Tooheys Pty Limited v Liquor, Hospitality and Miscellaneous Union

[2010] FWA 8922

[2010] FWA 8922

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.418—Industrial action

Tooheys Pty Limited
v
Liquor, Hospitality and Miscellaneous Union
(C2010/5525)

COMMISSIONER THATCHER SYDNEY, 20 NOVEMBER 2010

Industrial action - s.414 notice requirements.

[1] Tooheys Pty Limited (Tooheys) has made application under s.418 of the Fair Work Act 2009 (the Act) to Fair Work Australia (FWA) for an order that industrial action foreshadowed by the Liquor, Hospitality and Miscellaneous Union (LHMU) at Tooheys’ brewery at Lidcombe through the service of notices purportedly complying with s.414 of the Act, stop, not occur and not be organised.

[2] At the conclusion of the hearing of the application on 17 November 2010 I reserved my decision. Later that day, in the course of considering my decision I formed the preliminary view that it appeared that certain of the impending industrial action would not be protected industrial action. Given that the action was planned to commence on 18 November 2010, and I was sitting in Cowra on 18 and 19 November 2010, pursuant to s.589 of the Act, I made an interim decision to make an interim order pursuant to s.420(2) of the Act. The interim order became operative from midnight on 17 November 2010 and remains in force until 3.00am on 23 November 2010, unless further order is made by FWA or until determination of the application.

[3] This decision is my determination of the s.418 application.

[4] The background to the application is that on 6 October 2010 I ordered that the LHMU hold a protected action ballot of the employees. 1 The questions put to the voters in the ballot were:

“In support of reaching an Enterprise Agreement with Tooheys Pty Limited, do you authorise protected industrial action against your employer, separately, concurrently and/or consecutively, in the form of:

Question 1

An unlimited number of strikes for a period of 1 week YES NO

Question 2

An unlimited number of strikes for a period of 72 hours YES NO

Question 3

An unlimited number of stoppages of work for periods of 48 hours YES NO

Question 4

An unlimited number of strikes for periods of 24 hours YES NO

Question 5

An unlimited number of strikes for periods of 8 hours YES NO

Question 6

An unlimited number of strikes for periods of 4 hours YES NO

Question 7

An unlimited number of strikes for periods of 2 hours YES NO

Question 8

An unlimited number of strikes for periods of 1 hour YES NO

Question 9

Indefinite or periodic bans on overtime YES NO

Question 10

Indefinite strikes YES NO

Question 11

Indefinite or periodic bans on the working of a 7 day roster pattern, meaning that the 5 day roster pattern that was in place immediately before the 7 day roster pattern was introduced, be worked” YES NO

[5] The protected action ballot resulted in a vote in favour of approving the industrial action referred to in each of the questions.

[6] On 12 November 2010 the LHMU served on Tooheys a notice of intention to take industrial action (the notice of 12 November 2010) in the following terms:

“Please be advised that in accordance with Section 414, Fair Work Act 2009, the Liquor, Hospitality and Miscellaneous Union, Liquor & Hospitality Division, NSW Branch, being a bargaining representative of employees who will be covered by the proposed enterprise agreement, gives notice that employee claim action will be commenced as follows;

Date of commencement: 18 November 2010

Nature of action:- An indefinite ban on the working of a 7 day roster pattern, and the observance of the 5 day roster pattern that was in place immediately before the 7 day roster pattern was introduced.

- An indefinite ban on the working of overtime

- An unlimited number of strikes for periods of 1 hour

- An unlimited number of strikes for periods of 24 hours”

[7] At 5.53pm on 16 November 2010 the LHMU emailed Mr Mark Toomey, Operations Director, Tooheys (the email of 16 November 2010) in the following terms:

“Please find below supplementary information as to the 12 November 2010 Notice of Employee Claim Action as per Section 414, Fair Work Act 2009.

The 1 hour strikes referred to in the notice shall be observed as follows:

18 November 2010

LHMU members employed at Tooheys Pty Ltd at 29 Nyrang Street Lidcombe shall strike for periods of 1 hr from 7am to 8am, 10am to 11am, 3pm to 4pm, 6pm to 7pm, 11pm to midnight, and 2am to 3am

19 November 2010

LHMU members employed at Tooheys Pty Ltd at 29 Nyrang Street Lidcombe shall strike for periods of 1 hr from 7am to 8am, 10am to 11am, 3pm to 4pm, 6pm to 7pm, 11pm to midnight, and 2am to 3am

Further advice as to employee claim action beyond 19 November 2010, will be forthcoming.”

[8] On 16 November 2010 the LHMU served on Tooheys a notice of intention to take industrial action (the notice of 16 November 2010) in the following terms:

“Please be advised that in accordance with Section 414, Fair Work Act 2009, the Liquor, Hospitality and Miscellaneous Union, Liquor & Hospitality Division, NSW Branch, being a bargaining representative of employees who will be covered by the proposed enterprise agreement, gives notice that employee claim action will be commenced as follows;

Date of commencement: 22 November 2010

Nature of action:- LHMU members employed at Tooheys Pty Ltd at 29 Nyrang Street Lidcombe shall strike for periods of 1 hr from 7am to 8am, 10am to 11am, 3pm to 4pm, 6pm to 7pm, 11pm to midnight, and 2am to 3am”

[9] During the hearing, the LHMU made it clear that the notice of 12 November 2010 has not been withdrawn or modified by the email or notice of 16 November 2010 and is active.

[10] Tooheys’ case is that notices in these forms do not comply with s.414(6) of the Act. For that reason, any industrial action taken pursuant to the notices is not protected industrial action and should be dealt with by an order pursuant to s.418, which provides that FWA must make an order that industrial action stop or not occur or not be organised if it is satisfied that the industrial action is not, or would not be, protected industrial action.

[11] Pursuant to s.413(4) of the Act, industrial action is not protected action unless the notice requirements in s.414 have been met. Section 414(1) provides that a bargaining representative must give written notice of employee claim action, s.414(2) provides that the notice must be at least three working days and s.414(6) provides that the notice must specify the nature of the action and the day on which it will start. Specifically, s.414 relevantly prescribes:

“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 requirements - content

(6) A notice given under this section must specify the nature of the action and the day on which it will start.”

[12] Tooheys submissions in support of its application may be summarised as:

(a) It has been held under the predecessors to s.414 that notices of industrial action must be capable of shedding light on the nature of the action to be taken and enable the affected employer to take appropriate defensive action. The case law to which Tooheys refers is:

• Telstra Corporation Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, 2

• David’s Distribution Pty Ltd v National Union of Workers (David’s Distribution); 3

• Adelaide Brighton Cement v Australian Workers Union & Ors; 4

• CSBP Ltd v Liquor, Hospitality and Miscellaneous Union; 5

• Alcoa of Australia Limited v Australian Workers Union; 6

(b) In considering the adequacy of a notice, it is necessary to have regard for the relevant context in which it is intended to operate. At the brewery stoppages of work involve significant safety consequences. In addition to avoiding damage to equipment and product, steps must be followed for shutting down processes being undertaken. Tooheys tendered a statement of Mr Toomey, which referred to the safety and financial implications of stoppages of work, the contents of which were not contested by the LHMU; 7

(c) The notice of 12 November 2010 is lacking in content or specificity and leaves Tooheys guessing which category of conduct is to commence on 18 November 2010, since not all conduct can occur at the same time;

(d) In relation to the unlimited number of 1 hour and 24 hour strikes referred to in the notice of 12 November 2010, Tooheys is left guessing when the conduct is to be taken and whether all or only some of the employees will be involved;

(e) The email of 16 November 2010 cannot be regarded as notice given on 12 November 2010 and there is no provision for retrospectivity in the Act. Alternatively, if it is regarded as a new notice, it does not give at least 3 days notice of the industrial action and it still leaves open all of the uncertainty about an unlimited number of strikes for periods of 24 hours;

(f) The notice of 16 November 2010 cannot be read in isolation from the notice of 12 November 2010 and still leaves open all of the uncertainty about an unlimited number of strikes for periods of 24 hours.

[13] The LHMU submissions in opposition to the application may be summarised as:

(a) The LHMU notices have complied with the wording of s.414(6) which only requires that on and from a specified date the specified industrial action is being contemplated. The LMU has given Tooheys the requisite detail and information that allows it to know what will occur;

(b) There is no uncertainty in the notice of 12 November 2010 which indicates that the categories of industrial action therein can occur on any day at any time on or after 18 November 2010, either concurrently or consecutively. In respect of the 1 hour and 24 hour strikes, the word ‘unlimited’ means there is no limit on the number of strikes of those durations. For example, a 24 hour strike could occur by 24 consecutive strikes of one hour duration or 1 strike of 24 hours duration. Further, similar to the practice with sick leave, prior to the expiration of a strike of 1 or 24 hours duration, a decision can be made by the union to continue with a further strike or to supplement action that has already been notified. In any event, Tooheys has not contacted the LHMU to seek clarification of any purported uncertainty;

(c) Section 414 does not allow an employer to dictate what information it requires to respond to intended industrial action. For example, s.414(6) does not require the names of all of the employees who will participate in the action. Section 414(6) is simply a requirement that adequate information be given to the employer to allow it to have some ability to react;

(d) Section 414(6) includes the word ‘start’ and does not require a notice to specify the period of operation of the action or when the action will finish;

(e) Given that the notice of 12 November 2010 provided adequate notice of the commencement of the categories of industrial action, the email of 16 November 2010 cannot be regarded as a fresh notice. As a courtesy the LHMU email was simply advising Tooheys of the hours of the 1 hour strikes in respect of which Tooheys was already aware by the notice of 12 November 2010;

(f) Tooheys’ Lidcome brewery is a single site. Because of the nature of the operation, Tooheys is able to prepare for the categories of industrial action referred to in each of the LHMU notices and its email;

(g) The notice of 16 November 2010 is a stand alone notice. It gives specific times and the period of notice is at least 3 working days. The action in the notice is protected industrial action.

[14] In respect of the subclause of the Fair Work Bill 2008 that was to become s.414(6) the Act, the Explanatory Memorandum to the Fair Work Bill 2008 stated:

“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.” (emphasis added)

[15] In Telstra Corporation Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, 8 (Telstra) the Full Bench considered whether several notices of industrial action that the CEPU had given Telstra complied with s.414(6). Whilst the notices differed from those in the current case, the action included ‘an unlimited number of indefinite stoppages of work’ on nominated days.

[16] In its decision the Full Bench stated:

“[12] ... 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. [Footnote: [1999] 91 FCR 463 at para 87 per Wilcox and Cooper JJ with whom Burchett J agreed on this aspect.] ’

[14] ... Whether it (a notice of intended industrial action)(sic) does comply (with the requirement in s.414(6))(sic) will depend on the context in which it appears in the notice and the surrounding circumstances. ...

...

[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.”

[17] In Re: Boral Resources (NSW) Pty Ltd 9 the Full Bench, in the course of considering whether the failure of a union to take the industrial action specified in a s.414 notice, amounted to unprotected industrial action stated:

“[14] There is no doubt that the notice requirements in s. 414 are an important part of the scheme of the Act relating to industrial action and provide the employer with an opportunity to take defensive action as may be appropriate to protect its business and custom. Part of the consideration of what defensive action to take will include an assessment of the likelihood of the industrial action being taken. This might cover the possibility of early agreement being reached either as to issues in dispute or the process of addressing those issues as well as the possibility of some or all employees deciding for whatever reasons not to take part in the action. The assessment might also involve consideration of past practice and experience between the parties in relation to bargaining and the taking of industrial action. ...”

[18] In Alcoa of Australia Limited v Australian Workers Union 10(Alcoa) Barker, J of the Federal Court of Australia in considering the provisions of s.414 stated:

“[27] I accept that in the light of David’s Distribution case the reason why a notice issued under s.414(6) of the FW Act must specify the ‘nature of the action’ is so that its target may organise itself to take appropriate defensive action. ...

[33] ... The requirement to specify the ‘nature of the action’ and then separately ‘the day it will start’, do not, of themselves, suggest to me that it is also necessary to particularise the commencement and finishing time of the proposed action in a notice. For the Court to supply this degree of particularisation might be seen to supplant the role of the legislature in prescribing industrial behaviour, a matter of continuous contention over the course of this country’s history since Federation in 1901.

[34] Nonetheless, along with Goldgerg J and Gilmour J, I accept that there may well be an argument, particularly in the circumstances of a particular case, that in specifying the ‘nature of the action’, having regard to a particular action, it may in some cases be necessary to say something about the commencement and/or the conclusion times of the industrial action. But it is not a requirement that, to my mind, immediately leaps to the eye from the text of s.414(6).”

[19] I have given due consideration to the industrial context and the circumstances in which the intended industrial action will operate, including and in particular the circumstances of the Lidcombe brewery as referred to in the uncontested statement of Mr Toomey.

[20] In doing so, I agree with the sentiments of Barker J in Alcoa that the fact that an employer may suffer a loss of profits and its operation and staff may be inconvenienced is no reason of itself to find that a notice specify the actual start time and the actual finish time for industrial action. Generally speaking, the reason for industrial action is to cause a degree of inconvenience and expense to the employer as a legitimate bargaining tool. 11

[21] I accept the LHMU submission that I should determine whether or not its notices comply with s.414(6) based on the wording of s.414. However in doing so I cannot ignore the case law that has evolved since the decision in David’s Distribution. If the Legislature had intended that such case law be modified, such an intention would have been referred to in the Explanatory Memorandum to the Fair Work Bill 2008, rather than it stating that s.414(6) would ‘substantially replicate the requirements in s.441(6) of the WR Act’.

[22] After considering all of the material before me, I am satisfied that the notice of 12 November 2010 insofar as it applies to an unlimited number of strikes for periods of 1 hour and 24 hours does not meet the requirements of s.414(6) because it does no more than indicate that, on or after 18 November 2010, there will be an indeterminate number of strikes of those durations and, because the strikes can occur concurrently, in effect, there can be an indeterminate number of strikes of indeterminate duration.

[23] As indicated in the Telstra decision, it is implicit that the description of the action contained in the notice should be sufficient to put the employer in a position to make reasonable preparations to deal with the effect of the industrial action. In order to prepare for all eventualities contemplated by the notice in respect of ‘an unlimited number of strikes for periods of 1 hour’, Tooheys would have to plan on the basis that, without further notice, at any time after 18 November 2010 LHMU members would be on strike for any number of 1 hour strikes, which would occur intermittently or concurrently and with as little as less than 1 minutes notice. The same can be said for ‘an unlimited number of strikes for periods of 24 hours’.

[24] It follows that the unlimited number of 1 hour and 24 hour strikes referred to in the notice of 12 November 2010 would not be protected industrial action.

[25] In my opinion, it is wrong to characterise the email of 16 November 2010 as supplementary information to the notice of 12 November 2010. Tooheys receipt of the email was the first time that it learned of when 1 hour strikes would occur on 18 and 19 November 2010 and put it in a position to make reasonable preparations to deal with the effect of the industrial action. It is a new notice with sufficient specificity as to the nature and timing of the action to comply with s.414(6). However, it does not meet the minimum requirement to provide 3 working days notice of the action as prescribed by s.414(2). Therefore the 1 hour strikes in the email would not be protected industrial action.

[26] The contents of the notice of 12 November 2010, insofar as it applies to the indefinite bans which commence on 18 November 2010 are sufficiently specific as to the nature and timing of the action to meet the requirements of s.414(6). Such action would be protected industrial action.

[27] Similarly, the contents of the notice of 16 November 2010, do meet the requirements of s.414(6). Such action would be protected industrial action.

[28] Section 418(1) prescribes:

“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.”

[29] All that is necessary to give the Commission jurisdiction under s.418 is the appearance to FWA of the conditions prescribed therein. 12 An appearance requires the existence of a state of mind that would be reached by a reasonable person. FWA is required to form a view after taking an honest view of the facts which can reasonably be entertained. FWA would not arrive at such a view unless there is a causative link between the material available to it and the formation of such a view.13

[30] It is not contested that the industrial action referred to in the notices of 12 and 16 November 2010 and the email of 16 November 2010 are pending or probable and are being organised.

Determination

[31] After considering all of the material before me I am satisfied that the jurisdictional preconditions in s.418(1) had been met in respect of the impeding or probable 1 hour and 24 hour strikes referred to in the LHMU notice of 12 November 2010 and the impending or probable industrial action referred to in the LHMU email of 16 November 2010 because such action would not be protected industrial action.

[32] Therefore I am required to make an order under that section.

[33] In exercising my discretion as to the terms of the order I make, I have considered what would have ‘a rational or logical tendency to stop or prevent the industrial action and/or its organisation’. 14

[34] I have limited the orders to the industrial action contained in the notices and email in respect of which the requirements of s.414 have not been met, namely the unlimited number of 1 hour and 24 hour strikes referred to in the notice of 12 November 2010 and the 1 hour strikes referred to in the email of 16 November 2010. The orders do not prohibit the industrial action referred to in the notice of 16 November 2010 as such action complies with s.414 and would be protected industrial action.

[35] In doing so I have not accepted Tooheys’ submission that, to avoid having to make further s.418 applications should the LHMU give further notices of the other categories of unlimited industrial action that have been authorised by the protected action ballot that do not comply with s.414(6), the order should specify prohibited unprotected industrial action in broad terms. In adopting a more narrow approach I make it clear that my order will not apply to any industrial action authorised by the protected action ballot for which the notice requirements set out in s.414 have been met (and that meets the other requirements of s.408 (protected industrial action) of the Act).

[36] Further, I have not accepted Tooheys’ submission that the order be operative for a period of 6 months. Given that the operation of the order can readily be avoided in respect of any of the industrial action that has been authorised by the protected action ballot if the notice requirements of s.414 are met, I have limited the operation of the order to a period of approximately 3 weeks. There is no indication that, in the light of this decision, the LHMU will continue to press those categories of action in its notice of 12 November 2010 that I consider do not satisfy the notice requirements set out in s.414, or give a further similar written notice in respect of other unlimited industrial action that has been authorised by the protected action ballot.

[37] I determine the application by:

(a) affirming my interim decision and the interim order dated 17 November 2010, the effect of which is to prohibit the unlimited 1 hour and 24 hour strikes referred to in the notice of 12 November 2010 and the 1 hour strikes referred to in the email of 16 November 2010 but not to stop (or stop the organisation of) the 1 hour strikes to occur on 22 and 23 November 2010 as specified in the notice of 16 November 2010. I order accordingly;

(b) making an order pursuant to s.418(1) in a form similar to the interim order. That is, the order is that the unlimited 1 hour and 24 hour strikes referred to in the notice of 12 November 2010 stop, not occur and not be organised. The order will not affect industrial action authorised by the protected action ballot in respect of which the notice requirements set out in s.414 have been met.

[38] The s.418 order will have a stop period commencing on the expiration of the interim order, namely 3.00am on 23 November 2010 and expiring at 5.00pm on Monday 13 December 2010.

[39] That order will not affect industrial action that is protected industrial action, including action in respect of which the notice requirements of s.414 have been met, such as the 1 hour strikes that are the subject of the notice of 16 November 2010.

BY THE COMMISSION:

COMMISSIONER

Appearances:

Mr H Dixon, senior counsel for Tooheys Pty Limited

Mr C Acev for Liquor, Hospitality and Miscellaneous Union

Hearing details:

2010

Sydney

November 17

 1   PR502460.

 2   [2009] FWAFB 1698, 15 December 2009, per Giudice P, Acton SDP, Whelan C.

 3 (1999) 165 ALR 550 at 578 [87]-[89].

 4 (2002) 113 IR 104 at [22].

 5 (2007) 162 IR 81 99 at 100 [93] and [94].

 6 [2010] FCA 278.

 7   PN182.

 8   Op cit.

 9   [2010] FWAFB 1771, 31 March 2010, per Boulton SDP, Hamberger SDP, Deegan C.

 10   Op cit.

 11   Ibid, at para 35.

 12   Re Transport Workers' Union of New South Wales, PR973479, 31 July 2006, per Giudice J, President, Hamilton DP and Hingley C at para 9.

 13   Refer to the guidance in relation to another jurisdiction in Australian Securities Commission v Deloitte Touche Tohmatsu (formerly known as Deloitte Haskins and Sells and Deloitte Ross Tohmatsu), 28 August 1996, 138 ALR 165, per Beaumont, Drummond and Sundberg JJ.

 14   Re Transport Workers' Union of New South Wales, op cit, at para 9.

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