CONSTRUCTION OF SECTIONS 417 and 19
46 At the hearing of the appeal, the appellants took a bifurcated approach to the proposed construction of ss 417 and 19. The whole of the first day and part of the second seemed to be conducted upon the basis that s 19 was to be construed in accordance with the note concerning the Age decision. However when junior counsel addressed grounds 3 and 4, it became apparent that the appellants were taking a rather more complex approach to the construction question. Their favoured position was that conduct would comprise industrial action only if it related to a relevant enterprise agreement.
47 It is said that the primary Judge, in effect, commenced from the position that failure to attend for, or perform work comprised industrial action unless there was some reason for taking a different approach. It was submitted that:
This was, however to start from fundamentally the wrong position. His Honour should have considered what action each appellant worker actually performed, and whether there was evidence to establish that this action was industrial.
48 We suspect that this proposition reflects the confusion created by the Age decision and the note to s 19. We understand the primary Judge to have concluded that the appellants' conduct constituted industrial action because it fell within the definition provided by s 19. His Honour then examined the circumstances of the case in order to determine whether there was any reason to conclude that the appellants' conduct stood, "completely outside the area of disputation and bargaining". We consider that it was necessary that his Honour address the first question. We discuss below the suggestion that there was any further question to be addressed. However the appellants' point seems to be that characterization of conduct as "industrial action" depends upon something more than the fact that such conduct falls within the s 19 definition.
49 Fair Work took a somewhat ambivalent approach to the construction question. In its submissions on appeal senior counsel initially indicated that there were three possible approaches to the construction of s 19, namely:
that industrial action was conduct which fell within s 19;
that at least in this case, the appellants' conduct amounted to industrial action because of the exchange between Mr Waters and Mr Chaseling and the proposed rally and march; or
that as the appellants submitted, conduct will be industrial action only if it relates to the relevant enterprise agreement.
50 Ms Archer, who did not appear at first instance, initially indicated that Fair Work had, at trial, adopted the second approach, and that she was reluctant to depart from it for reasons of fairness. However, after the second hearing day, and before the third, she learned that at first instance, Fair Work had, at trial, adopted the first approach, with the second approach as a fall-back position. For reasons which appear below, we consider that, unless the particular context of the Fair Work Act in which s 19 is engaged dictates otherwise, s 19 effectively defines the term "industrial action" for all purposes. Our reasons for this conclusion include the fact that the note cannot be treated as part of the Fair Work Act. Given that there is no reference in s 19(1)(c) to, "disputation and bargaining", it is difficult to see how the note can be taken at face value.
51 We should also say something about the relevant explanatory memorandum which accompanied the Fair Work Bill 2008 (Cth). It stated at para 90 that:
The legislative note at the end of subclause 19(1) alerts the reader to the decision of the AIRC in Automotive Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Ltd [2004] AIRC 1254. The note is included to clarify that the definition of industrial action is only intended to cover actions that have an industrial character and occur within the area of disputation and bargaining.
52 This summary of the Age decision suggests that in order that conduct comprise industrial action, it must be industrial in character and occur within the area of disputation and bargaining. Such an approach would effectively limit the term to conduct characterized as industrial and occurring in the course of a dispute or bargaining. Neither the Full Bench in the Age decision, nor French J in Laing, nor the Full Court in BHP Coal accepted such a proposition.
53 There are other reasons which militate against treating the Age decision as being of assistance for present purposes. It concerned s 4 of the Workplace Relations Act, the wording of which differed substantially from that of s 19 of the Fair Work Act. In particular, the operation of s 4 was limited in ways which s 19 is not. Section 4(1)(d) (which is the approximate equivalent of s 19(1)(c)) is limited to a failure or refusal to attend for work or to perform work if:
the relevant persons are acting in accordance with a decision or direction of an organization of which they are a member; or
the failure or refusal is in connection with an industrial dispute; or
the persons are employed by the Commonwealth or a constitutional corporation; or
the persons are employed in a Territory.
54 These limitations may well have reflected concerns about the constitutional basis of the legislation, which concerns may not have arisen in connection with the Fair Work Act. However their absence from s 19(1)(c) must substantially undermine the authority of the remarks made in the Age decision concerning s 4 of the Workplace Relations Act. We consider that care is also necessary in considering the relevance of the decision in BHP Coal, partly because of the error concerning the status of the note. However we also point out that the observations concerning s 417 and s 19(1)(c) were not necessary to the decision. Further, at [119] and [120] the Full Court observed:
119 These comments were made in relation to the [Workplace Relations Act], but the definition of "industrial action" in the [Fair Work Act] is not relevantly different.
120 Ultimately, the question posed by s 19(1) of the [Fair Work Act] is whether action can be said to be "industrial" in character. If action takes place outside the area of disputation and bargaining, that is relevant in determining whether the action is "industrial", but it is not determinative.
55 As we have observed above, s 4 of the Workplace Relations Act and s 19(1)(c) of the Fair Work Act are not, in any sense, identical. It is not appropriate to treat a court's observations concerning the construction of one statute as necessarily controlling the construction of another, even if the sections are expressed in identical words: McNamara v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646 at [40] per McHugh, Gummow and Heydon JJ; see too Marshall v Director-General Department of Transport (2001) 205 CLR 603 at [62] per Hayne J as applied by Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ in Walker Corporation Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259 at [31].
56 The decision of French J in Laing is of some importance. His Honour said, concerning s 127 of the Workplace Relations Act that the term "industrial action" was widely defined (by s 4). At p 31 his Honour said:
So communication can be industrial action. And industrial action, verbal or non-verbal, can be communication in a wider sense. The withdrawal of labour because of an industrial dispute may be seen as a signal from employee to employer of a grievance or as underlining, from the employee's perspective, the seriousness of a grievance which has been communicated verbally. To say that industrial action sends a signal to the employer or communicates in this sense is not to take it out of the class of conduct to which s 127 applies.
Industrial action may be caught by the section notwithstanding that it is intended to send a signal or communicate some message other than about a dispute with the employer. It is not necessary for the application of s 127 that it relate to an industrial dispute if it relates to work regulated by an award or a certified agreement. Thus employees might stop work without the authority of their employer and in breach of their contract of employment in order to attend a rally at Parliament House or some other form of demonstration or public meeting to express views about some issue not arising out of their relationship to their employer. In such a case where their work is regulated by an award or a certified agreement, s 127 is capable of application.
57 In BHP Coal at [118]-[119] the Full Court adopted at least part of this passage.
58 We have also had regard to the decision of Gordon J in Klein v Metropolitan Fire and Emergency Services Board (2012) 208 FCR 178. We do not understand that decision to be materially inconsistent with the proposition in Laing which we have cited above.
59 We find, in the text of s 19(1)(c), no basis for limiting its operation in the way suggested by the Age decision, or in BHP Coal. Section 19(1)(c) defines the term "industrial action". It does so by having regard to the relationship between employer and employee, and the performance of work pursuant to that relationship. It is that relationship which attracts use of the word "industrial". We see no justification for the view that it is necessary to add some further "industrial qualification" to the express words of s 19(1)(c). Some other provision of the Fair Work Act may necessitate the adoption of a narrower meaning for some purposes, just as any statutory definition may be affected by context. We see no basis in the Fair Work Act for adopting a narrow approach to s 19 as it applies to s 417. However we are inclined to the view that provisions in the Crown enterprise agreement may affect its application where an employee does not attend for, or perform work because of illness. We will return to that matter.
60 Ground 4 assumes that the primary Judge correctly found that some of the appellants attended the rally. We do not accept that his Honour made any such finding. As far as we can see, his Honour simply accepted that some of the appellants may have done so, or perhaps had not worked on the relevant day in expectation that they would attend, or that no work would be done because others were absenting themselves for that reason. The appellants submit that participation at such a rally or march would not constitute industrial action within the meaning of s 19 because it did not concern issues between an employer and employees. The Full Bench in the Age decision, French J in Laing and the Full Court in BHP Coal all seem to have rejected such an argument. The appellants accept that the submission is inconsistent with those decisions and submit that we should not follow them. We see no reason to depart from the view expressed by French J in Laing.
61 Given our view as to the proper construction of ss 19(1)(c) and 417(1), it is not strictly necessary that we deal with this matter. However we will deal briefly with it. We consider that the rally and march were very much about wages and conditions, and about relations between employers and employees. To start with, the conduct in question severely disrupted the employer-employee relationship between Crown and its employees. Secondly, the flyers clearly indicated that the rally and march were sponsored by trade unions, and that it was to address quite broad political and/or social issues. In one flyer the purpose of the action was to foster "Local jobs first, more local content and train our WA Kids". The rally was, "for our future and for our kids." It was said that, "Its's our mining boom. Let's spread it around." Further, it warned that:
'The mining boom is creating massive wealth for the select few, but there are also many Australians missing out. Mining and construction companies prefer to import guest workers rather than employ locals. Manufacturing jobs are disappearing due to the high Australian dollar caused by the boom. Mining communities are suffering from underinvestment in transport, hospitals and schools. On Feb 28th let Barnett and others know that these are our resources, our jobs and our future'. Rally!
62 The march was to "Colin's palace at parliament house". The Hon Colin Barnett MP was the then Premier of Western Australia. The words "Let's spread it around" suggest a wider distribution of Western Australia's prosperity, presumably for the benefit of employees and at the expense of employers. The second flyer was to similar effect. Clearly, employees were being encouraged to participate in the rally and march, rather than perform their duties as employees.
63 Taken at face value, the focus was on the employment of local people and a redistribution of the wealth created by the mining boom. We do not think that his Honour's use of the expression, "pay and conditions of work", should be given a narrow meaning. In any event, as we have said, French J and the Full Court in BHP Coal considered that a rally at Parliament House to express views bearing upon the employment relationship was capable of being industrial action. We do not accept that the rally was for purposes unrelated to that relationship. The appellants' conduct was plainly disadvantageous to Crown. Those organizing the rally tied the imposition of such disadvantage to the causes being advanced. Crown was a construction company, a class of employer which was expressly singled out for attention. The motto "Let's spread it around" appears to reflect the call for higher wages and lower profits.
64 The appellants submit that a construction of the term "industrial action" which captures failure to attend work in order to attend a political rally or march, "would tip the balance of enterprise agreements too far in favour of employers", and that, "employees would be prohibited, on pain of civil penalty, from engaging in political disputes, even though those disputes were entirely unrelated to the employer/employee relationship". Such a situation, it is said, would be inconsistent with the objects of the Act as stated in s 3 of, "providing a balanced framework for cooperative and productive workplace relations".
65 In our opinion, the appellants' suggested construction is in the teeth of the general object of the Act, as expressed in s 3 of providing "a balanced framework for co-operative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians". The text of s 19(1), read in the context of the Act as a whole, does not evince any support for the appellants' argument. Statutory construction is a process of considering the text of the legislation as enacted by the Parliament. As Hayne, Heydon, Crennan and Kiefel JJ emphasised in Alcan (NT) Alumina Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 at [47]:
Historical considerations and extrinsic materials cannot displace the clear meaning of the text. The language which has actually been employed is the surest guide to legislative intention.
(Footnotes omitted.)
66 There is nothing in the text of the Act that suggests, let alone supports, a construction of "industrial action" that would let an employee be at liberty to choose not to perform his or her duties as, when and as often as he or she likes in order to attend a political rally. We see no merit in this submission.
67 Finally, the appellants submit that the Court should avoid a construction which would, "trench upon freedom of political communication." This submission depends upon decisions of the High Court to the effect that the Constitution contains a qualified limitation on legislative power, ensuring that the people of the Commonwealth may, "exercise a free and informed choice as electors." See McCloy v New South Wales (2015) 257 CLR 178 at [2]. The passage continues:
A. ... It is not an absolute freedom. It may be subject to legislative restrictions serving a legitimate purpose compatible with the system of representative government for which the Constitution provides, where the extent of the burden can be justified as suitable, necessary and adequate, having regard to the purpose of those restrictions.
B. The question whether a law exceeds the implied limitation depends upon the answers to the following questions, reflecting those propounded in Lange as modified in Coleman v Power:
1 Does the law effectively burden the freedom in its terms, operation or effect?
If 'no', then the law does not exceed the implied limitation and the enquiry as to validity ends.
2. If 'yes' to question 1, are the purpose of the law and the means adopted to achieve that purpose legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government? This question reflects what is referred to in these reasons as 'compatibility testing'.
The answer to that question will be in the affirmative if the purpose of the law and the means adopted are identified and are compatible with the constitutionally prescribed system in the sense that they do not adversely impinge upon the functioning of the system of representative government.
If the answer to question 2 is 'no', then the law exceeds the implied limitation and the enquiry as to validity ends.
3. If 'yes' to question 2, is the law reasonably appropriate and adapted to advance that legitimate object? This question involves what is referred to in these reasons as 'proportionality testing' to determine whether the restriction which the provision imposes on the freedom is justified.
The proportionality test involves consideration of the extent of the burden effected by the impugned provision on the freedom. There are three stages to the test - these are the enquiries as to whether the law is justified as suitable, necessary and adequate in its balance in the following senses:
suitable - as having a rational connection to the purpose of the provision;
necessary - in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom;
adequate in its balance - a criterion requiring a value judgment, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.
If the measure does not meet these criteria of proportionality testing, then the answer to question 3 will be 'no' and the measure will exceed the implied limitation on legislative power."
(Footnotes omitted.)
68 We understand the appellants' submission to be that if a construction of ss 19 and 417, which we would otherwise favour, leads to a limitation upon the right freely to express political opinions, we should reject it. It is apparently submitted that it would place an unacceptable limit upon the right freely to express political opinions if the Fair Work Act were construed as imposing a pecuniary penalty upon an employee who does not attend for work, or perform work as he or she is obliged to do, because he or she wishes to express a political opinion at some place other than his or her place of work in contravention of a term of his or her enterprise agreement.
69 A law will only create such a limitation if, in its terms, operation or effect, it effectively burdens the freedom. We do not wish to be taken as accepting that ss 19(1)(c) and 417, as we construe those sections, effectively impose any such burden. They do not interfere with the capacity of a person to express views. They merely require that duties voluntarily undertaken be performed. This includes duties and promises not to take particular action, without the agreement of the employer, while an enterprise agreement is in force. However it is not necessary that we address that question as the parties have conducted the case upon the basis that the sections impose such a burden. In those circumstances, we must address questions 2 and 3. We understand it to be common ground that a law which has the purpose of regulating employer and employee rights and obligations is compatible with representative and responsible government. The appellants, in their written outline, conceded as much. However, in their oral submissions, they submitted that in McCloy, the High Court held that the purpose and the means adopted to achieve that purpose must be so compatible. In their outline, the appellants did not identify or address the distinction between the purpose and the means adopted to fulfil that purpose. In oral submissions, the appellants asserted that whilst the purpose may have been compatible with maintenance of the constitutionally prescribed system of representative government, the adopted means were not.
70 The appellants seem to submit that any statutory requirement that an employee be at his or her place of work, and performing work of the agreed kind during the agreed hours, as a means of regulating employer and employee rights and obligations, is in some way incompatible with the maintenance of our system of representative and responsible government. This submission seems to involve the proposition that the maximum pecuniary penalty for any breach of s 417 is too high a penalty for exercising the right freely to express political opinions in a way which infringes s 417. Alternatively, it is suggested that there should be no pecuniary penalty, leaving the employer to whatever remedies it may have under the relevant terms of employment.
71 These somewhat surprising propositions are said to be supported by references to very specific passages in various judgments. In our view the submission is completely misconceived. We should briefly summarize the history of the relevant limit on statutory power. In Lange v Australia Broadcasting Corporation (1997) 189 CLR 520, the Full High Court said at 561-2:
However, the freedom of communication which the Constitution protects is not absolute. It is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution. The freedom of communication required by ss 7 and 24 and reinforced by the sections concerning responsible government and the amendment of the Constitution operates as a restriction on legislative power. However, the freedom will not invalidate a law enacted to satisfy some other legitimate end if the law satisfies two conditions. The first condition is that the object of the law is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government or the procedure for submitting a proposed amendment to the Constitution to the informed decision of the people which the Constitution prescribes. The second is that the law is reasonably appropriate and adapted to achieving that legitimate object or end. Different formulae have been used by members of this Court in other cases to express the test whether the freedom provided by the Constitution has been infringed. Some judges have expressed the test as whether the law is reasonably appropriate and adapted to the fulfilment of a legitimate purpose. Others have favoured different expressions, including proportionality. In the context of the questions raised by the case stated, there is no need to distinguish these concepts. For ease of expression, throughout these reasons we have used the formulation of reasonably appropriate and adapted.
(Footnotes omitted.)
72 In Levy v State of Victoria (1997) 189 CLR 579, Brennan CJ said at 595:
Televised protests by non-verbal conduct are today a commonplace of political expression. A law which simply denied an opportunity to make such a protest about an issue relevant to the government or politics of the Commonwealth would be as offensive to the constitutionally implied freedom as a law which banned political speech-making on that issue. However, while the speaking of words is not inherently dangerous or productive of a tangible effect that might warrant prohibition or control in the public interest, non-verbal conduct may, according to its nature and effect, demand legislative or executive prohibition or control even though it conveys a political message. Bonfires may have to be banned to prevent the outbreak of bushfires, and the lighting of a bonfire does not escape such a ban by the hoisting of a political effigy as its centrepiece. A law which prohibits non-verbal conduct for a legitimate purpose other than the suppressing of its political message is unaffected by the implied freedom if the prohibition is appropriate and adapted to the fulfilment of that purpose. Such a law prohibiting or controlling the non-verbal conduct, if it be reasonable in extent, does not offend the constitutional implication.
73 At 608, Dawson J said:
There can be no objection to approaching the matter in this way, provided that it is borne in mind that, putting to one side the situation under s 128, the ultimate question is whether the law is compatible with the elections which the Constitution requires. It is in those elections that the representative government and, ultimately, the responsible government for which the Constitution provides find their source. As I have said, the circumstances of those elections must be such as to enable the people to make a free and informed choice. In other words, they must be free elections.
Free elections do not require the absence of regulation. Indeed, regulation of the electoral process is necessary in order that it may operate effectively or at all. Not only that, but some limitations upon freedom of communication are necessary to ensure the proper working of any electoral system. Apart from regulation of the electoral process itself, elections must take place within the framework of an ordered society and regulation which is directed at producing and maintaining such a framework will not be inconsistent with the free elections contemplated by the Constitution notwithstanding that it may incidentally affect freedom of communication. In other words, the freedom of communication which the Constitution protects against laws which would inhibit it is a freedom which is commensurate with reasonable regulation in the interests of an ordered society.
(Footnotes omitted.)
74 Similar observations appear in the joint reasons of Toohey and Gummow JJ at 614, Gaudron J at 618-620, McHugh J at 624 and Kirby J at 647-648.
75 Any legislation which effectively requires that a person be in a particular location at a particular time will necessarily limit his or her capacity to engage in political discourse simultaneously at some other location. Any statutory requirement that a person perform a particular function at a particular time may have similar effect. However nothing in the cases suggests that the freedom to express political opinions should necessarily displace any other obligation, statutory or otherwise.
76 Here, it is necessary to consider the appellants' argument that s 417 is not compatible with the implied constitutional freedom in respect of its operation on persons bound by an enterprise agreement that does not allow employees to attend a political rally at any time of their choosing. It is essential to understand that s 417 operates on particular relationships that, relevantly to this appeal, owe their structure and existence to industrial bargaining. That bargaining resulted in an enterprise agreement that the Commission approved after hearing submissions from both the employer and employees.
77 The Fair Work Act prescribes a careful process in Pt 2-4, as the objects in s 171 provide, that the employer, employees and, ultimately, the Commission must follow to bargain in good faith "for enterprise agreements that deliver productivity benefits", before an enterprise agreement becomes binding. Important aspects of that process are that:
the employer and employees are to negotiate through representatives the terms that will govern their relationship for the period during which the enterprise agreement will be in force (Pt 2-4 Div 3);
the Commission must consider and approve the terms of the enterprise agreement once the employees, or a majority of them, have voted to make it (Pt 2-4 Div 4);
all of the employer, the employees and the Commission are aware that the terms of the Fair Work Act will apply to the enforcement of the enterprise agreement once approved;
every enterprise agreement must include a flexibility term (as defined in s 202(1)) that enables an employee and his or her employer to agree to an arrangement varying the effect of the enterprise agreement in relation to the employee and employer "in order to meet the genuine needs of the employee and employer" that complies with s 203.
78 The constraints imposed by s 417 on persons bound by an enterprise agreement or workplace determination, including the pecuniary penalty regime, are not in any way incompatible with the freedom to express political opinions. We reject the proposition that the constitutional freedom requires that a relevant person be at liberty to express political opinions at any time and place of his or her choosing, regardless of other obligations. Nothing in the appellants' submissions leads to the conclusion that the chosen means for achieving the relevant purpose impinge adversely upon the system of representative and responsible government. We see nothing in the imposition of a pecuniary penalty up to the prescribed maximum amount which would so impinge. It may be that these considerations are more relevant to the third question than the second.
79 The appellants seem to rely heavily upon passages in the reasons of McHugh J in Coleman v Power (2004) 220 CLR 1. In that case, McHugh J concluded that the test of inconsistency applied to both the purpose of the legislation and the means adopted for achieving that purpose. However his Honour's view as to inconsistency appears at [91] as follows:
In determining whether a law is invalid because it is inconsistent with freedom of political communication, it is not a question of giving special weight in particular circumstances to that freedom. Nor is it a question of balancing a legislative or executive end or purpose against that freedom. Freedom of communication always trumps federal, State and Territorial powers when they conflict with the freedom. The question is not one of weight or balance but whether the federal, State or Territorial power is so framed that it impairs or tends to impair the effective operation of the constitutional system of representative and responsible government by impermissibly burdening communications on political or governmental matters. In all but exceptional cases, a law will not burden such communications unless, by its operation or practical effect, it directly and not remotely restricts or limits the content of those communications or the time, place, manner or conditions of their occurrence. And a law will not impermissibly burden those communications unless its object and the manner of achieving it is incompatible with the maintenance of the system of representative and responsible government established by the Constitution.
(Footnotes omitted.) (Emphasis added.)
80 We do not understand his Honour's reference to restriction on the time and place at which political discourse might occur as implying that there may be no reasonable restriction upon those matters where the relevant person has freely undertaken legal obligations to be elsewhere at a particular time. At [97] his Honour said:
When, then, is a law not reasonably appropriate and adapted to achieving an end in a manner that is compatible with the system of representative government enshrined in the Constitution? In my opinion, it will not be reasonably appropriate and adapted to achieving an end in such a manner whenever the burden is such that communication on political or governmental matters is no longer "free". Freedom of communication under the Constitution does not mean free of all restrictions. The freedom is not absolute or equivalent to licence. The zone of freedom conferred by the constitutional immunity is not, as Higgins J said, in discussing s 52 of the Constitution, an "Alsatia for Jack Sheppards", where law does not run. Communications on political and governmental matters are part of the system of representative and responsible government, and they may be regulated in ways that enhance or protect the communication of those matters. Regulations that have that effect do not detract from the freedom. On the contrary, they enhance it.
(Footnotes omitted.)
81 At [195] Gummow and Hayne JJ said:
In Lange, the Court unanimously held that "[f]reedom of communication on matters of government and politics is an indispensable incident of that system of representative government which the Constitution creates". That freedom is not absolute; "[i]t is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution". It operates upon the common law and also, in the manner identified by McHugh J in his reasons in this case, as a restriction on the legislative powers of the Commonwealth, the States and the Territories.
(Footnotes omitted.)
82 See also [256] per Kirby J.
83 In our view there is simply no question of incompatibility.
84 We turn to the question of proportionality. We are, of course, considering the section construed in the way identified above, imposing a penalty for a breach brought about by participation in a rally or march during working hours. At para 96 of their written submissions, the appellants contend that:
... [A] law in workplace relations legislation that prevents employees from engaging in any political action whatsoever, even where that action is unconnected to their work, (1) does not in fact have a rational connection to the purpose of the provision because it does not regulate the relationship of employers and employees, for the reasons set out at [83]-[91] above; (2) is not necessary, because a less restrictive alternative would be to only penalise workers for engaging in action that relates to employer-employee relations; and (3) is not adequate in its balance, insofar as the ability of employees to engage in political action directed towards the State government should not be sacrificed, on pain of civil penalty, for employers to improve efficiency in the workplace.
85 The purpose of s 417 is to ensure compliance by all relevant parties with the terms of the relevant enterprise agreement, so advancing achievement of the legislative objective set out in s 3. It is part of Ch 3 which is headed, "Rights and Responsibilities of Employees, Employers, Organisations, Etc". The appellants' basic proposition is that our construction of s 417 would not have a rational connection to the purpose of Ch 3 because, as they submit, it would prevent the employees, as and when and as often as they choose, from, during their hours of employment, engaging in political expression concerning matters unrelated to the employer/employee relationship. The proposition is plainly wrong. The limitation is upon an employee's failure or refusal to attend for, or to perform work in accordance with his or her obligations. By choosing to work for the employer in question, the employee chooses to perform functions pursuant to the terms of his or her employment, whether they be specified by statute, award, enterprise agreement or otherwise. In so doing, he or she makes a decision about the use of his or her time. If the purpose of the law is to ensure compliance with the terms of an enterprise agreement, then a restraint upon non-compliance plainly has a rational connection to that purpose. Further, we do not accept that the rally and march were unrelated to the appellants' employment. We have given our reasons for that view.
86 The appellants then submit that the law is not necessary in that there is an obvious and compelling alternative way of achieving the purpose. That alternative involves limitation of the imposition of penalties to conduct related to employer/employee relations. This submission is based upon the proposition that the purpose of the Fair Work Act - regulation of the rights and obligations of employers and employees - does not extend to regulating the consequences of industrial action involving a refusal by an employer or employee to observe the terms of the relevant industrial arrangements. We see no justification for such a narrow construction of the purposes of the legislation. We have already dealt with versions of the same argument arising in connection with the second question.
87 We should say something about the amount of the penalty. It is possible that the maximum penalty for a particular offence may be so high that one might question its underlying purpose. We were told that the maximum penalty for a natural person in the present case is $10,800. We find it impossible to conclude that such a maximum is, in any sense, disproportionate, given the potential cost to others, especially employers and others for whom the economic consequences of unilateral stoppages may be severe, of failure to comply with industrial obligations. A maximum penalty must reflect the wide range of circumstances to which the legislation may apply. Further, the distinction between political and industrial activity may often be difficult to identify. It is unlikely that such a distinction (which the appellants seek to rely upon) would facilitate achievement of the purpose of enforcing compliance with the terms of enterprise agreements in support of the broader objects of the Fair Work Act.
88 The appellants then submit that the law does not achieve an adequate balance between the importance of the purpose to be served and the restriction on the relevant freedom. More particularly, it is said that, "the ability of employees to engage in political action directed towards the State government should not be sacrificed, on pain of civil penalty, for employers to improve efficiency in the workplace". This rather florid submission highlights the lack of merit in the appellants' argument. It asserts that the existence of political discourse is dependent upon employees having an absolute right to engage in political communications as and when, and as often as they choose, at any time during their pre-agreed working hours, and for any length of time, without regard to industrial obligations. The expression, "for employers to improve efficiency in the workplace" demonstrates a complete disregard of the need for efficiency in order to survive in a commercial context, and the community's need to have effective and efficient suppliers of goods and services, all matters which engage the public interest. The submission also ignores the process prescribed in Pt 2-4 of the Fair Work Act for the making of, and terms to be included in, enterprise agreements, including the "flexibility terms" contemplated by Div 5 of that Part. Moreover, third parties can be significantly harmed by such conduct, including, for example, site owners and other contractors in building contract situations.
89 We conclude that the burden imposed by s 417 is reasonably appropriate and adapted to advancing its legislative objective. It is suitable, having a rational connection to the purpose of the provisions. It is necessary in that there is no obvious or compelling alternative, reasonably practicable means of achieving the same purpose, but having a less restrictive effect on political communications. It is adequate in the balance between the importance of the purpose served by s 417 and the extent of the restriction it imposes on such communications. Moreover, the employee is free to engage in political activities as and when it suits him or her in his or her own time. We see no impediment to the adoption of our preferred construction.