University of Tasmania v National Tertiary Education Industry Union

[2017] FWC 6505

[2017] FWC 6505

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action

University of Tasmania
v
National Tertiary Education Industry Union
(C2017/5714)

DEPUTY PRESIDENT BARCLAY HOBART, 12 DECEMBER 2017

Alleged industrial action at University of Tasmania.

[1] On 17 October 2017 the Applicant applied, pursuant to s 418 of the Fair Work Act 2009 (the Act) for a stop order in respect to proposed industrial action to be taken by the Respondent on 19 and 20 October 2017.

Background

[2] The Application was the second application made by the Applicant in respect to proposed industrial action to be taken by the Respondent. The first application was dealt with the previous week and related to “24 hour ban on any work related to the preparation and delivery to teaching on Friday 13 October 2017”. Orders were made stopping the proposed action on 12 October 2017. The decision is reported as University of Tasmania v National Tertiary Education Industry Union 1. I will refer to this decision as UTAS (No.1).

[3] The proposed industrial action the subject of this application was notified by Notices of Industrial Action dated 13 October 2017 and 16 October 2017.

[4] The hearing took place on 18 October 2017 and I made orders stopping the proposed industrial action. I indicated I would publish reasons at a later date. These are those reasons.

The Facts

[5] On 31 August 2017 the results of a Protected Action Ballot (the PAB) were declared. The PAB included the question:

“Unlimited stoppages of work, in part or in whole, between five (5) minutes and 24 (twenty-four) hours of duration?”

[6] The Notices of Industrial Action (Current Notice) referred to:

“1. A stoppage of work for the duration of 1 hour for staff who are delivering teaching sessions commencing at 9 a.m.”

There after followed a further 8 identical paragraphs save that the time was specified to be commencing on the hour from 10.00 a.m. hourly up until 5.00 p.m.

[7] The Respondent had previously issued a Notice of Industrial Action dated 20 September 2017 providing for stoppages of work (the Previous Notice).

Submissions

[8] The Applicant submitted that:

•  The proposed industrial action was not a stoppage, but a total ban on teaching and as UTAS (No.1) stopped a ban which amounted to a total ban because the Respondent had not commenced industrial action in the form of total bans within 30 days of the declaration of the PAB, that these bans would also be unprotected; and

•  Alternatively if the notices were a stoppage and not a ban that the Respondent had not commenced industrial action of the type described in the Notices of Industrial Action within 30 days of the declaration of the PAB.

[9] The Respondent submitted that the Notice provided for a refusal to perform any work at all during the relevant time and in that way was a stoppage of work contemplated by s 19(1)(c) of the Act. As the Previous Notice which commenced industrial action within 30 days of the PAB was also for stoppages the Current Notice continued industrial action of the same type commenced within the 30 days and was therefore protected action.

Consideration

[10] My task is to construe the Current Notice to determine whether the proposed industrial action is a ban, in which case consistent with UTAS (No. 1) would be unprotected action or whether the Current Notice is in fact a stoppage.

[11] A difficulty I have is that there was no evidence adduced as to how the industrial action was to work. I was told certain things from the bar table as to how Mr Smith (who appeared for the Respondent) understood it would work, but I had no evidence of how in fact the stoppages would be imposed.

[12] Importantly I had no evidence of what the teachers would do while they were not delivering teaching sessions. It was suggested they would do nothing. That may or may not have been the case.

[13] However, in my opinion the Current Notice provides for a ban on teaching within the meaning of s 19(1)(b). The Current Notice has the effect of banning teaching. It does not ban any other activities which an employee may carry out as part of their duties. In this way the Current Notice provides for a restriction or limitation on the performance of work in that it bans those employees who are scheduled to carry out teaching from teaching for the relevant hour. It does not prevent other members who are covered by the PAB from carrying out duties. It does not prevent those who do not teach because of the ban from carrying out other duties associated with their role.

[14] The situation may be contrasted with the Previous Notice. That notice provided for “[s]toppages of work” of various durations. Clearly enough that Notice was for a stoppage of all work for all employees who attend for work. To use the words of s 19(1)(c) of the Act it provided for a refusal to perform any work at all by employees who attended for work.

[15] The Current Notice relates to only some employees who attend for work (those delivering teaching) and relates only to delivery of teaching. This fits within the definition of industrial action in s 19(1) (b) of the Act. To use those words of the section, the proposed action is a ban, limitation or restriction on the performance of work (teaching) by an employee (not all employees who attend for work).

[16] In this way the Current Notice properly construed is for a ban on teaching and not a stoppage. Consistent with UTAS (No. 1) the action would be unprotected industrial action.

Conclusion

[17] To make the orders sought by the Applicant I was required by s 418 (1) of the Act to be satisfied that unprotected industrial action:

•  is happening; or

•  is threatened, impending or probable; or

•  is being organised.

Clearly enough the service of the Current Notice satisfies those requirements.

[18] As I concluded that the proposed industrial action would be unprotected I made the orders sought by the Applicant.

The Applicants Alternative Submission

[19] Given my findings I am not required to decide this issue. However I will say a few words about it.

[20] The Applicant submitted that if the Current Notice was for a stoppage and was not a ban, then the industrial action had not commenced within 30 days of the PAB.

[21] The submission was that the Previous Notice related to stoppages of all the employees eligible to take part in protected action and that the Current Notice related only to a portion of the employees eligible to take part in industrial action. In this way it was submitted that the proposed industrial action was of a different type to the action taken pursuant to the Previous Notice and was therefore not commenced within 30 days of the PAB. Accordingly the proposed action would be unprotected.

[22] The Applicant relied on the words “in whole or in part” in question 1 of the PAB. It submitted that “in whole or in part” must relate to those employees who are to take part in the industrial action. It was submitted that the phrase could not refer to the duration of the action because that was already dealt with in the question itself (between 5 minutes and 24 hours). It was also submitted that it could not relate to the activity as that would be a ban. The Applicant submitted that the words must be given work to do in the construction of the question, I infer adopting the authorities on statutory construction to that effect. As the only work they could do was in reference to the class of employee to take part in the industrial action the question applied to two types of industrial action, namely a stoppage of only some of the employees (“in part”) or a stoppage of all the employees (“in whole”) eligible to take industrial action..

[23] At the hearing I indicated that it may well be that the words in fact have no work to do. Without making any final decision on the matter as submissions were not made about the issue in any detail I am inclined to the view that the words in fact have no work to do. A reading of the question does seem to suggest that the subject matter to which the phrase “in whole or in part” relates is the work. There is no reference in the question to employees or classes of employees. That being the case the words would have no work to do in light of s 19 of the Act.

[24] I also note the question in the PAB is not to be construed as a statute. Those authorities are really of no application. Further I think it likely (although again I had no submissions on the issue) that s 19 of the Act assists. Section 19 (1) (b) refers to “an employee” while s 19 (1) (c) refers to “employees who attend for work”. It may well be therefore that bans can be partial bans relating to individual employees or a class of employees but a stoppage defined by s 19 (1) (c) must relate to all employees who are eligible to take industrial action and who attend for work. As such it may be that a stoppage cannot relate to only a limited class of employees who attend for work as the Current Notices purport to provide. The industrial action is to be taken by all employees who attend for work on the day of the proposed action. If that is the case then the phrase “in whole or in part” in the question has no work to do.

[25] If my view of s 19 (1) (b) and (c) is correct (I am not aware of any other decisions which have dealt with this particular issue) then the Current Notice would not be for a stoppage under s 19 (1) (c) because the proposed industrial action does not relate to the “employees who attend for work”. I have expressed my preliminary view as it may be of assistance to the parties in the future, but what I have said is not to be taken as binding as I have not had the benefit of any submission on s 19 to enable a formal view to be reached.

DEPUTY PRESIDENT

Appearances:

Mr R Collinson for Applicant

Ms S Masters for the Applicant

Mr C Smith for the Respondent

Ms E Gill for the Respondent

Hearing details:

2017

18 October

 1   [2017] FWC 5723

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