Telstra Corporation Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)
[2009] FWA 1599
•5 DECEMBER 2009
Note: An appeal pursuant to s.604 (C2009/11245) was lodged against this decision - refer to Full Bench decision dated 15 December 2009 [[2009] FWAFB 1698] for result of appeal.
[2009] FWA 1599 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.
v
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)
(C2009/11216)
VICE PRESIDENT LAWLER | MELBOURNE, 5 DECEMBER 2009 |
Application for an order that industrial action stop etc. - notice under s.414(6) - notices specifies intention to take action in the form of “an unlimited number of indefinite stoppages” in “All States and Territories of Australia” - whether notice specifies the “nature of the action”.
[1] This is an application by Telstra for an order under s.418 of the Fair Work Act 2009 (FW Act) stopping etc industrial action foreshadowed by the CEPU through the service of notices purportedly complying with s.414 of the FW Act. The application was heard on the afternoon of Friday 4 December 2009. I refused the application and gave a brief outline of my reasons orally and indicated that I would provide fuller written reasons within a short timeframe. These are those written reasons.
[2] Section 413 of the FW Act sets out the “common requirements” for industrial action to be protected industrial action. One of those requirements is:
(4) The notice requirements set out in section 414 must have been met in relation to the industrial action.
[3] Thus, one of the requirements that must be satisfied before industrial action can be protected action is the service of a notice complying with s.414 of the FW Act including, relevantly for present purposes, the requirement in s.414(6):
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.
[4] Telstra contends that the foreshadowed action will not be protected action because the relevant notices do not specify the “nature of the action” as required by s.414(6) of the FW Act.
[5] The employees in question are covered by the Telstra Enterprise Agreement 2005-2008, an agreement certified under s.170LJ of the Workplace Relations Act 1996 (WR Act). That agreement reached its nominal expiry date on 5 September 2008.
[6] On 6 November 2008 I made a protected action ballot order in favour of the CEPU. The question put to the voters in the ballot was:
“Do you, for the purpose of advancing claims in the negotiation of a Union Collective Agreement between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia ("CEPU") and Telstra Corporation Limited ("Telstra") authorise the taking of protected industrial action against Telstra which may involve you and/or other employees engaging in any or all of the following forms of action:
(i) An unlimited number of four (4) hour rolling stoppages of work;
(ii) An unlimited number of twenty-four (24) hours rolling stoppages of work;
(iii) An unlimited number of forty-eight (48) hours rolling stoppages of work; and,
(iv) An unlimited number of indefinite or periodic bans on overtime (paid and unpaid), recalls/call backs, performing higher duties and not attending management meetings;
(v) An unlimited number of indefinite stoppages at work?” (emphasis added)
[7] The ballot resulted in a vote in favour of approving that action.
[8] On 28 July 2009 Drake SDP made an order pursuant to item 14A of Schedule 13 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 the effect of which to was deem action authorised under s.478 of the WR Actto have been authorised by a protected action ballot under subsection 459(1) of the FW Act.
[9] Recently, the CEPU has served on Telstra a series of notices of intention to take industrial action which are in relevantly identical terms. For example, a notice dated 1 December 2009 is in the following terms:
You are hereby advised that members of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“CEPU”) employed by Telstra Corporation Limited will take employee claim action for the purposes of supporting or advancing claims made by the CEPU as their bargaining representative for a proposed agreement the subject of the Order handed down in matter number B2009/10347 on 28 July 2009.
The employee claim action will take the form of an unlimited number of indefinite stoppages of work by those CEPU members whose normal place of work is:
All States and Territories of Australia.
The employee claim action will occur between the hours of 12.01 a.m. and 12.59 p.m. on Saturday 5h December, 2009.
[10] The issue that determines the outcome of the present application is whether the notices relating to action for future dates (Notices) describe “the nature of the [intended] action” sufficiently to meets the statutory requirement in s.414(6) of the FW Act.
[11] It may be noted that s.437(3) of the FW Act specifies that an application for a protected action ballot order “must specify... the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.” A Full Bench has held in relation to this requirement that questions to be put to employees in a protected action ballot under the FW Act must be stated with sufficient clarity for the employees to be able to make a clear choice: employees “…must understand what work would not be undertaken and what work would remain to be done. The description of the nature of industrial action…should enable employees to understand the implications for them while at work, and other relevant circumstances.” 1
[12] Ordinarily when the same language is used in different places in a statute, it will be presumed that the legislature intended that language to have the same meaning in each place. Such a presumption is rebuttable. Where it is clear from the context in which the language is used that different meanings were intended, a court or tribunal must given effect to such construction. In my view that is the approach which should be taken to the reference to the “nature” of proposed/intended industrial action in s.437(3) and s.414(6) of the FW Act. The former is concerned with generic classes of action while the latter is concerned with an intention to take particular action against an employer on a particular day.
[13] I note that the explanatory memorandum for s.414 of the FW Act does not provide much assistance. Relevantly, is states:
1666. Industrial action is protected only if the requisite period of notice of the intended action is given before the action starts. Clause 414 sets out the notice requirements a person must meet before engaging in employee claim action, employee response action or employer response action.
1667. Before an employee engages in employee claim action for a proposed enterprise agreement, a bargaining representative of the employee must provide written notice of the intended industrial action to the employer (subclauses 414(1) to (2)). That notice must be given at least three working days prior to any industrial action unless FWA has specified a longer period (of up to seven working days) in a protected action ballot order.
...
1672. Subclause 414(6) details the information required to be included in the notice of intended employee claim action, employee response action or employer response action, as the case may be. The notice must specify the nature of the industrial action to be taken and the day on which the intended industrial action will start. The content requirements contained in this subclause substantially replicate the requirements in subsection 441(6) of the WR Act.
[14] In Davids Distribution Pty Ltd v National Union of Workers 2 the Full Court of the Federal Court was concerned with an appeal against a decision and orders of North J that raised the issue of whether picketing constituted industrial action. The Court also considered arguments in relation to the validity of notices of industrial action under s.170MO of the WR Act as it then stood. At that time, section 170MO(1) provided that action mentioned in s.170ML(2) by an organisation of employees (amongst others) is not protected action unless the requirements of s170MO(2) were met. Relevantly, s.170MO provided:
170MO Notice of action to be given
(1) Any action taken as mentioned in subsection 170ML(2) by:
(a) an organisation of employees; or
(b) a member of such an organisation; or
(c) an officer or employee of such an organisation acting in that capacity; or
(d) an employee who is a negotiating party;
is not protected action unless the requirements set out in subsection (2) are met.
(2) The requirements are that:
(a) if the action is in response to, and is taken after the start of, a lockout of employees by the employer in respect of the proposed agreement—the organisation, or the employee who is a negotiating party, has given the employer written notice of the intention to take the action; or
(b) in any other case—the organisation, or the employee who is a negotiating party, has given the employer at least 3 working days’ written notice of the intention to take the action.
...
(5) A written notice or other notification under this section must state the nature of the intended action and the day when it will begin.
[15] Section 414(6) of the FW Act contains the same criteria as s.170MP(5) of the WR Act as it stood at the time of the decision in Davids Distribution. Accordingly, the reasoning in Davids Distribution is equally applicable to the requirements of s.414(6) of the FW Act.
[16] At first instance in that case, and relevantly for present purposes, North J had held that there was a serious issue to be tried on whether “the action of the strikers was sufficiently notified by reference in the notice to ‘rolling stoppages’”. Wilcox and Cooper (with whom Burchett J effectively agreed) stated 3:
84 The question addressed by North J... is one of considerable difficulty, about which people may reasonably reach different conclusions. Parliament did not indicate what degree of specificity it intended by the term “nature of the intended action”. To interpret this term, on the one extreme, as requiring no more than an indication of industrial action, as argued by NUW, would be significantly to devalue s170MO(5); the notice would provide little information. To interpret it, on the other extreme, as requiring precise details of every future act or omission would be to impose on the giver of a notice an obligation almost impossible to fulfil. Industrial disputes are dynamic affairs. Decisions as to future steps often need to be made at short notice, sometimes in response to actions of the opposing party or other people, including governments, and changing circumstances. It would be a major, and unrealistic, constraint on industrial action to require a party to specify, three clear working days in advance, exactly what steps it would take. An unduly demanding interpretation of s170MO(5) would seriously compromise the scheme of Division 8 of Part VIB of the Act; it would be difficult for a party to an industrial dispute to obtain the protection contemplated by the Division. (emphasis added).
[17] The emphasised portion of this passage applies with equal force in relation to the regime of enterprise bargaining and industrial action created by the FW Act. There must not be an “unduly demanding interpretation” of s.414(6). Their Honours continued:
85 North J appreciated these points. He also appreciated the need for simplicity of application and certainty. His answer was to relate the phrase "nature of the intended action" to the various paragraphs in the s4 definition of "industrial action". However, while we appreciate the factors that drove North J to that answer, we have difficulties with it. In the first place, nowhere in the Act is there any cross-reference between the s4 definition and s170MO(5). The subsection does not use the term "industrial action". Rather it uses the definite article, in speaking of "the intended action". It seems to us this implies a measure of particularity greater than would be conveyed merely by quoting the words of one of the paragraphs in the definition. On this approach, an employees' notice that adopted the wording of para (c) of the definition would cover a total ban on a particular work activity, a partial ban or limitation or a ban on the use of particular equipment. It would tell the employer very little. The converse comment may be made about an employer's notice under s170MU(3) that referred merely to a "lockout".
86 Another reason for rejecting North J's approach is that it places a premium on legalism. Framers of notices would need to undertake a careful analysis of the definition of "industrial action", in the way North J did, in order to identify the paragraph which best fits the contemplated activity. Bearing in mind that notices will often, perhaps ordinarily, be prepared by non-lawyers acting without legal advice, it is unlikely Parliament intended that result.
87 We think s170MO(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 shut down. If warned in advance of a ban that might affect the continued operation of that plant, the employer might choose a controlled shut down 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 lockout 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.
88 It will be apparent we think it necessary, and sufficient, for parties to describe the intended action in ordinary industrial English; for example, "an indefinite strike of all employees", "a lockout of all employees employed in the AB fabrication plant", "a ban on overtime", "a ban of the use of MN equipment", "rolling stoppages throughout the mine", "a ban on the servicing of delivery vehicles".
89 If we are correct in this approach, it follows that a notice that refers only to "bans and rolling stoppages", without any indication of the nature of the bans or the location of the rolling stoppages, does not adequately disclose "the nature of the intended action". It certainly does not convey to a reader an intention to mount a picket at which truck drivers will be hindered in entering the employer's premises. (emphasis added)
[18] The ratio decedendi of Davids Distribution in relation to the validity of notices of industrial action is to he found in these emphasised passages. In particular, it is necessary and sufficient for a party intending to take industrial action to describe the intended action in ordinary industrial English. It may be noted that one of the descriptions expressly approved by the majority as sufficient was “an indefinite strike of all employees”. When action involving all employees is being notified it is unnecessary to specify each location at which the action will be taken because the description conveys that action is being notified in respect of all of the employer’s work locations.
[19] I regard it as obvious that the forms of industrial action authorised by the ballot in this case comprehend such action undertaken on a national basis. That is, there is nothing to prevent the CEPU from notifying industrial action in the form of “an unlimited number of indefinite stoppages” on a nationwide basis, that is, at all available Telstra worksites. On a fair reading of the current notices, that is precisely the type of action that has been notified. On the approach in Davids Distribution, such a notice discloses the “the nature of the intended action and the day when it will begin” and therefore complies with the requirement in s.414(6) of the FW Act. It is unnecessary to specifically identify the worksites where the action will occur because the intended action relates to every worksite.
[20] Of course, one possibility is that a union issues such notices in bad faith: intending to take industrial action at a small number of sites and issuing a notice for a nationwide strike (and therefore which does not need to identify specific worksites) with the sole intent of making it more difficult for Telstra to take defensive measures. In such circumstances a notice issued in the terms of the current notices could not be said to specify the “intended action” as required by s.414. Mr Reitano submitted that it was not open to me on the evidence led by Telstra to infer such bad faith on the part of the CEPU. I agree. The CEPU led no evidence. The statement of Mr Frank Gertz, tendered for Telstra, describes industrial action in some detail at one particular site and continues:
“26. Various other action occurred around Australia on 2 December and 3 December 2009, however not at every site or indeed, in every State or Territory.”
[21] The extent of “the various other action [that] “occurred around Australia” is not quantified. The proportion of sites at which action did not occur is not clear. Several CEPU bulletins urging industrial action were annexed to Mr Gertz’s statement (although it may be noted that they are clearly far from a complete collection of CEPU communications to members in relation to industrial action urging members to take industrial action of the sort specified in the notice). One of those bulletins makes it clear that employees in individual work areas may reasonably decide not to take action. Another refers to a “National Stoppage”. Telstra called no direct evidence on the CEPU’s motives in casting the notices in the way that they were. On the evidence I find myself entirely unable to conclude that the description of the industrial action in each of the notices was disingenuous. Further, and significantly, Mr Reitano’s submission that it was not open to me on the evidence to draw an adverse inference of the sort referred to above was not contradicted by Mr Gardiner for Telstra.
[22] Moreover, Mr Reitano for the CEPU correctly noted that there are many explanations other than a ruse or bad faith as to why a notification of national action may nevertheless result in action occurring at only some sites, and even a small number of sites. Of course, there is no obligation employees who are entitled to take industrial action, to in fact take it once a notice has been given. For example where the number of employees at a particular worksite who wish to take action are only a small proportion of workforce at that site, that circumstance may lead the small group who wish to take action to conclude that taking such action may leave them vulnerable to at least subtle adverse consequences (say, a lower performance rating against general criteria that call for subjective managerial assessment) and so decide against taking action. In this way an entire site may be free of industrial action notwithstanding the union calling for a national stoppage. At some sites a large number of employees may be on extant AWAs and therefore not able to take industrial action. Action may not be practicable at such; Mr Reitano referred to other examples.
[23] On the material before me, I am satisfied that the CEPU intends to take industrial action in the form of “an unlimited number of indefinite stoppages” between 12.01am and 11.59pm on a specified day on a nationwide basis. The Notices are expressed in “plain industrial English” and convey that intention sufficiently.” There is no need for all sites to be listed if, as here, the notice makes it clear that industrial action is being notified in respect of all sites.
[24] I should note that I do not see the decision of Von Dousa J in Adelaide Brighton Cement v Australian Workers Union 4 as assisting Telstra. The vice in the notices in that case was that they did not allow the employer to know “from day-to-day” when 24 hours stoppages would occur. That problem does not arise in this case. In this case the notified action is confined to a single day.
[25] Telstra’s second major contention related to the way in which some of the industrial action was being taken. It not contested that on an earlier occasion when action was notified using the same language as the Notices employees at particular sites stopped work, returned to work later in the day and then later still, stopped work again. Telstra submitted that this did not come within the description of the relevant species of action approved in the ballot (“an unlimited number of indefinite stoppages”). I disagree. In some contexts the expression “indefinite stoppage” may be used to describe a stoppage that will continue until there is compromise by the employer. However, in the context of the expression “an unlimited number of indefinite stoppages”, the fact that there may be an unlimited number of stoppages necessarily connotes that an “indefinite stoppage” is a stoppage that is “indefinite” from the perspective of the employer because its precise duration is undecided or undisclosed at the time it commences. An “indefinite” stoppage may be very short or very long. For these reasons, in my view there can be more than one “indefinite stoppage” in a single day and the action of which Telstra complains is within the ambit of the industrial action notified by the CEPU.
[26] The other main contention advanced by Telstra was that compliance with the requirement in s.414(6) obliged the CEPU to notify the time at which an “indefinite stoppage” was to start and that, without specification of the precise time, the Notices do not satisfy the requirement in s.414(6) in respect of the action being taken by the CEPU and its members in purported reliance on the Notices. It seems to me that the “nature” of an indefinite stoppage can be proper specified without nominating the precise time at which the stoppage will start: it is sufficient for Telstra to know, consistent with the statutory purpose of such notice, that it can expect on the nominated day an indefinite number of stoppages at any site.
[27] In summary, I am satisfied that the Notices adequately specify the nature of the action being undertaken by the CEPU and that the requirement in s.414(6) has been met. It follows that Telstra’s application for an order under s.418 of the FW Act must be refused.
VICE PRESIDENT
Appearances:
Mr R. Reitano of Counsel for CEPU (Applicant).
Mr C Gardner, Solicitor, Freehills, for Telstra Corporation Limited (Respondent).
Hearing details:
2009.
Melbourne;
December 4.
1 Country Fire Authority v United Firefighters’ Union of Australia (PR973841) Watson VP, Lacy SDP and Hingley C, 8
September 2006 at PN [31].
2 [1999] 91 FCR 463; (1999) 91 IR 198.
3 Burchett J expressed general agreement with Wilcox and Cooper other than in respect of a particular matter that is not relevant to this aspect of the case which caused his Honour to dissent.
4 (2002) 113 IR104, esp at PN [22].
Printed by authority of the Commonwealth Government Printer
<Price code C, PR991648>
8
1
0