Burswood Resort (Management) Limited v Communications, Electrical,... [2004] FCA 909 | Case summary

REASONS FOR JUDGMENT 1 The applicant has brought an application based on the provisions of s 170NC of the Workplace Relations Act 1996 (Cth) ('the Act') and seeks injunctive relief pursuant to s 170NG of the Act and s 23 of the Federal Court of Australia Act 1976 (Cth). The application seeks to restrain the respondent from engaging in industrial action as described in a 'Notification Pursuant To The Provisions Of Section 170MO of the Workplace Relations Act 1996' ('the Notification') dated and served on the applicant on 6 July 2004. It also seeks restraint in respect of engagement by the respondent in industrial action as defined by s 4 of the Act unless the respondent first serves on the applicant a further notice complying with the requirements of s 170MO and complies with s 170MP of the Act. 2 Associated with these claims the applicant sought interlocutory relief in the form of an injunction until final determination restraining engagement in industrial action as described in the Notification. These are the reasons why such relief was granted on 9 July 2004. 3 The applicant operates a resort comprising a casino, dome, hotel and convention centre. 4 On 5 September 2003 the respondent initiated bargaining for a State Industrial Agreement under s 42 of the Industrial Relations Act 1979 (WA). On 26 September 2003 the manager, employee and workplace relations, of the applicant held a meeting of the technical services employees advising them that the applicant would be offering them an Australian Workplace Agreement ('AWA'). On 8 October 2003 the State Secretary of the respondent forwarded to the applicant a copy of the State Unions Draft Industrial Agreement proposal. On 10 October 2003 the manager representing the applicant met with the technical services employees and offered them the AWA. On 28 November 2003 the first negotiation meeting was held between the applicant, the respondent and technical services employees. Further meetings were held on 12 December 2003, 18 December 2003, 22 January 2004 and 29 January 2004. A further negotiation meeting occurred on 26 February 2004 and 9 March 2004. 5 At a meeting on 15 April 2004 with technical services employees, the chief operating officer of the applicant advised those employees that the applicant was considering outsourcing the technical services area and that negotiations for a proposed State agreement would recommence if a decision was made not to outsource. If the decision to outsource was made, it was intended the commencement date for the contractor would be 30 June 2004. 6 On 6 May 2004 a further meeting was held with the technical services employees. At a further meeting with them on 25 May 2004, they were advised that on or before 8 June 2004 the applicant would decide whether to proceed with outsourcing the technical services area. On 9 June 2004 those employees were advised that the applicant had been unable to make the decision concerning outsourcing. On 18 June 2004 at a further meeting with those employees they were advised that a decision had been made and the applicant would be outsourcing the technical services area subject to obtaining the relevant State government approval. On 25 June 2004 the technical services employees were advised that a particular company had been appointed as the preferred tenderer. It is anticipated that the probity investigation of this tenderer will conclude by 1 August 2004. 7 On 28 June 2004 the manager of the applicant was served with a s 170MI Initiation of Bargaining Notice by the respondent. 8 On 6 July 2004 the chosen tenderer conducted a presentation to the technical services employees and advised them it would conduct interviews with each of them for vacant positions. 9 On 6 July 2004 the respondent served the applicant with a s 170MO notice advising of an intention to take industrial action on 10 July 2004. That notice read as follows: '… NOTICE IS HEREBY GIVEN that officers and employees of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and members of the CEPU employed by you intend to organise and engage in industrial action in accordance with the provisions applying to "protected action" set out in the Workplace Relations Act 1996. The particulars of this notice are as follows:

The intended industrial action will commence at first shift on Saturday, 10th July 2004 by strike action. The intended action will include engaging in action described below: The stoppage will continue for one week, where another meeting will occur to consider further action. If by the cessation of the industrial action specified above you as the employer, have not reached a mutually acceptable agreement with the CEPU, further industrial action by CEPU members will occur. That industrial action will include bans, limitations, and/or further cessation of work, including rolling stoppages. The extent to which the industrial action occurs depends on your response to the demands made by the CEPU and its members. …' 10 Section 170MO(1) provides that any action taken as mentioned in subs 170ML(2) is not protected action unless the requirements set out in s 170MO(2) are met. Relevantly those requirements are that the organisation proposing to take the action has given the employer at least three working days written notice of the intention to take the action. The action referred to in s 170ML is the act of engagement in industrial action. Section 170MO(5) provides that a written notice or other notification under the section must state the nature of the intended action and the day when it will begin. 11 In Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463. Wilcox and Cooper JJ (with whom Burchett J agreed on this issue) said in an obiter statement that the purpose of s 170MO(5) was designed to ensure that industrial disputants who are to become affected by protected action, in relation to which the usual legal rights are significantly diminished, are at least able to take appropriate defensive action. Accordingly, they considered it necessary for the parties to describe the intended action in ordinary industrial English. They considered that a notice which referred only to 'bans and rolling stoppages', without any indication of the nature of the bans or the location of the rolling stoppages, did not adequately disclose 'the nature of the intended action'. 12 Davids case was considered and applied by Carr J in Burswood Resort (Management) Ltd v Australian Liquor, Hospitality and Miscellaneous Workers' Union [1999] FCA 1443 where he considered that what the Full Court had said in relation to s 170MO(5) was highly persuasive. In the circumstances before him, his Honour found there was a serious question to be tried as to whether the notice complied with the section. There, the applicants had complained that the notice did not say whether the stoppages at work were to be total stoppages or for a number of minutes in each hour or whether they were to be rolling stoppages. Further, it was complained that the description 'stoppages at work' did not convey whether the whole of the applicant's resort was to be involved or whether the stoppages were to be confined to one or other of its various areas of business which included, as they do now, the casino, restaurants and other businesses. Carr J was satisfied that there was a serious question to be tried on whether the description 'stoppages of work' to sufficiently described the nature of the intended action. 13 Here, the applicant says that there are three features of the s 170MO notice which give rise to serious issues to be tried. The first is that the notice is ambiguous as it refers to 'strike action' commencing at first shift on Saturday, 10 July 2004 but then goes on to state that 'the stoppage will continue for one week'. It is said it is therefore unclear whether the industrial action will involve a total withdrawal of labour or merely stoppages throughout a working day for a period of one week. Secondly, the notice goes on to identify some particular forms of industrial action including the strike action and stoppages in the form of bans, limitations and/or further cessation of work, including rolling stoppages. Thirdly, the notice is not referable to employees in the particular area of the technical services division but refers generally to members of the respondent. For the respondent it was said that the notice should only be understood as referable to employees in the particular area of the technical services division when the notice is considered in the context of the negotiations between the parties. However, I agree with the submission for the applicant that the question presently to be considered is whether the notice was in a form complying with the requirements of s 170MO. 14 I therefore accept the submission for the applicant that the adequacy of the notice of intention to take industrial action raises serious issues to be tried. 15 The applicant's case also relied upon the failure of the respondent to negotiate with the applicant. However, the factual issues associated with that are not entirely clear and as it is not necessary for me to do so I do not rely on that limb of the applicant's case to find that there are serious issues. 16 In relation to the balance of convenience, it is said for the applicant that the respondent could potentially cause irremediable harm to the applicant's business. The submission is there is a much greater risk of causing injustice by not granting an injunction if the applicant establishes its case against the respondent than by granting an injunction if the applicant fails to establish its case against the respondent. 17 For the respondent it is said that the balance of convenience is affected by the fact that it is anticipated on 1 August 2004 the functions which the employees perform will be outsourced. There are, however, two answers to this. The first is that the application itself can be brought on and heard and determined, if necessary, on the basis of urgency in order to provide some time remaining before that occurs. The second is that it is open to the respondent to serve a notice which does comply with the requirements of s 170MO. There are, of course, questions which arise as to the course of action being pursued by the respondent in the face of the proposed outsourcing. However, none of those need to be addressed. 18 I consider that the balance of convenience in those circumstances favours the applicant. 19 Accordingly, I granted the interlocutory relief in the terms previously mentioned.

Burswood Resort (Management) Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

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