Police Federation of Australia v Victoria Police/Chief Commissioner of Police
[2014] FWCFB 2063
•11 APRIL 2014
[2014] FWCFB 2063 |
FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.418—Application for an order that industrial action by employees or employers stop etc.
v
Victoria Police/Chief Commissioner of Police
(C2014/53)
VICTORIA POLICE FORCE ENTERPRISE AGREEMENT 2011
(ODN AG2011/12253) [AE889678]
State and Territory government administration | |
DEPUTY PRESIDENT SMITH | MELBOURNE, 11 APRIL 2014 |
Application for an order that industrial action by employees or employers stop.
Introduction and Background
[1] Police bands have a long history with Victoria Police. The first bands were formed in 1891 with the Highland Band being formed in 1936. Initially the bands were comprised of sworn police officers who were part time musicians, but in 1988 Chief Commissioner Glare decided that the band would consist of full-time sworn positions. In 1993-94 the current structure of three musical bands was established. They are:
● Pipe Band;
● Rock Band; and
● Show Band.
[2] Following a review of the role of Police Bands by Victoria Police, Deputy Commissioner Nolan advised The Police Federation of Australia (PFA) on 4 September 2013 that Victoria Police had endorsed a proposal to civilianise the Police Bands in order to free up 45 sworn positions to frontline operational roles.
[3] On 29 October 2013, Victoria Police issued an expression of interest to members of the bands asking them to indicate a preference for:
● being redeployed to a civilian Pipe Band;
● applying to become a Police Recruit or Protective Services Officer; or
● accepting a career transition package.
[4] The matter initially came to the Commission on 15 November 2013 as a notification of a dispute arising under the Victoria Police Force Enterprise Agreement 2011 (the Agreement). That mater was progressing.
[5] Whilst a number of members of the Police Bands accepted offers made by Victoria Police, it appears that the majority did not and the Chief Commissioner decided to redeploy those persons to the position of Property Officers.
[6] On 10 January 2014, the PFA made application for an order directed at the Chief Commissioner of Police preventing him from transferring any member of the band to positions which were not musician positions as provided for under the Agreement. The PFA characterised such action as a lock-out and sought an order pursuant to s.418 of the Fair Work Act 2009 (the Fair Work Act).
[7] The matter was called on for hearing before Deputy President Smith on 13 January 2014. At that time the PFA made submissions and led witness evidence asserting that the contract of employment of the persons involved meant that to transfer the musicians to the position of property officer, was to prevent the employees from performing work under their contracts of employment without terminating those contracts.
[8] Victoria Police argued that the Chief Commissioner could redeploy the persons to other duties. In addition, it argued that some of the band members had taken up offers and for them the matter had moved on.
[9] At the conclusion of the hearing Deputy President Smith decided:
“I find myself in a position of being unable to determine the application within the two day period specified under the Act, and accordingly the Act requires that I 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. Whilst the parties have touched on the issue of the public interest, there has not been full debate about the public interest which would satisfy me sufficiently not to make the interim order.
This is not an easy matter. It revolves around whether or not there is a contract of employment which limits the work and scope of persons in Victoria Police bands. That requires some consideration. I propose to do the following. Firstly, I will issue an interim order in the terms sought by the applicants with the exception of the service of the order. I will not require it to be done by facsimile transmission but any form of electronic transmission and, secondly, I will add to the order:
‘The order shall not apply to persons who have consented to offers made by the Chief Commissioner to move from the police band.’
The issue of consent is a matter that the parties can discuss. I am going to re-list this matter. If there are any further submissions tomorrow, I have the other file listed at 10 am. If there are any other further submissions to be put, they can be put at that time. The order will come into force from midnight tonight. The matter is now adjourned.” 1
[10] The Deputy President listed the matter for the next day to provide both parties with a further opportunity to put submissions.
[11] At that time, Victoria Police asserted that the Chief Commissioner had exercised powers under the Police Regulation Act 1958 (the Regulation Act) and that the Commission had no power to make an order because of the Fair Work (Commonwealth Powers) Act 2009 (Vic) (the Referral Act). Victoria Police submitted that the order should be set aside but that it would give an undertaking for a defined period that it would behave as if an order had been made.
[12] The undertaking was in the following terms:
“The undertaking is that while it is, as I understand them, in the terms of the proposed order—that is that Victoria Police, without accepting that industrial action is occurring, will behave for a period of time as if an order were in place in respect to the remaining staff out at Green Street and not proceed with the proposed transfer to property officer roles until such time as the matters that we’ve identified and that we’re probably yet to identify, are fully articulated before this Commission at a date to be fixed.” 2
[13] The PFA opposed the order being set aside but sought that the exclusion from the order of persons who had consented to any of the alternatives put by Victoria Police be revisited and that those persons should be given the opportunity to withdraw their consent. This was opposed by Victoria Police. It also submitted, without any concession, that even if a final order was beyond power, the Commission could make an interim order 3 and relied upon a decision of Kaufman SDP in The Police Association v Chief Commissioner of Police.4
[14] At the conclusion of that hearing Deputy President Smith decided to continue the interim order given the limited argument and agreed to programme the matter further.
[15] By instrument dated 22 January 2014 the President, the Honourable Justice Ross, directed that this matter be dealt with by a Full Bench. Hearings were held on 23 and 30 January and 5 February 2014. Given the complexity of the matter before the Full Bench permission to appear was give to Mr Mark Irving of counsel and Mr Bryan Mueller of counsel.
[16] It is against that background that we now turn to deal with the matters before us. We turn firstly to the various pieces of legislation which are relevant in this matter.
The regulatory framework
[17] The Police Regulations 2013 (the Regulations) set out the basis of recruitment of Victoria Police Band members together with the provisions going to transfer and termination. In relation to recruitment, Regulation 7 provides:
“7 Appointment to specialist areas
Despite regulation 6(b) and (d), the Chief Commissioner may appoint a person with special qualifications or relevant required expertise to-
(a) the Police Air Wing; or
(b) the Police Bands; or
(c) the Technical Support Unit, Covert Support Division.”
[18] It can be seen that Regulation 7 provides an exemption from Regulation 6(b) and (d) which provide:
“6 Qualifications for appointment to the force
A person is qualified for appointment to the force if the person-
(a) is of good character and reputation; and
(b) is a citizen or permanent resident of Australia or entitled to this status under Commonwealth law; and
(c) has completed a medical examination to the satisfaction of a registered medical practitioner nominated by the Chief Commissioner; and
(d) has passed the following tests set by the Chief Commissioner-
(i) a general intelligence test; and
(ii) a written examination; and
(iii) an agility test.”
[19] It can also be seen that appointment to the Police Band is a direct appointment having regard to the skills needed for the band. These are not police skills but musical skills. Other than those described in Regulation 7 all other persons will enter the Police Force through the normal means. From the evidence, Police Band members who are recruited:
● do not have to be Australian Citizens or permanent residents or entitled to this status under Commonwealth law;
● do not attend the Police Academy;
● have no police training other than a three day workshop;
● are not qualified to carry firearms;
● have powers of arrest;
● are sworn as Constables but paid specified wages contained in the Agreement at clause 153.
[20] The next relevant legislative instrument is the Police Regulations Act 1958 (the Regulations Act).
[21] The appointment of, in this case Constables, is regulated by clause 8 of the Regulations Act. The Chief Commissioner of Police may in accordance with the Regulations, appoint, promote and transfer persons from the rank of Commander down. Clause 13(1) provides:
“(1) Any person appointed to be a member of the force shall not be capable of acting in any way as such member until he has taken and subscribed the oath set forth in Form A of the Second Schedule.”
[22] It is clear from the evidence and history of this matter that members of the Police Band have taken and subscribed to the oath. They are all sworn as Constables.
[23] Clause 13(3) provides:
“(3) Every person who has taken and subscribed such oath shall be taken to have, from the day on which such oath has been taken and subscribed, thereby entered into a written agreement with, and shall be thereby bound to serve Her Majesty as a member of the force, and in whatsoever capacity he is hereinafter required to serve, and at the current rate of pay of any rank to which he is appointed or reduced legally discharged; and such agreement shall not be set aside cancelled or annulled for want of reciprocity, but every such agreement shall be determined by the discharge dismissal or other removal from office of any such person, or by the acceptance of the resignation of the Chief Commissioner or of any Deputy or Assistant Commissioner by the Governor in Council, or by the acceptance of the resignation of any other member of the Force by the Chief Commissioner.”
[24] It can be seen that members of the Police Band are directly recruited because of their musical skills and do not undergo any normal police training. However, they are also sworn as Constables.
[25] To complete the picture, it is also necessary to examine the legislative provisions relating to the exercise of power of the Commission.
[26] The legislation governing applications to stop industrial action is contained in s.418 of the Fair Work Act 2009 (the Act). It provides:
“418 FWC must order that industrial action by employees or employers stop etc.
(1) If it appears to the FWC 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;
the FWC 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) The FWC 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, the FWC does not have to specify the particular industrial action.
(4) If the FWC 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;
the FWC 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, the FWC must determine an application for an order under section 418 or 419 within 2 days after the application is made.
Interim orders
(2) If the FWC is unable to determine the application within that period, the FWC 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, the FWC must not make the interim order if the FWC is satisfied that it would be contrary to the public interest to do so.
(4) In making the interim order, the FWC does not have to specify the particular industrial action.
(5) An interim order continues in operation until the application is determined.”
[27] Industrial action is defined as:
“19 Meaning of industrial action
(1) Industrial action means action of any of the following kinds:
(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d) the lockout of employees from their employment by the employer of the employees.
Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.
(2) However, industrial action does not include the following:
(a) action by employees that is authorised or agreed to by the employer of the employees;
(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;
(c) action by an employee if:
(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.
Note: In this section, employee and employer have their ordinary meanings (see section 11).”
[28] Within Victoria, entities that are not corporations may nonetheless be covered by the Act as a consequence of the Victorian Parliament passing the Fair Work (Commonwealth Powers) Act 2009 (Vic) (the Referral Act). It is also clear that industrial action is a matter referred. There is no issue on this point.
[29] Relevantly, a law enforcement officer is specifically covered in a number of places. To begin, a law enforcement office is defined:
““law enforcement officer” means any of the following—
(a) a member of the force within the meaning of the Police Regulation Act 1958 ;
(b) a police reservist appointed under Part VI of the Police Regulation Act 1958;
(c) a protective services officer appointed under Part VIA of the Police Regulation Act 1958 ;
(d) a police recruit appointed under section 8A of the Police Regulation Act 1958”
[30] In relation to law enforcement officers, there are certain matters specifically excluded from the reference. These exclusions are found in Clause 5 (2) which provides:
“(2) In addition to the matters set out in subsection (1), a matter referred by section 4(1) does not include—
(a) matters pertaining to the number, identity or appointment (including terms and conditions of appointment, to the extent provided for in paragraph (b)) of law enforcement officers;
(b) matters pertaining to probation, promotion, transfer from place to place or position to position, physical or mental fitness, uniform, equipment, discipline or termination of employment of law enforcement officers except—
(i) matters pertaining to the payment of allowances and reimbursement of expenses and pertaining to notice of termination of employment and payment in lieu of notice of termination of employment; and
(ii) to the extent that Divisions 1 and 2 of Part 6-4 of the Commonwealth Fair Work Act, as originally enacted, deal with the matters.”
The submissions
[31] For Victoria Police it is argued that the interim order should be set aside. It argues that the Commission does not have the power to make a final order having regard to both theRegulations Act and the Referral Act. It is argued that the Regulations Act provides that a band member is sworn and accepts the following: Every person who has taken and subscribed such oath shall be taken to have, from the day on which such oath has been taken and subscribed, thereby entered into a written agreement with, and shall be thereby bound to serve Her Majesty as a member of the force, and in whatsoever capacity he is hereinafter required to serve,
[32] It follows, in the submission of Victoria Police that band members taking the oath do so in the knowledge that they may be directed to serve in whatsoever capacity. In addition, the Referral Act specifically excludes from the jurisdiction of the Commission matters relating to transfer from place to place or position to position, of law enforcement officers. It is submitted that if the Commission cannot regulate those matters then it would follow that the Commission could not prevent the Chief Commissioner from exercising those powers to transfer from place to place or from position to position.
[33] Victoria Police argued that as the Commission cannot make a final order in relation to these matters then, pursuant to s.420(3) of the Fair Work Act, it would be contrary to the public interest to make an interim order. Victoria Police seek that the interim order be set aside.
[34] It is also a principal argument of Victoria Police that there is no industrial character to the dispute and as such there is no power to make an order under either s.418 or s.419. It is argued that the definition contained in s.19 of the Fair Work Act, as determined by the Full Benches of the Commission, makes it clear that the definition of industrial action has a clear and limited meaning.
[35] The PFA began by outlining the nature of the appointment of the musicians in the Police Band with particular reference to; the Regulation Act, the Regulations and letters of offer together with individual employment agreements. The nature of the appointment and the training was contrasted with those who sought to become operational police officers and property officers who were largely not sworn. It was submitted that no police officer owns a property officer role. These submissions were made to support the contention that there was a contract of employment 5 between the Police Band members and Victoria Police which meant that if the Chief Commissioner sought to transfer such persons, then this enlivened the definition of lockout where and employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.
[36] In this connection, it was also submitted that given the specific nature of the appointment, then there was no power for the Chief Commissioner to transfer to an area of work which did not benefit from the exemptions to appointment enjoyed by musicians recruited to the Police Band. 6
[37] We pause to note that it is the well established principle that what cannot be done directly cannot be done indirectly. In this connection we note, without conclusion in this case, the decision of the Full Bench in Construction, Forestry, Mining, and Energy Union v Queensland Bulk Handling Pty Ltd 7:
“[51] The first is the well established principle that what cannot be done directly cannot be done indirectly. As their Honours Mason CJ, Gaudron and McHugh JJ observed in Caltex Oil (Aust) Pty Ltd v Best:
“An express statutory prohibition against contracting out renders void or inoperative contractual provisions which are inconsistent with the statute. Inconsistency between contract and statute is not confined to literal conflicts or collisions between the contractual provisions and the statutory provisions. Inconsistency in this context arises whenever there is a conflict between a contractual provision or the operation of such a provision and the purpose or policy of the statute. So, if the operation of a contractual provision defeats or circumvents the statutory purpose or policy, then the provision is inconsistent in the relevant sense and falls within the injunction against contracting out.
The principle that it is not permissible to do indirectly what is prohibited directly, which is expressed in the maxim quando aliquid prohibetur, prohibetur et omne per quod devenitur ad illud, is a more traditional general statement of the same purpose.”
[52] This principle was applied by the predecessor to the Tribunal, the Australian Industrial Relations Commission (the Commission), in the Family Court Counsellors Case. One of the issues in that case was whether the Commission had power to certify an agreement that was inconsistent with the terms of an earlier certified agreement between the same parties, during the period of operation of the earlier agreement. At the relevant time the then Industrial Relations Act 1988 (the IR Act) did not provide a mechanism for dealing with the legal relationship between two inconsistent current and operative certified agreements which involved the same parties. The Commission decided that the certification of the latter agreement was impliedly prohibited having regard to the policy and purpose of Division 3A of the IR Act:
“Division 3A has effectively codified what may be done in relation to agreements of the type to which the Division applies. The Division deals with the way in which they are made legally effective (certification under s 134E), the limited way in which they might be varied (ss 134L and 134M) and the way in which they might be terminated either before (ss.134M and 134N) or after the time at which they expire (ss.134J, 148 and 113).
In our view, the power to certify an agreement does not include a power to certify an agreement that is inconsistent with the terms of an earlier certified agreement between the same parties during the period of operation of the earlier agreement. That limit on the power to certify arises by implication. If the parties to an agreement are directly precluded by Division 3A from altering its effect during its period of operation then it appears to us to follow that the Division should be construed to preclude them altering its effect indirectly. The relevant principle of statutory construction that what is prohibited directly cannot be done indirectly is discussed by Handley J in Container Terminals Australia Ltd v Xeras . The certification of a second inconsistent agreement is something that is ‘impliedly prohibited by the intended operation of Division 3A.”
[53] The second aspect of the contextual approach relevant here is the general proposition that where a particular procedure is designated to achieve something other procedures are impliedly excluded, reflected in the maxim expressum facit cessare tacitum.
[54] In Anthony Hordern and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia Gavan Duffy CJ and Dixon J said:
“When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.”
[55] Similarly, in R v Wallis; Ex parte Employers Association of Wool Selling Brokers Dixon J said (at 550): ‘[A]n enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.’ In that case the Court held that a section of an act that indicated the manner in which an arbitrator was to deal with a particular issue precluded the arbitrator dealing with that matter in accordance with more general procedures provided for in that act.”
[Footnotes omitted]
[38] Submissions were also made that the direction to transfer to the property officer role does not fall within the transfer provisions of the Regulations Act.
[39] Having canvassed the statutory context in which Police Band members are employed and the power of the Chief Commissioner to transfer, the PFA turned to the impact of the Referral Act. It submitted that if the Referral Act applied in that law enforcement officers were national system employees, then for those matters not referred they are not national system employees. In this connection, it was submitted that a non-referred matter was the transfer of employees. It was submitted that this meant that if s.418 of the Act did not apply then s.419 did. It was submitted that if s.419 applied then consideration would still need to be given to the decision of the High Court in Re: Australian Education Union [(1995) 184 at 231]. which was broader in its application that the constraints contained in the Referral Act. Although it was submitted that the application of s.419 would have to be read in the context of Victoria v The Commonwealth. 8
[40] At this stage we also note that following an application by the PFA, his Honour the President, also referred a s.419 application to this Bench.
Conclusion
[41] At the conclusion of the submissions we announced:
“We have reached a decision in this matter and given the circumstances, we think it’s appropriate to announce our decision and publish our reasons at a later date. We are not persuaded with the action taken by the Chief Commissioner of Police was a lockout as defined by the Fair Work Act. The action taken lacks the necessary industrial character, having regard to the statutory context and the purpose of the conduct. We note the argument that the persons subject to this application cannot be transferred because the Chief Commissioner cannot do indirectly what cannot be done directly, but this does not, in a final consideration of the matter, alter the character of what constitutes a lockout. If that argument is correct, it lends itself to an application in another place. We set aside the interim order and dismiss the application.” 9
[42] We now turn to our reasons. Given the decision we reached, it is not necessary to deal with a number of detailed arguments advanced about the nature of the relationship between Victorian Police and persons in the band, the matters going to the referral power or the capacity of the Chief Commissioner to transfer persons and in particular those appointed using the exemptions contained in regulation 7 of the Regulations.
[43] A brief review of the history of the provision in relation to lockouts may assist in an understanding of the current position. The Industrial Relations Reform Act 1993 (the Reform Act) introduced a limited right to strike and a right to lockout. The Minister, the Hon. L Brereton, in the second reading speech to the Parliament on 28 October 1993 introduced a new framework for bargaining which “emphasises the need for a fairer and more effective regime to regulated industrial action and sanctions”. In relation to strikes and lockouts the Minister said “Industrial action - including strikes and lockouts - which takes place during a bargaining period for a proposed single business certified agreement will be immune from sanctions.” Prior to these amendments industrial action was seen as inimical to the operation of conciliation and arbitration.
[44] These amendments were aimed at providing protected industrial action during bargaining and in support of advancing claims by either the employees or the employer. The resultant amendment to the Industrial Relations Act 1988 saw the introduction of s.170PG. That section contained the following provisions under Part VIB—Div 4—Immunity from civil liability. In particular s.170PG(3) and (4) provided:
“(3) Subject to subsection (6), during the bargaining period, the employer is entitled, for the purpose of:
(a) supporting or advancing claims made by the employer that are the subject of the industrial dispute; or
(b) responding to industrial action by any of the relevant employees;
or for both of those purposes, to lock out all or any of the relevant employees from their employment and, if the employer does so, the lockout is protected action.
(4) The reference in subsection (3) to the employer locking out employees from their employment is a reference to the employer preventing employees from performing work under their contracts of employment without terminating those contracts.”
[45] It can be seen that this section formed a part of the new bargaining regime and was linked specifically with supporting or advancing claims in the context of bargaining. It was to provide protection from collateral legal action when using economic power to advance the interests of the respective bargainers. The object of the Division made clear that the Division was to give effect to Australia’s obligations under Article 8 of the International Covenant on Economic, Social and Cultural Rights together with ILO Conventions 87 and 98.
[46] Under the present Act, Part 3-3, Division 2 deals with industrial action both protected and unprotected. Section 19 contains a definition of industrial action (reproduced at [27] of these reasons). It also contains a legislative note. The Explanatory Memorandum deals with how the definition of industrial action is to be applied by the Commission:
“The legislative note at the end of subclause 19(1) alerts the reader to the decision of the AIRC in Automotive, Food Metals, Engineering, Printing and Kindred Industries Union v The Age Company Ltd [2004] AIRC 1254. The note is included to clarify that the definition of industrial action is only intended to cover actions that have an industrial character and occur within the area of disputation and bargaining.” 10
[47] Therefore, a convenient starting point in identifying whether particular conduct or action is industrial action under this Act is the decision referred to in the note contained in s.19—Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited 11. This was a Full Bench sitting on an appeal against a decision of a Commissioner who made order directed at stopping The Age from closing down a facility and terminating the employment of persons engaged at that facility. In that decision the Full Bench outlined the submission of The Age:
“It was submitted on behalf of The Age that the definition of industrial action is subject to a necessary implication that the action concerned is engaged in to support a demand. Put another way, conduct is not within the statutory meaning unless it is engaged in for the purpose of furthering a relevant claim or claims. On that basis it was submitted that the conduct complained of in this case, being termination of employment on the ground of redundancy, could not be characterised as industrial action because it did not have the requisite purpose. The submission on behalf of the Commonwealth went a little further than that on behalf of The Age in that it was contended that the action must be industrial in character. It was further contended that action which is “driven by normal business considerations” cannot be industrial action.” 12
[48] The Bench also outlined the argument put forward by the Union:
“It was submitted by the respondent unions that this construction is too narrow. While s 127 enables the Commission to make orders stopping or preventing inappropriate conduct related to bargaining, the section also enables the Commission to make orders to stop other inappropriate conduct, such as conduct which is in breach of an award or a certified agreement. It was contended that the references in s.127 to industrial instruments indicate that s127 is available to maintain settlement of disputes and to protect agreements.” 13
[49] The Bench concluded:
“In a statutory context which is concerned with industrial disputation and enterprise bargaining it might fairly easily be concluded that a definition of industrial action is intended to be confined to action which occurs in the course of an industrial dispute or bargaining in relation to a demand concerning the conditions to be afforded by an employer to its employees. If such were the case, however, as counsel for the unions pointed out, so-called political strikes may not be amenable to an order pursuant to s.127 - a conclusion at odds with a number of Commission decisions and with the decision of the Federal Court of Australia in Communications Electrical Energy Information Postal Plumbing and Allied Services Union of Australia and another v Commissioner Laing of the Australian Industrial Relations Commission and another.
It seems to us likely that the legislature did not intend to include conduct which stands completely outside the area of disputation and bargaining and that accordingly the definition should be read giving some weight to the word industrial. But precisely how far this qualification might extend is a question of degree. We do not think it is desirable that we go further than is necessary to decide this case. As is clear, we have not found it necessary to go beyond the words of the definition.” 14
[50] From the foregoing, it appears to us that definition of industrial action in s. 19 of the Act makes clear, when regard is had to the legislative note, that industrial action does not include action that stands completely outside of disputation and bargaining and is limited to conduct in connection with disputes of a particular kind and with bargaining. The word “industrial” in the description “industrial action” necessarily limits the kind of action that falls within that description, even if that action might otherwise be said to fall within one or more of paragraphs (a) to (d) of s. 19. That the action said to be “industrial action” causes a dispute does not, in our view, give the action the particular industrial character that must necessarily be present. It follows that the Commission’s power to make orders under s. 418 and 419 stopping that action is similarly circumscribed. Counsel for Victoria Police described what it submitted was the key to the operation of s.19 in relation to the industrial character of a matter:
“..The relevant question is: to what end is the action directed? What is the purpose of the action? What is the motivation of the conduct which is impugned? If the answer to that is it’s not to press a claim or to prosecute an industrial agenda but it is in fact to achieve an organisational objective quite outside any context of bargaining, then it does not have that character.” 15
[51] For present purposes we agree with Counsel for Victoria Police.
[52] On the material before us, it can be seen that the Chief Commissioner of Police was not pursuing an industrial agenda or pressing a claim and used the transfer of Band members to advance that claim. The action by the Chief Commissioner did not have this industrial character. The Chief Commissioner was by his action, seeking to implement organisation change. That his action resulted in disputation did not give the action an industrial character.
[53] It was on this basis that we set aside the interim order and dismissed the application.
DEPUTY PRESIDENT
Appearances:
M. Irving of counsel for the Police Federation of Australia.
B. Mueller of counsel on behalf of The Chief Commissioner of Police.
Hearing details:
2014.
Melbourne:
January, 23 and 30;
February, 5.
1 Transcript at paragraphs 246 to 249.
2 Transcript at paragraph 286.
3 See Re Media, Entertainment and Arts Alliance; Ex Parte: the Hoyts Corporation Pty Limited (1992-1993) 178 CLR 379.
4 PR938271.
5 See Jarrett v Commissioner of Police (2005) 224 CLR 44 and Arthurson and Ors v State of Victoria Supreme Court of Victoria No. 8342 of 1997
6 See Regulation 7.
7 [2012] FWAFB 7551.
8 (1996) 138 ALR 129.
9 Transcript at paragraph 1820.
10 Explanatory Memorandum, Fair Work Bill 2009 (Cth.) at paragraph 90.
11 PR946290.
12 Ibid at paragraph 39.
13 Ibid at paragraph 40.
14 Ibid at paragraphs 45 and 46.
15 Transcript at paragraph 622.
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