Minda’s operations. They will no doubt cause some disruption to Minda’s operations and inconvenience to management and potentially to some clients and their families. This is unfortunate, but is in the nature of protected industrial action as contemplated by the Act.

[91] Importantly, given the nature of the bans, their likely impact and the availability of alternatives to ensure the safety and welfare of the community, including most relevantly, the clients of Minda, I am not persuaded that, in isolation or in combination, this industrial action is or would threaten to endanger the life, personal safety or health, or the welfare of part of the population so as to invoke the operation of the relevant provision.

[92] On that basis, there were no grounds for me to make an order pursuant to s.424(1) of the Act and that part of the application was dismissed.

[93] I will however make some comments about the Interim s.424(4) order as made during the hearing of this application.

[94] The other interim order made pursuant to s.420(4) of the Act was made late on Thursday 15 April 2010 and was still in force right up until the determination of this matter on 21 April 2010. Subject to one caveat, that interim order had the effect of preventing industrial action as notified by Union from taking place. However, s.421 of the Act provides that a person is not required to comply with an order made pursuant to (relevantly) s.420, if that order relates to an application under s.418 and the industrial action is or would be protected industrial action.

[95] Section 424(4) required that I issue an interim order because I was unable to determine that part of the application made pursuant to s.424(1) within five days after it was lodged. This was in large measure due to the need to hear further from the parties as to the s.418 application and this related to the protected nature of the action and had to be determined first.

[96] Given that an interim order made under s.424(4) of the Act would not operate subject to the caveat as applying under s.421(2), I was in any event obliged to make that interim order.

[97] As a result of the determination of the application on 21 April 2010, and the operation of s.424(5) of the Act, the s.424(4) Interim order lapsed at that time.

COMMISSIONER

Appearances:

T. Martin of counsel (with permission) for Minda Incorporated.

P. Heywood-Smith QC (with permission) with J. Love for the Liquor, Hospitality and Miscellaneous Union.

Hearing details:

2010

Adelaide

April 15.

Final written submissions:

2010

April 19.

 1   Minda Inc/LHMU Interim Industrial Action Order 2010 PR996232.

 2   Minda Inc/LHMU Interim Industrial Action Order 2010 No 2 PR996272.

 3   Minda Inc/LHMU Final Industrial Action Order 2010 PR996398.

 4   DR2010/92, DR2010/129

 5   Exhibit A2.

 6   Exhibit A3.

 7   Transcript of proceedings on 26 February 2010: PN 15-20.

 8   Section 461 of the Act provides that technical breaches of the protected action ballot provisions do not affect the validity of protected action.

 9 [2009] FWAFB 1698, 15 December 2009 per Giudice J, Acton SDP and Whelan C.

 10   NTEIU v University of South Australia [2010] FWAFB 1014, 14 April 2010 per Boulton J, Ives DP and Gay C.

 11   Section 429 permits protected industrial action in certain circumstances to be undertaken after a suspension without the need for a new protected action ballot. Section 430 requires a new notice to be provided to the employer.

 12   NTEIU v University of South Australia[2010] FWAFB 1014.

 13   Including Ambulance Victoria v Liquor, Hospitality and Miscellaneous Union[2009] FWA 44, 3 August 2009 per Kaufman SDP.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR996365>