United Voice v MSS Security Services Pty Ltd
[2013] FWC 4087
•27 JUNE 2013
[2013] FWC 4087 |
FAIR WORK COMMISSION |
DECISION AND REASONS FOR DECISION |
Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.
United Voice
v
MSS Security Services Pty Ltd
(C2013/4647)
COMMISSIONER CLOGHAN | PERTH, 27 JUNE 2013 |
Application for an order that industrial action by employees or employers stop etc.
[1] This application considers whether industrial action taken by an employer (employer response action) is protected industrial action if it is in response to protected industrial action by employees (employee claim action) which has ceased.
[2] United Voice contends that for employer response action to be protected industrial action, the employee claim action must be “happening, threatened, impending, probable or being organised”.
[3] MSS Security Services Pty Ltd contends that the employer response action meet all the provisions of being protected industrial action contained in the Fair Work Act 2009. Further, that there is no statutory requirement for employee claim action to continue in existence in order for employer response action to commence and be protected industrial action.
PROCEDURAL BACKGROUND
[4] On 5 June 2013, United Voice (United Voice or Applicant) made application to the Fair Work Commission (Commission) for an order that MSS Security Pty Ltd (Employer) stop industrial action.
[5] The application was made pursuant to paragraph 418(2)(b) of the Fair Work Act 2009 (FW Act).
[6] A hearing into the application occurred on 7 June 2013. At the conclusion of the hearing, I dismissed the application.
[7] These are my written reasons for dismissing the application.
[8] At the hearing, United Voice was represented by Mr Ash, Senior National Legal Officer.
[9] The Employer was represented by Mr Levin of counsel. Evidence on behalf of the Employer was given by Mr M Cuchia, General Manager, Aviation and Ms S Pedlow, Manager Human Resources for Western Australia.
THE DISPUTE
[10] Since September 2012, the Employer has been in bargaining with United Voice for a replacement to the MSS Security Pty Limited - LHMU - Perth Airport (WA) Enterprise Agreement 2010-2012 (2010 Agreement).
[11] The nominal expiry date of the 2010 Agreement is 31 December 2012.
[12] United Voice is a bargaining representative for the proposed replacement agreement.
[13] On 26 April 2013, United Voice made application for a protected action ballot order pursuant to s.437 of the FW Act. The Commission granted the Order on 1 May 2013 (PR536074).
[14] On 20 May 2013, the Australian Electoral Commission declared the results of the protected action ballot, in which a majority of eligible voters approved the taking of protected industrial action.
[15] On 22 May 2013, United Voice gave the Employer notice of employee claim action in the form of a one (1) hour stoppage and the wearing of stickers, badges, etc. The employee claim action commenced on 28 May 2013 at 2:00 pm and ceased at 3:00 pm.
[16] On 24 May 2013, United Voice gave further notice of employee claim action to commence on 30 May 2013 and concluding on 31 May 2013.
[17] On 28 May 2013, the Employer gave notice to United Voice of employer response action in the form of a lock out of five (5) employees. The Employer’s notice of 28 May 2013 states:
“The lock out is being organised and engaged in as a response to the industrial action taken on Tuesday 28 May 2013 / Wednesday 29 May 2013.”
[18] On the same day, a similar notice was given by the Employer to the five (5) affected employees. The Employer’s notice to employees states that the action was as a result of the “industrial action taken on 28 and 29 May 2013”. The Employer response action was to commence “at the time each of the Employees respectively is given a lock out notice on 28/29 May 2013 and will continue until 0300 hrs on Wednesday 12th June 2013”.
[19] Subsequently on 28 May 2013, United Voice gave the Employer notice of employee response action “pursuant to section 414(5) (sic) of the Fair Work Act 2009...this action is as a direct response to the lock out of [names of five employees]. All members of United Voice...will be engaging in a 24 hour stoppage of work commencing at 3:00 pm 28 May 2013 and concluding at 3:00 pm on 29 May 2013”.
[20] On 1 June 2013, the Employer gave to United Voice and other bargaining representatives, notice of employer response action in the form of a lock out of a further nine (9) employees. The notice states that the lock out “is being organised and engaged in as a response to the industrial action taken on Tuesday 28 May 2013”. The notice provides when the employers response action commences and informs the bargaining representatives that the lock out of the nine (9) employees “will continue indefinitely”.
[21] A similar notice was provided to the nine (9) affected employees.
[22] I now turn to the specific issue in dispute. Firstly, I repeat below what United Voice sets out in its application:
“United Voice contends that the lock out notified on 1 June 2013 is not protected industrial action as it does not come within section 411 of the Fair Work Act 2009 (“the Act”) and amount to employer response action. United Voice contends that the lock out has not been organised or engaged in as a response to the employee claim action in dot point 1 above.”
[23] Dot point 1 reads:
“United Voice, as a bargaining representative engaged in protected industrial action at 2:00 pm on 28 May 2013”.
[24] Further,
“United Voice contends that employer response action needs to be responsive - it needs to be in response to employee claim action that is happening, threatened, impending or probable or being organised.
The employee claim action engaged in on 28 May 2013 is no longer action which is happening, threatened, impending, probable or being organised.”
[25] Put shortly and simply, United Voice, in its application, contends that because the employee claim action ceased at 3:00 pm on 28 May 2013, the Employer is prevented from taking employer response action, that is, locking out employees on 1 June 2013.
[26] However, United Voice, in its oral submissions states:
“...we take no issue in relation to the nine individuals, we’re only talking about the locking out of the five individuals which was the notice that was issued on 1 June for their response to action that occurred and concluded on 28 May.” 1
[27] Despite this confusion, the Employer issued only one (1) notice on 1 June 2013 and it was a lock out of nine (9) employees. The Employer’s notice of 1 June 2013 states that the lock out “is being organised and engaged in as a response to the industrial action on Tuesday 28 May 2013”.
[28] In conclusion, United Voice contend that the Employer response action notified to it and the relevant nine (9) employees on 1 June 2013 is not protected industrial action because the Employee claim action engaged in on 28 May 2013 is “no longer action which is happening, threatened, impending, probable or being organised”.
[29] The factual background to enterprise bargaining and industrial action must be considered within the relevant statutory provisions.
RELEVANT STATUTORY PROVISIONS
[30] Industrial action is defined in s.19 of the FW Act. The relevant parts are as follows.
● 19 Meaning of industrial action
(1) Industrial action means action of any of the following kinds:
(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d) the lockout of employees from their employment by the employer of the employees.
(2) ...
(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.
Note: In this section, employee and employer have their ordinary meanings (see section 11).
[31] The meaning of protected industrial action and its constituent provisions are provided for in Division 2, Part 3.3 of the FW Act. The relevant parts are as follows.
● 408 Protected industrial action
Industrial action is protected industrial action for a proposed enterprise agreement if it is one of the following:
(a) employee claim action for the agreement (see section 409);
(b) employee response action for the agreement (see section 410);
(c) employer response action for the agreement (see section 411).
● 409 Employee claim action
Employee claim action
(1) Employee claim action for a proposed enterprise agreement is industrial action that:
(a) is organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement that are only about, or are reasonably believed to only be about, permitted matters; and
(b) is organised or engaged in, against an employer that will be covered by the agreement, by:
(i) a bargaining representative of an employee who will be covered by the agreement; or
(ii) an employee who is included in a group or groups of employees specified in a protected action ballot order for the industrial action; and
(c) meets the common requirements set out in Subdivision B; and
(d) meets the additional requirements set out in this section.
Protected action ballot is necessary
(2) The industrial action must be authorised by a protected action ballot (see Division 8 of this Part).
Unlawful terms
(3) The industrial action must not be in support of, or to advance, claims to include unlawful terms in the agreement.
Industrial action must not be part of pattern bargaining
(4) ...
Industrial action must not relate to a demarcation dispute etc.
(5) ...
Notice requirements after suspension order must be met
(6) ...
Officer of an employee organisation
(7) ...
● 410 Employee response action
Employee response action
(1) Employee response action for a proposed enterprise agreement means industrial action that:
(a) is organised or engaged in as a response to industrial action by an employer; 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 will be covered by the agreement; and
(c) meets the common requirements set out in Subdivision B; and
(d) meets the additional requirements set out in this section.
Industrial action must not relate to a demarcation dispute etc.
(2) ...
Officer of an employee organisation
(3) ...
● 411 Employer response action
Employer response action fora proposed enterprise agreement means industrial action that:
(a) is organised or engaged in as a response to industrial action by:
(i) a bargaining representative of an employee who will be covered by the agreement; or
- (ii) an employee who will be covered by the agreement; and
(b) is organised or engaged in by an employer that will be covered by the agreement against one or more employees that will be covered by the agreement; and
(c) meets the common requirements set out in Subdivision B.
[32] The common requirements for industrial action to be protected industrial action are found in Subdivision B of Part 3.3 of the FW Act.
● 413 Common requirements that apply for industrial action to be protected industrial action
Common requirements
(1) This section sets out the common requirements for industrial action to be protected industrial action for a proposed enterprise agreement.
Type of proposed enterprise agreement
(2) ...
Genuinely trying to reach an agreement
(3) The following persons must be genuinely trying to reach an agreement:
(a) if the person organising or engaging in the industrial action is a bargaining representative for the agreement—the bargaining representative;
(b) if the person organising or engaging in the industrial action is an employee who will be covered by the agreement—the bargaining representative of the employee.
Notice requirements
(4) The notice requirements set out in section 414 must have been met in relation to the industrial action.
Compliance with orders
(5) ...
No industrial action before an enterprise agreement etc. passes its nominal expiry date
(6) The person organising or engaging in the industrial action must not contravene section 417 (which deals with industrial action before the nominal expiry date of an enterprise agreement etc.) by organising or engaging in the industrial action.
No suspension or termination order is in operation etc.
(7) ...
● 414 Notice requirements for industrial action
Notice requirements—employee claim action
(1) Before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.
(2) The period of notice must be at least:
(a) 3 working days; or
(b) if a protected action ballot order for the employee claim action specifies a longer period of notice for the purposes of this paragraph—that period of notice.
Notice of employee claim action not to be given until ballot results declared
(3) A notice under subsection (1) must not be given until after the results of the protected action ballot for the employee claim action have been declared.
Notice requirements—employee response action
(4) Before a person engages in employee response action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.
Notice requirements—employer response action
(5) Before an employer engages in employer response action for a proposed enterprise agreement, the employer must:
(a) give written notice of the action to each bargaining representative of an employee who will be covered by the agreement; and
(b) take all reasonable steps to notify the employees who will be covered by the agreement of the action.
Notice requirements—content
(6) A notice given under this section must specify the nature of the action and the day on which it will start.
[33] It is not necessary to set out in detail the remaining statutory provisions relating to this application but they are found in Part 2-4 - Enterprise Agreement and s.228 of the FW Act.
CONSIDERATION
[34] Subject to meeting the specific requirements of the FW Act, employees and employers can take protected industrial action.
[35] Industrial action is defined in s.19 of the FW Act
[36] For employee claim action to be protected industrial action, the following general requirements must have been met:
● authorised by a protected action ballot (ss.409(2));
● must not be in support of or to advance unlawful terms (ss.409(3));
● must not be in support of pattern bargaining (ss.409(4)); and
● must not relate to a demarcation dispute (ss.409(5)). All citations are to the FW Act.
[37] There is no dispute between the parties that the above requirements in paragraph [36] have been met.
[38] In addition, the following common requirements must be met for industrial action to be protected industrial action:
● the industrial action must not relate to a greenfields or multi-enterprise agreement (ss.413(2));
● the persons (including bargaining representatives) organising or engaging in industrial action are genuinely trying to reach agreement (ss.413(3));
● the notice requirements have been met (ss.413(4)); and
● the industrial action must not be organised or engaged in before the nominal expiry date of the enterprise agreement (ss.413(6)). All citations are to the FW Act.
[39] There is no dispute between the parties that the above conditions have been met.
[40] I should also add that there are further common requirements for industrial action to be protected industrial action, however, they are not relevant for the purposes of this application. Those further provisions can be found in s.413 of the FW Act.
[41] Part 2-4 of the FW Act sets out the provisions related to enterprise bargaining.
[42] The objects of Part 2-4 include the requirement of the parties be bargaining in good faith. The good faith bargaining requirements for bargaining representatives can be found in subsection 228(1) of the FW Act.
[43] Finally, for industrial action to be protected industrial action, it is necessary that the bargaining representatives meet the good faith bargaining requirements in s.228 of the FW Act.
[44] From the submissions and evidence, I am satisfied that the bargaining representatives are meeting the common requirements for industrial action to be protected industrial action and the bargaining representatives are meeting the good faith bargaining requirements.
[45] I now turn to the forms of industrial action which can be protected industrial action. The forms of protected industrial action are contained in s.408 of the FW Act and are as follows:
(a) employee claim action for the agreement;
(b) employee response action for the agreement; and
(c) employer response action for the agreement (my emphasis).
[46] I now intend to commence by examining the notice requirements for employer response action required in ss.415(5) and (6) of the FW Act.
What are the notice requirements for employer response action?
[47] The first requirement in any notice is that before an employer engages in employer response action, the employer must give written notice to each bargaining representative of the intended action. Secondly, the employer must take all reasonable steps to notify the employees of the intended action.
[48] There is no dispute between the parties that the Employer notified the bargaining representatives and the affected employees of the proposed employer response action on 1 June 2013.
What should be contained in the notice requirement for employer response action?
[49] Subsection 414(6) of the FW Act provides two mandatory conditions which must be contained in the notice requirement for employer response action and they are as follows:
● the nature of the action; and
● the commencement day of the action.
[50] There is no dispute between the parties that the Employer provided the nature of the action (lock out of nine (9) employees) and that the lock out would commence when each employee was given notice on 5 June 2013.
[51] While the Employer specifically sets out in the notice of 1 June 2013 that the employer response action was as a result of employee claim action on 28 May 2013, there is no statutory requirement to do so.
[52] A bargaining representative can argue that the statutory conditions relating to notification or content of employer response action have not been complied with. Further, a bargaining representative could contest that all reasonable steps have not been taken to notify affected employees of the proposed employer response action. However, in my view, the Employer’s notice of employer response action has not been invalidated merely because the Employer has included particular information which is not required. The condition precedent for employer response action is that it is organised or engaged in response to industrial action by a bargaining representative or an employee covered by the replacement agreement.
[53] To verify whether employer response action is what an employer claims it is, it is necessary to determine whether bargaining representatives or employees covered by the proposed replacement agreement, have engaged in protected industrial action. That determination is arrived at by an examination of the facts. If the condition of employee claim action is fulfilled, subject to the common requirements in Subdivision B of Division 2 of Part 3-3 of the FW Act, an employer is able to claim, as this Employer does, that it is properly engaging in employer response action which is protected industrial action.
What are the circumstances which must exist for employer response action to be protected industrial action?
[54] United Voice submit that, for employer response action to be protected industrial action, the employee claim action must be “happening, threatened, impending, probable or being organised” 2 and rely upon Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Pinnacle Career Development Pty Ltd (CEPU) [2010] FCA 1350.
[55] His Honour expresses the circumstances in CEPU this way:
“...the respondent’s notice seeks to deal with the sequential possibilities by saying, in effect, ‘if you do any of those things you will be subject to a lock out’ and the practical way to read the letter is to construe it as saying ‘if you do any of those things you will be subject to an immediate lock out which starts on the next shift or the next ordinary starting time after the strike conduct on one of the identified days”. 3
[56] Simply put, the “trigger” for employer response action is that employees have engaged employee claim action.
[57] In CEPU, the employer gave notice to the bargaining representative “that in response to the industrial action foreshadowed by the bargaining representative, that ‘we put you on notice that any employees that engages in such action will be the subject of an indefinite lock out” 4. The employer’s notice to the bargaining representatives was expressly responsive to threatened industrial action.
[58] In CEPU the question for determination was whether the employer’s notice met the requirements of ss.414(6). Justice Greenwood found the employer’s notice valid and concluded with the following:
“64 In assessing the adequacy of the respondent’s notices it is important to remember two things. First, the question of whether the notices tell the addressee the day when lockout action will start is largely a matter of impression and an assessment of how the notices strike the reader in the context of the applicant’s notices. Second, the respondent’s notices are responsive notices. They engage the applicant’s notices. The position might be different if the notices from the respondent had been notification of initiating industrial action. However, the notice is a document that tells the bargaining representative and employees, of the action the employer proposes to take, in response to the foreshadowed employee claim action. The assessment of the adequacy of the notice must take into account the interdependency, in a practical sense, between the notices given by the applicant on behalf of the employees and the notices given by the respondent of intended employer response action.”
[59] The Applicant appears to submit that because Justice Greenwood determined that the employer’s notice related to “threatened” industrial action, His Honour endorsed the proposition that employee claim action must be “happening, threatened, impending or probable or being organised” in accordance with subsection 418(1) of the FW Act, before an employer can engage in employer response action. I find nothing in CEPU which warrants such a conclusion by His Honour.
[60] The short point made by Justice Greenwood in CEPU is that, for an employer response action to be valid, it must be responsive.
[61] While not raised by United Voice, I refer to a judgement of the Full Court of the Federal Court of Australia in Australian and International Pilots Association v Fair Work Australia [2012] FCAFC 65 at paragraph 155 where Perram J states:
“The terms of 411(a) make clear that, for industrial action to be employer response action, it must be ‘organised or engaged in as a response to industrial action’ by an employee or a bargaining agent of an employee (which includes a union). The words ‘as a response’ require only that the lock out be seen as causally connected to employees’ industrial action. It does not have to be reasonable, proportionate or rational.”
[62] This judgement, in my view, again supports the statutory interpretation of the necessity for employer response action only to be connected to employee claim action taking place.
[63] In contrast to the submissions by United Voice, in my view, an employer cannot take employer response action if employee claim action is “threatened, impending, probable or is being organised”. Employer response action is only operative in response to employee claim action that is or has taken place. Obviously, if employee claim action is “happening”, or has happened, it has occurred and an employer may wish to respond with employer response action.
[64] As this application is made pursuant to s.418 of the FW Act, it is necessary for the Commission to be satisfied that:
● the industrial action by the Employer is unprotected industrial action; and
● the unprotected industrial action is “happening, threatened, impending, probable or is being organised”
before an order can be made that the industrial action stop, not occur or not be organised.
[65] Whether the industrial action, in this case, employer response action, is protected or not, is determined by the statutory conditions I have set out in paragraphs [30] to [33]. I am satisfied that the Employer has met these conditions.
[66] The difficulty which United Voice has in this application is that there is no condition in the FW Act which prevents the Employer from taking employer response action because a particular occurrence of employee claim action has ceased. I am unable to agree with the Applicant that Parliament has imposed this additional condition in the statutory regime.
[67] The key condition in employer response action is that it be in response to industrial action by bargaining representatives or employees. The Australian Concise Oxford Dictionary defines “response” as “answer...reply, retort...elicited by stimulus or influence”.
[68] In this application, I was satisfied, on the facts, that the Employer’s employer response action was in reply to, and in answer to, the employee claim action. For this reason, I am satisfied that the Employer’s industrial action was protected industrial action.
[69] For the above reasons, I dismissed the application on transcript on 7 June 2013 and made Order PR537749 on 10 June 2013.
COMMISSIONER
Appearances:
Mr M Ash on behalf of United Voice.
Mr R Levin of counsel for MSS Security Services Pty Ltd.
Hearing details:
2013:
Perth
7 June.
1 Transcript PN113
2 Transcript PN43
3 CEPU paragraph 62
4 CEPU paragraph 59
Printed by authority of the Commonwealth Government Printer
<Price code {C}, PR538181>
2
0