Transport Workers' Union of Australia v Broadspectrum (Australia) Pty Ltd
[2019] FWCFB 663
•1 MARCH 2019
| [2019] FWCFB 663 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Transport Workers’ Union of Australia
v
Broadspectrum (Australia) Pty Ltd
(C2018/6434)
VICE PRESIDENT HATCHER | SYDNEY, 1 MARCH 2019 |
Appeal against order PR701738 of Deputy President Beaumont at Perth on 25 October 2018 in matter number C2018/5963.
Introduction and background
[1] The Transport Workers’ Union of Australia (TWU) has lodged an appeal, for which permission is required, against a decision made by Deputy President Beaumont on 25 October 2018 to issue an order 1 (Order) pursuant to s 418 of the Fair Work Act 2009 (FW Act). The Order required the TWU not to organise, and its members who were employed by Broadspectrum (Australia) Pty Ltd (Broadspectrum) not to engage in industrial action in the form of a ban, limitation or restriction on the performance of transport work, hospital sit work, court security work, Fiona Stanley Secure Unit work and administrative paperwork. The Order had a period of operation from 8.30pm on 25 October 2018 until 5.00pm on 30 November 2018. The Deputy President issued reasons for her decision to make the Order on 31 October 20182 (Reasons). The TWU contends in its appeal that the Deputy President had no power under s 418 to make the Order because the industrial action to which the order applied was, under the FW Act, protected industrial action.
[2] The factual background to this matter is as follows. Since early 2018, Broadspectrum and its employees engaged in prisoner transport and court security work in Western Australia have been engaged in negotiations for an enterprise agreement. The TWU is the bargaining representative for some or all of the employees and has been engaged in the negotiations on their behalf. On 13 June 2018, on the application of the TWU, the Commission made a protected action ballot order, 3 and in the subsequent ballot the TWU’s members employed by Broadspectrum approved the taking of the following forms of industrial action:
(1) An unlimited number of indefinite bans on working of overtime.
(2) An unlimited number of indefinite bans on the completion of paperwork.
(3) An unlimited number of indefinite bans on wearing of uniform shirts.
(4) An unlimited number of periods of “work-to-rule”.
(5) An unlimited number of bans on the performance of higher duties.
(6) An unlimited number of bans on the performance of work for 4 hours.
(7) An unlimited number of bans on the performance of work for 8 hours.
(8) An unlimited number of bans on the performance of work for 24 hours.
(9) An unlimited number of bans on the performance of work for 48 hours.
[3] On 6 August 2018, the Deputy President made an order pursuant to s 459(1)(d) of the FW Act to extend the period in which the industrial action was authorised by the protected action ballot by 30 days, until 14 September 2018 (extension order). On 7 August 2018 the TWU gave Broadspectrum notice that industrial action would be taken in the form of indefinite bans on working overtime, wearing uniform shirts and performing higher duties – that is, the first, third and fifth forms of industrial action authorised by the protected action ballot.
[4] On 10 August 2018 Broadspectrum applied to the Commission for an order pursuant to s 424 of the FW Act to suspend the taking of the industrial action identified in the TWU’s notice of 7 August 2018. The Deputy President heard the application that day and made a decision to grant the application 4 (suspension decision). The order made by the Deputy President on 10 August 20185 (suspension order) suspended, until 6.00pm on 13 October 2018, industrial action in the form of indefinite bans on working overtime, wearing uniform shirts and performing higher duties. The Deputy President issued reasons for her decision to make the suspension order on 22 August 20186 (suspension reasons). The final paragraph of the suspension reasons stated:
“[115] It was submitted that on a narrow reading of s 424 I would suspend only so much of the protected industrial action that has precipitated the threatened adverse effects on life, personal safety or health, or welfare. A broad reading would encompass all protected industrial action. The broader view has been adopted by the Full Bench in NTEU v University of South Australia [(2010) 194 IR 30] and in Ambulance Victoria v LHMU [(2009) 187 IR 119]. I was satisfied that the protected industrial action set out in the Notice should be suspended and that suspension would be for a period of 2 months in light of the history of negotiations to date.”
[5] There was no appeal lodged against the suspension decision or suspension order.
[6] On 11 October 2018, the TWU gave notice of industrial action in the form of paperwork bans (the second form of industrial action authorised by the protected action ballot) commencing on 17 October 2018 (which was after the expiry of the suspension order on 13 October 2018). On 22 October 2018 the TWU gave notice of industrial action in the form of a ban on the performance of work for 4 hours (the sixth form of industrial action authorised by the protected action ballot) on 26 October 2018 in relation to transport work, hospital sit work, court security work and Fiona Stanley Secure Unit work. In response, on 24 October 2018 Broadspectrum made an application to the Commission that an order be made pursuant to s 418 of the FW Act that the two forms of industrial action the subject of the 11 and 22 October 2018 notices stop, not occur and not be organised or, alternatively, that this industrial action be suspended or terminated pursuant to s 424. It was Broadspectrum’s application pursuant to s 418 which was the subject of the Order made on 25 October 2018 and the subsequent Reasons.
The Order and the Reasons
[7] The operative part of the Order was contained in clause 4 as follows:
4.1 On and from the time specified in paragraph 6.1 of this Order, the TWU must:
(a) not organise, aid, abet, direct, procure, induce, advise, authorise or encourage any Employees to engage in the Industrial Action; and
(b) stop organising, aiding, abetting, directing, procuring, inducing, advising, authorising or encouraging any Employees to engage in the Industrial Action.
4.2 On and from the time specified in paragraph 6.1 of this Order, the Employees must:
(a) not commence, continue, engage in, or threaten to engage in, any Industrial Action of the kind described in 3.1(a); and
(b) stop engaging in—and not engage in any further—any Industrial Action of the kind described in 3.1(b).
[8] The expression “Industrial Action” in clause 4 was defined in 3.1 of the Order, relevantly, as follows:
(a) a ban, limitation or restriction on the performance of any of the following, namely:
1. transport work;
2. hospital sit work;
3. court security work: and
4. Fiona Stanley Secure Unit work,
by Employees, or on the acceptance of or offering for such work by Employees; and
(b) a ban, limitation or restriction on the performance by Employees of tasks consisting of or involving the completion of administrative paperwork …
[9] The above definition was subject to certain exceptions which are not presently relevant. Clause 6 of the Order provided that it came into effect at 8.30pm on 25 October 2018, and the requirement to stop the specified industrial action was to remain in effect until 30 November 2018.
[10] In her Reasons, the Deputy President stated that the Order had been made because she was satisfied that the industrial action the subject of the notices of 11 and 22 October 2018 was not protected industrial action. 7 This was because the period during which protected industrial action authorised by the protected action ballot could be taken in accordance with s 459(1)(d) of the FW Act and the extension order ended on 14 September 2018.8 The Deputy President accepted that, where an order for suspension of industrial action had been made, s 429 operates to excise from the deadline for the taking of protected action the period of suspension under the order.9 However the Deputy President found that s 429 only applied to the forms of industrial action the subject of the suspension order, and not to any other forms of industrial action authorised by the protected action ballot, by reason of the precondition in s 429(1)(a).10 Consequently, because only the first, third and fifth forms of industrial action authorised by the protected action ballot were the subject of the suspension order, it was only to these that s 429 had application.11 The other forms of industrial action, including the second and sixth forms the subject of the notices of 11 and 22 October 2018 respectively, could not be protected because the deadline of 14 September 2018 had passed.
[11] In reaching this conclusion the Deputy President rejected an argument advanced by the TWU, based on the Full Bench decision in NTEU v University of South Australia, 12 that any order made pursuant to s 424 had the effect of suspending all industrial action authorised by the relevant protected action ballot, not just the industrial action which has been found pursuant to s 424 to threaten to endanger the life, personal safety, health or welfare of the population or part of it or cause significant damage to the Australian economy or an important part of it and, accordingly, that s 429 operated to extend the time to take all the types of industrial action authorised by the protected action ballot. The Deputy President concluded that NTEU v University of South Australia had been overtaken by the Federal Court Full Court decision in Australian and International Pilots Association v Fair Work Australia,13 in which it had been determined authoritatively that a s 424 order could only operate to suspend industrial action the subject of a finding concerning endangerment to life, personal safety, health or welfare or economic damage.14 The Deputy President expressed her satisfaction that non-protected industrial action was happening and impending, and made the Order on that basis.15 Having made the Order, the Deputy President dismissed Broadspectrum’s alternative application for a s 424 order.16
Appeal submissions
[12] The TWU contended that the Deputy President erred in concluding that the industrial action the subject of the Order was not protected on two grounds:
(1) The suspension order had the effect of suspending the taking of all the forms of industrial action authorised by the protected action ballot, not just the first, third and fifth the subject of findings pursuant to s 424(1). The Deputy President erred in concluding otherwise.
(2) The Deputy President erred in concluding that, after a period of suspension, employees can pursuant to s 429 only take protected industrial action without another protected action ballot if it is of the kind specifically referred in the suspension order.
[13] In respect of the first proposition, the TWU submitted that the Deputy President was bound to follow NTEU v University of South Australia, and that the passages from Australian and International Pilots Association v Fair Work Australia were either obiter dicta or did not deal with the issue. The outcome of the Deputy President’s approach, it was submitted, was that industrial action that had been found to threaten personal safety, health or welfare and/or cause significant economic damage remained protected after a period of suspension pursuant to s 429, but other industrial action which had not been the subject of such a finding would not be protected if the time for taking such action had expired during the suspension period. In relation to the second proposition, the TWU submitted that s 429 had the purpose of extending the time for the taking of protected action by a period equivalent to the period of any suspension, in order to avoid the cost, delay and inconvenience of re-running a protected action ballot which has already authorised certain employee claim action, while retaining a temporal limitation. Accordingly, the pre-condition in s 429(1)(a) for the application of s 429 should be read as referring to a suspension order which applied to some or all of the industrial action authorised by a protected action ballot. On that approach, the time for taking the types of industrial action the subject of the notices of 11 and 22 October 2018 had been extended by operation of s 429, such action remained protected, and there was no power to make an order pursuant to s 418.
[14] The TWU submitted that permission to appeal should be granted because, even though bargaining with Broadspectrum had concluded, its first proposition raised an issue about which there was divided authority, and the second proposition was novel and of general application and public importance.
[15] Broadspectrum submitted in relation to the TWU’s first ground that the Deputy President’s decision concerning the effect of an order under s 424 was consistent with the Federal Court Full Court decision in Australian and International Pilots Association v Fair Work Australia and the Full Bench decision in NTEU v Monash University, 17 and that these decisions had overtaken the earlier Full Bench decision in NTEU v University of South Australia. Additionally, s 413(7) makes it clear that industrial action can lose its protected status even though that particular action has not been suspended or terminated. Therefore, Broadspectrum submitted, the fact that suspension orders made under s 424 only suspend or terminate the particular action that enlivens the criteria in s 424(1) is consistent with the operation of s 413(7).
[16] In relation to the TWU’s second ground, Broadspectrum submitted:
● s 429(1)(a) makes it plain that the section applies only to “the employee claim action” that has been suspended, not to all employee claim action whether suspended or not;
● the use of the definite article indicates a focus upon the specific type of employee claim action that has been suspended, not employee claim action in general arising out of a protected action ballot;
● a construction of s 429 that confines it to the particular action that has been suspended is consistent with the proper construction of s 424;
● the fact that s 413(7) has the effect of preventing the taking of any protected industrial action while a s 424 suspension is in place is not relevant to the interaction between ss 424 and 429 and does not enlarge the operation of either provision;
● the expression “the employee claim action” in s 429(1)(a) should be assigned the same meaning as it bears in s 414 in relation to the notification of the taking of protected action, where it specifically refers to the particular action to be taken;
● this construction of s 429 is consistent with the objectives and purpose of the section, which is to extend the democratic authority of the protected action ballot to the particular forms of action that have been suspended without the need for another ballot once the suspension has lapsed; and
● in any event s 429 did not operate to extend the time for taking industrial action prescribed by s 459(3), so that even if the section applied to all industrial action authorised by the protected action ballot, it did not authorise the taking of the protected action the subject of the notices of 11 and 22 October 2018 without a further protected action ballot because the deadline of 14 September 2018 for taking such action had passed.
Statutory framework
[17] Section 3 of the FW Act provides that the Act’s object “is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians” by way of a number of matters specified in paragraphs (a)-(g) of the section, one of which (in paragraph (f)) is “achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action”.
[18] Part 3-3 of the FW Act establishes a scheme pursuant to which protected industrial action may be taken in relation to bargaining for a proposed enterprise agreement. Protected industrial action is subject to the immunity from legal action which is conferred by s 415. Section 408 provides that protected industrial action takes three forms: employee claim action, employee response action and employer response action. Section 409(1) provides:
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.
[19] Section 409(2) provides that the industrial action constituting employee claim action must be authorised by a protected action ballot. Division 8 of Pt 3-3 sets out the detailed requirements and procedures for the conduct of a protected action ballot by which relevant employees may authorise the taking of specified forms of industrial action. Section 436 provides that the object of Division 8 is 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.
[20] As part of the scheme in Division 8, s 459 identifies the circumstances in which industrial action is taken under the FW Act to be authorised by a protected action ballot. Relevantly, s 459(1)(d) provides that for the action to be authorised, it must commence “during the 30-day period starting on the date of the declaration of the results of the ballot” or, if the Commission has extended that period pursuant to s 459(3), during the extended period. Section 459(3) provides:
(3) The FWC may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:
(a) an applicant for the protected action ballot order applies to the FWC for the period to be extended; and
(b) the period has not previously been extended.
[21] Division 6 of Pt 3-3 provides for the suspension or termination of protected industrial action by the Commission in specified circumstances. Section 424 is one of the provisions in the Division. Section 424(1) provides:
Suspension or termination of protected industrial action
(1) The FWC 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 the FWC 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.
[22] The other provisions in Division 6 which permit or require the suspension of protected action may be summarised as follows:
● s 423 confers upon the Commission a discretion to suspend or terminate protected industrial action which is being engaged in which is causing or threatens to cause significant economic harm to the employer and any of the employees in the case of employee claim action, or to employees in the case of employer or employee response action;
● s 425 requires the Commission to suspend protected industrial action that is being engaged in if the Commission is satisfied that suspension is appropriate taking into account a number of specified matters; and
● s 426 requires the Commission to suspend protected industrial action that is being engaged in if it is adversely affecting the employer or employees and is threatening to cause significant harm to a third party.
[23] It may be noted that, unlike s 424, the above provisions only operate with respect to protected industrial action that is being engaged in.
[24] Where an order for suspension of protected industrial action is made, s 427(2) requires the Commission to specify in the order the period of suspension. Section 428 permits the Commission by further order to extend the period of suspension.
[25] The making of an order pursuant to s 423, s 424, s 425 or s 426 engages s 413(7)(a). Section 413 sets out “common requirements” for any form of industrial action for a proposed enterprise agreement to be protected under the FW Act. One of the requirements, in s 413(7)(a), is that there must not be in operation any order under Div 6 of Pt 3-3 suspending or terminating industrial action in relation to the agreement.
[26] Sections 429 and 430 also form part of Division 6. Section 429 in its entirety provides:
429 Employee claim action without a further protected action ballot after a period of suspension etc.
Application of this section
(1) This section applies in relation to employee claim action for a proposed enterprise agreement if:
(a) an order suspending the employee claim action has been made; and
(b) a protected action ballot authorised the employee claim action:
(i) some or all of which had not been taken before the beginning of the period (the suspension period) of suspension specified in the order; or
(ii) which had not ended before the beginning of the suspension period; or
(iii) beyond the suspension period; and
(c) the suspension period (including any extension under section 428) ends, or the order is revoked before the end of that period.
Further protected action ballot not required to engage in employee claim action
(2) A person may engage in the employee claim action without another protected action ballot.
(3) For the purposes of working out when the employee claim action may be engaged in, the suspension period (including any dates authorised by the protected action ballot as dates on which employee claim action is to be engaged in) must be disregarded.
(4) Nothing in this section authorises employee claim action that is different in type or duration from the employee claim action that was authorised by the protected action ballot.
[27] Section 430(1) provides:
(1) Before a person engages in employee claim action for a proposed enterprise agreement as permitted by subsection 429(2), 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.
[28] Section 430(2) and (3) set out the requirements as to the period and content of the notice.
[29] Where it appears that industrial action that is not protected is occurring or is likely to occur, s 418(1) requires the Commission to make an order stopping this. Section 418(1) provides:
(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.
Consideration
Permission to appeal
[30] We do not consider that permission to appeal should be granted with respect to the TWU’s first ground of appeal. It is correct that a Full Bench of Fair Work Australia in NTEU v University of South Australia determined that a suspension order made pursuant to s 424 of the FW Act operated to suspend the immunity for all industrial action authorised by a protected action ballot, 18 but it may be noted that the Full Bench alternatively concluded that even if a s 424 order operated with respect only to that industrial action which was the subject of findings pursuant to s 424(1)(c) or (d), nonetheless s 413(7) would have the effect of suspending all protected industrial action authorised by a protected action ballot.19 In any event, the decision in NTEU v University of South Australia has been overtaken by the Federal Court Full Court decision in Australian and International Pilots Association v Fair Work Australia.20 In that decision, the Court took the approach that it was only the industrial action that was the subject of a finding of threatened endangerment to life, safety, health or welfare pursuant to s 424(1)(c) or threatened significant economic damage pursuant to s 424(1)(d) that could be the subject of a suspension or termination order under that section. This was most clearly stated in the judgment of Perram J21, but the judgments of Lander J22 and Buchanan J23 are consistent with this. The relevant parts of the decision are not obiter,as submitted by the TWU, but rather directly responsive to a submission advanced before the Court that the s 424 termination order the subject of the proceedings should be quashed. The Full Court went on to determine that once any order was made pursuant to s 424, the effect of s 413(7)(a) was to suspend or terminate all protected industrial action in relation to the proposed enterprise agreement, whether employee claim action or response action or employer response action.24
[31] The approach taken in Australian and International Pilots Association v Fair Work Australia was treated as authoritative and applied by a Full Bench of this Commission in NTEU v Monash University. 25 There the Full Bench said (footnotes omitted):
“[54] As a result of our conclusion that the s.424(1)(c) criterion has been satisfied in a number of respects, we are required by the Act to make an order suspending or terminating protected industrial action. The only protected industrial action to which the required order may apply is that which we have found satisfies the s.424(1)(c) criterion - that is, the Results Ban only. However, once such an order is made, any other industrial action notified by the NTEU ceases to be protected by reason of s.413(7).”
[32] The omitted footnotes cited Australian and International Pilots Association v Fair Work Australia. No proper basis has been identified by the TWU as to why the decision in NTEU v Monash University should be revisited.
[33] However we consider permission to appeal should be granted with respect to the TWU’s second ground. Although the TWU’s appeal may not have practical utility in the sense that bargaining with Broadspectrum has now terminated because the relevant employees have voted to approve a proposed enterprise agreement, the appeal raises a novel question concerning the proper construction of s 429 which has potential general application.
Construction of section 429
[34] The text of s 429 must be construed having regard to its context and purpose. The provision forms part of a statutory scheme which is intended (as s 3(f) makes apparent) to lay down clear rules for the taking of protected industrial action in connection with bargaining for enterprise agreements. Protected industrial action must be authorised by a protected action ballot, and the purpose of the regime established by Div 8 of Pt 3-3 with respect to such ballots is intended, as s 436 discloses, to be fair, simple and democratic. This provides some contextual guidance as to how s 429 should be interpreted.
[35] Section 429 itself forms part of Div 6, which either permits or requires the Commission to suspend or terminate protected industrial action in identified circumstances. Section 424 is one of a number of provisions in the Division (the others being ss 425 and 426) where, if the Commission is satisfied that the requisite circumstances exist, it is required to suspend or terminate the protected industrial action. This is indicative of a legislative intention that protected industrial action in the prescribed circumstances is considered so undesirable that it must cease either permanently or temporarily. This is confirmed by the Explanatory Memorandum for the Fair Work Bill 2009, which states at paragraph 1708:
“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.”
[36] Section 413(7)(a) operates in conjunction with a suspension or termination order made under Div 6 (including one made pursuant to s 424). Its effect, as earlier stated, is to suspend or terminate (as the case may be) all protected industrial action where, relevantly, a s 424 order is in operation. Where the s 424 order, as here, suspends specified types of employee claim action that have been authorised by a protected action ballot, s 413(7) operates to disallow any other type of employee claim action authorised by the protected action ballot as well as employer and employee response action while the suspension order remains in operation. It is apparent that one of the effects of s 413(7)(a), if not its purpose, is to ensure that a suspension or termination order which prevents one party in the bargaining process from engaging in protected industrial action in whole or part does not leave that party exposed to industrial action by the other party. So, for example, if an order is made suspending an employer’s capacity to take employer response action on the basis of a finding that such action threatens to cause significant damage to the Australian economy, the employer is not left at the mercy of the employees continuing to take employee claim action; instead, all parties are prevented from engaging in protected action while the suspension order remains in operation.
[37] Section 429 interlinks with the other provisions in Div 6 which permit or require the suspension of protected industrial action. It is apparent that its purpose is to delineate the capacity for employee claim action to resume after a suspension order has ceased to operate. It does this in two ways. Firstly, s 429(2) provides that employees may engage in employee claim action to which the section applies without the need for another protected action ballot. Secondly, s 429(3) provides that in working out when such protected action may be engaged in, the suspension period must be disregarded.
[38] As earlier stated, Broadspectrum submitted that s 429(3) did not engage with the requirements of s 459(1)(d) concerning the period in which industrial action may be taken to be authorised by a protected action ballot (and thus meet the requirement for employee claim action in s 409(2)). We respectfully disagree. Section 459(1)(d) is clearly concerned with when employee claim action may be taken, and this falls squarely within the language of s 429(3) on its ordinary meaning. Broadspectrum pointed to the words in parentheses in s 429(3) as identifying the purpose and effect of the subsection, but these are prefaced by the word “including” and therefore cannot be regarded as exhaustively defining its scope of operation. Broadspectrum was unable to ascribe any function for the subsection apart from that set out in the parentheses which did not involve engagement with s 459(1)(d).
[39] We consider that s 429(3), by requiring that the suspension period be disregarded, effectively “stops the clock” on the running of the 30 or 60 day period operating pursuant to s 459(1)(d) in relation to employee claim action to which the section applies. It also has the effect, where a protected action ballot authorises employee claim action to which the section applies to occur on particular dates which fall within the suspension period, of allowing those dates to be disregarded so that the employee claim action may still be taken after the suspension period has ended (subject to s 459(1)(d) as otherwise affected by the operation of s 429(3)). It is apparent in this way that s 429(3) operates as a necessary adjunct to s 429(2). There would be no practical purpose in s 429(2) providing that persons may engage in employee claim action without the need for a further protected action ballot if the period during which industrial action remained authorised by the ballot had expired while the suspension order was in operation.
[40] The purpose of s 429 may therefore be characterised as ensuring that the capacity to take employee claim action to which the section applies pursuant to a protected action ballot after a suspension order ceases to operate is not diminished or rendered nugatory by the period of suspension.
[41] The Deputy President determined that, where a s 424 order has been made which suspends some but not all types of industrial action authorised by a protected action ballot order, s 429 only applies to the industrial action directly subject to the order and not to the other authorised types of industrial action. On this approach, the statutory purpose is only effectuated in relation to a s 424 suspension with respect to that employee claim action that is occurring or impending and which is the subject of a finding pursuant to s 424(1)(c) or (d) that it threatens to endanger life or the personal safety, health or welfare of the population or cause significant damage to the economy and thus is suspended by order of the Commission. It would not apply to employee claim action which has been authorised by a protected action ballot, is not occurring or impending at the time a suspension order is made and is not the subject of any finding pursuant to s 424(1)(c) or (d), and is not suspended by an order made pursuant to s 424, but ceases to be protected during the suspension period by operation of s 413(7)(a). In the latter case, if the s 459(1)(d) period expired during the suspension period, there would be no further capacity to take such protected industrial action unless a further protected action ballot was conducted.
[42] That would appear to us to be an outcome unlikely to have been intended by the legislature. There appears to be no sensible policy reason why s 429 would operate to preserve the capacity after a suspension period to take protected industrial action which falls in the first category but not the second. Indeed, it would be somewhat perverse for the capacity to take protected industrial action which would have severe adverse consequences for the population or the economy to be maintained, but not the capacity to take protected industrial action which does not, or has not been determined to, have those consequences. Further, because the capacity to take protected industrial action would, on the approach taken by the Deputy President, be “split” as between different types of industrial action, it would potentially give rise to a situation where s 429 would allow some protected action to continue to be taken at the same time as a new protected action ballot process is being undertaken with respect to that employee claim action to which s 429 does not apply. Such a complicated situation is not consistent with the simple process for protected action ballots contemplated by s 436. The Deputy President’s approach would also limit the extent to which employees could take employee claim action after the suspension period until a further protected action ballot process can be undertaken, but leave the employer free to take any type of employer response action. This would have the potential to create an unfair imbalance in bargaining power.
[43] The same observations apply in respect of the application of s 429 to protected industrial action suspended as a result of orders made pursuant to s 423, s 425 or s 436. Indeed the position is a fortiori with respect to suspension orders made under those provisions. Because they operate only in respect of industrial action that is being engaged in, on the approach taken by the Deputy President s 429 would have no work to do with respect to industrial action that is not being engaged in at the time the suspension order is made (and therefore could not be the subject of the order). Again, there is no sensible policy reason why s 429 would have a differential effect in this way. Further, it would render s 429(1)(b)(i), which makes s 429 capable of application to industrial action authorised by a protected action ballot which has not yet occurred, nugatory in respect of suspension orders made pursuant to ss 423, 425 or 426.
[44] We consider it likely that a more sensible and straightforward approach was intended: that where there is any suspension of protected industrial action, s 429 allows employee claim action authorised by a protected action ballot to be engaged in after the end of the suspension period without the need for a further protected action ballot, and the suspension period does not count in determining the period in which such action may be taken. In this way, a suspension order cannot operate to reduce the length of the time period during which employee claim action may be engaged in. This approach is consistent with the description of the general purpose and function of Div 6 of Pt 3-3 in paragraphs 1707-8 of the Explanatory Memorandum as follows (emphasis added):
“Suspension or termination of protected industrial action brings to an end the right to take protected industrial action. Protected industrial action may be resumed after any period of suspension, but will be subject to any requirements for the giving of notice before any action may be taken. A termination of protected industrial action may lead to FWA making a workplace determination under Part 2-5.
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.”
[45] The emphasised parts of the Explanatory Memorandum do not contain any differentiation between protected industrial action the right to take which is entirely brought to an end by a suspension order (because of the operation of s 413(7)(a)), and the protected industrial action which may be resumed after the suspension period ends. There is no suggestion that some types of authorised protected industrial action will not be able to be resumed after the suspension period ends.
[46] With these contextual considerations in mind, we turn directly to the text of s 429(1), which prescribes the circumstances in which s 429 applies. The chapeau to the subsection states that it applies “in relation to employee claim action for a proposed enterprise agreement”, subject to the satisfaction of the three conditions specified in paragraphs (a), (b) and (c). The words used in the chapeau plainly do not have the effect of confining the section’s application to industrial action which is the subject of the relevant suspension order. However the Deputy President implicitly concluded, and Broadspectrum expressly submitted, that the scope of the chapeau is confined by the first condition in s 429(1)(a), in that the use of the definite article in the paragraph (“an order suspending the employee claim action has been made”) necessarily requires a precise equation between the employee claim action to which the suspension order applies and the employee claim action to which s 429 applies.
[47] It may be accepted that this is a textually available reading of s 429(1), considered in isolation. However it does not accord with the statutory purpose of the provision which we have identified from an analysis of the statutory context. Section 15AA of the Acts Interpretation Act 1901 requires that we prefer an alternative interpretation of s 429(1) which would best achieve the statutory purpose, provided of course that such an alternative interpretation is open. 26 We consider that the provision can be read in an alternative way which would give effect to the statutory purpose. The interpretation preferred by the Deputy President implies that s 429(1)(a) requires that the employee claim action to which the section applies must have been wholly suspended by an order made under Div 6. However, read in the context of the section as whole, the condition in s 429(1)(a) may also be interpreted as being satisfied if any employee claim action for a proposed enterprise agreement has been the subject of a suspension order. As earlier stated, the chapeau to the subsection refers to the section applying generally to “employee claim action for a proposed enterprise agreement”; this expression may be characterised as constituting “a collective noun which, although singular in form, is used with plural implications”.27 With that implied plurality in mind, we do not consider that the use of the definite article “the” in s 429(1)(a) necessarily requires a complete correlation between the particular employee claim action suspended by order of the Commission and the employee claim action to which the section applies, so that the operation of a suspension order upon any part of the collective expression is sufficient to satisfy the condition.
[48] This is an approach which sits more conformably with the rest of the section - in particular, s 429(1)(b) and s 429(4). If because of s 429(1)(a) the application of section 429 is confined to protected industrial action directly subject to a suspension order, it is difficult to identify what practical function is served by s 429(1)(b). A suspension order may only be made with respect to protected industrial action that is being engaged in or (in the case of s 424) is threatened, impending or probable; thus protected industrial action to which a suspension order applies will by definition have been authorised by a protected action ballot and will necessarily either not have ended before the beginning of the suspension period (because it is being engaged in) or some or all of it will not have been taken before the beginning of the suspension period (because it is threatened, impending or probable). In short, on the approach taken by the Deputy President, s 429(1)(b) has no separate work to do. However, on the approach we prefer, that is not the case. If s 429(1)(a) does not require that the entirety of the employee claim action to which the section applies be directly subject to a suspension order, then s 429(1)(b) would, for example, operate to exclude employee claim action that was authorised by the ballot to occur on a single occasion only or on a specific date, and had in fact occurred in accordance with the authorisation prior to the commencement of the suspension period.
[49] Section 429(4) is a provision that is confirmatory in nature. What is notable is that it operates by reference to the employee claim action authorised by the protected action ballot; this is suggestive of a wider application of the section than merely the employee claim action the subject of a suspension order.
[50] The Explanatory Memorandum, insofar as it deals directly with s 429, is indicative of the section having application to the resumption of protected industrial action by employees generally after the end of a suspension period. There is no indication that its application was intended to be confined in the way determined by the Deputy President. Paragraph 1736 of the Explanatory Memorandum states:
“If employee claim action has been suspended by FWA, it may be possible for employees to resume industrial action after the period of suspension without another protected action ballot if the industrial action was authorised by a ballot and one of the following circumstances applies:
● some or all of the industrial action authorised by the protected action ballot is yet to be taken (paragraph 429(1)(b)(i)); or
● the industrial action had not ended before the period of suspension (paragraph 429(1)(b)(ii)); or
● the industrial action would have continued beyond the period of suspension (paragraph 429(1)(b)(iii)).”
[51] For the reasons we have given, we consider that the Deputy President proceeded upon a misconstruction of s 429 in her determination that the forms of industrial action identified in the TWU’s notices of 11 and 22 October 2018 would not be protected and were therefore required to be the subject of an order under s 418. Section 429 applied to the entirety of the employee claim action authorised by the protected action ballot (there being no suggestion that any of that action did not satisfy s 429(1)(b)(i), (ii) or (iii)). The effect of s 429(3) was to extend the period in which employee claim action could be taken pursuant to the ballot for a further two months after 14 September 2018. The industrial action the subject of the notices would be taken within this extended period and would be protected. Accordingly the Deputy President acted beyond power in making the Order.
[52] We observe that the TWU might have raised an issue in its appeal concerning the terms of clause 4.1 of the Order in light of the Full Bench decision in Maritime Union of Australia v Patrick Stevedore Holdings Pty Limited. 28 However in the circumstances we do not need to deal with that issue any further.
Conclusion
[53] We order as follows:
(1) Permission to appeal is granted with respect to the second ground of appeal. Permission to appeal is otherwise refused.
(2) The appeal is upheld.
(3) The Order (PR701738) is quashed.
VICE PRESIDENT
Appearances:
A. Dzieciol for the Transport Workers’ Union of Australia
J. Snaden of Counsel for Broadspectrum (Australia) Pty Ltd
Hearing details:
2019.
Sydney/Perth:
1 February.
Printed by authority of the Commonwealth Government Printer
<PR704554>
1 PR701738
2 [2018] FWC 6582
3 PR608038
4 [2018] FWC 4706
5 PR609847
6 [2018] FWC 4930
7 Reasons at [5]
8 Reasons at [38]
9 Reasons at [44]
10 Reasons at [45]
11 Reasons at [47]
12 [2010] FWAFB 1014, 194 IR 30
13 [2012] FCAFC 65, 202 FCR 200
14 Reasons at [48]-[65]
15 Reasons at [66]-[70].
16 Reasons at [73]
17 [2013] FWCFB 5982
18 [2010] FWAFB 1014, 194 IR 30 at [11]-[12]
19 Ibid at [13]
20 [2012] FCAFC 65, 202 FCR 200
21 Ibid at [179]
22 Ibid at [69]-[70]
23 Ibid at [128]-[129]
24 Ibid per Lander J at [72]; per Buchanan J at [130]; per Perram J at [182]
25 [2013] FWCFB 5982
26 WASB v Minister for Immigration and Citizenship [2013] FCA 1016, 217 FCR 292 at [37]
27 Re McJannet and Others; ex parte Minister for Employment, Training and Industrial Relations for the State of Queensland and Others [1995] HCA 31, 184 CLR 620 at 640
28 [2013] FWCFB 7736, 237 IR 1 at [46]
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