Fair Work Act 2009

s.418 - Industrial action

Alleged industrial action at Burswood Resort (Management) Limited.

[1] In early November each year there is a horse race oft referred to as the 'race that stops a nation'. For some it is a melange of celebration and commiseration, and for others perhaps condemnation. Whatever the case, it is inevitably associated with gambling, dining, and consumption of whatever liquid may take one's fancy.

[2] On this occasion, it would appear United Voice is organising certain industrial action to take place at a prominent Perth entertainment venue on this day - 5 November 2019, Melbourne Cup Day.

[3] This decision concerns an application by Burswood Resort (Management) Limited (Crown Perth) seeking that the Fair Work Commission (the Commission) make orders in relation to that certain industrial action, which Crown Perth asserts United Voice is organising to take place on Melbourne Cup Day.

[4] The application has been made under s 418 of the Fair Work Act 2009 (the Act). In short, the essence of the application involves the resolution of a narrow issue - namely, whether a two-hour stoppage of work from 11:00am to 1:00pm is different in nature to a four-hour stoppage of work from 10:00am to 2:00pm. Crown Perth submits that if the answer is yes, then an order under s 418 of the Act must be issued.

[5] United Voice concedes it has informed its members to stop work for the period of 11:00am - 1:00pm on Melbourne Cup Day. However, the notice of employee claim action, dated 30 October 2019 (Notice 4),[1] stipulates a stoppage of the performance of work of four hours' duration. In respect to the date and time of the industrial action, Notice 4 stated: '[C]ommencing at 10:00am and finishing at 2:00pm, Tuesday, 5 November 2019.'

[6] Crown Perth submitted that United Voice is organising for its members employed by Crown Perth to take industrial action by stopping the performance of work from 11:00am until 1:00pm on Melbourne Cup Day. Therefore, the proposed action was not subject of a notice of employee claim action as required by s 414 of the Act, and would thereby be unprotected industrial action.

[7] The application was filed on Friday, 1 November 2019, and heard on the morning of Sunday, 3 November 2019.

[8] Employees were served with the application under s 418;[2] an application having been made on 1 November 2019 by Crown Perth for an order for substituted service. On 1 November 2019, I issued such an order.[3] Employees were therefore afforded an opportunity to be heard in the matter. However, Ms Lee, Counsel on behalf of United Voice, confirmed that no employees were seeking to be heard.

[9] Having considered the evidence and submissions in the context of the statutory obligations bearing upon the issues, I issued an Order[4] late in the afternoon of 3 November 2019, preventing unprotected industrial action pursuant to s 418(1) of the Act. I did so concurrently with these reasons for my decision.

[10] In short, Crown Perth owns and operates an integrated resort in Western Australia.[5] The resort consists of a licensed casino, convention centre with meeting rooms, a 2,300 seat theatre, two grand ballrooms, 39 restaurants and bars, retail facilities, a food court, multiple onsite paid car parks; and three hotels including the 397-room Crown Metropol Perth, the 291-room Crown Promenade Perth and the 500-room Crown Towers Perth.[6] Crown Perth purports to be the largest single site employer in Western Australia with a workforce of approximately 4,673, in addition to approximately 1,454 employees of contractors.[7]

[11] Ms Topperwien gave evidence that Crown Perth caters for more than ten million visitations every year and relies on its highly trained and professional staff. It is one of the most visited tourist sites in Western Australia.[8]

[12] There are 3,498 employees of Crown Perth who are covered by the Hospitality Sector WA United Voice - Crown Perth Enterprise Agreement 2016 (the Agreement).[9] The Agreement has passed its nominal expiry date. According to Ms Topperwien[10] the number of employees under each classification group in the Agreement are listed as follows (approximately as at 30 October 2019):

Miscellaneous (Environmental Services, Wardrobe, Warehouse)

Bargaining for a new Agreement and initial notices of employee claim action

[13] This application took place in the context of bargaining for a proposed enterprise agreement and some of the background to this matter is set out in the decision[11] of the Commission granting a protected action ballot order application of United Voice.

[14] On 29 October 2019, United Voice issued to Crown Perth three notices of employee claim action.[12]

[15] The first notice listed 15 different types of purported industrial action to take place between Saturday, 2 November 2019, and 6.00am on Wednesday, 6 November 2019.[13]

[16] The second notice listed 'an unlimited number of stoppages of the performance work between 30 minutes and up to 2 hours for all classifications listed at Schedule 3 of the Agreement' to take place between Tuesday, 5 November 2019, and 6:00am on Wednesday, 6 November 2019.[14]

[17] The third notice listed 'an unlimited number of partial stoppages of the performance of work in the form of covering table games floats for durations of between 5 minutes and 15 minutes' to take place between 5 November 2019 and 6.00am on Wednesday, 6 November 2019.[15]

[18] Crown Perth filed an application for orders under s 418 of the Act (C2019/6653) on the basis that, by failing to meet the notice requirements under s 414 of the Act, or because they had not been authorised by a protected action ballot as required by s 409(2) of the Act, a number of the proposed actions in the abovementioned notices were not employee claim actions and thereby not protected industrial action.[16]

[19] Upon United Voice giving undertakings to withdraw notice of the proposed actions which Crown Perth had taken issue with, the application (C2019/6653) was discontinued.

[20] On 30 October 2019 at 8:15pm, United Voice issued to Crown Perth a further notice of employee claim action, purportedly pursuant to s 414 of the Act (Notice 4).[17]

[21] Notice 4 stated the following:

To Crown Burswood Resort (Management) Limited T/A Crown Perth

United Voice, as a bargaining representative of employees who will be covered by a proposed enterprise agreement in relation to the Employer, gives notice of the intention of numbers of United Voice employed by the Employer to take the following claim action:

A stoppage of the performance of work of 4 hours' duration, by United Voice members in all classifications and departments named at Schedule 3 (Wages & Classifications Structure) of the Hospitality Sector WA United Voice - Crown Perth Enterprise Agreement 2016.

Date on and time at which industrial action will begin:

Commencing at 10:00am and finishing at 2:00pm, Tuesday, 5 November 2019....

[22] Ms Topperwien stated that at 6:20pm AWST on 31 October 2019, it was brought to Crown Perth's attention that a Facebook page called 'United at Crown' had a post on it from Ms Catalina Gonzalez Gill, Organising Director of United Voice, in which there was an uploaded PDF file containing 'information about the actions we will be taking this weekend and during Melbourne Cup!' Ms Topperwien continued that Ms Gonzalez had remarked 'share this info with your co-workers...'. Ms Topperwien produced a screenshot of the Facebook post.[18]

[23] Not long after having been informed of the Facebook post, Ms Topperwien said she received an email from Mr Emmet Molloy, Lead Organiser of United Voice, stating '[A]pologies but I'm not sure if someone sent this to you yet but this went out to members just before .' Attached to the email (sent at 6:35pm AWST on 31 October 2019) was a PDF file, which stated under the heading 'Melbourne Cup Action', 'Stop Work from 11am - 1pm'.[19]

[24] By letter dated 1 November 2019, United Voice wrote to Crown Perth confirming receipt of the application for an order stopping industrial action.[20] The letter stated:

We understand that Crown's position is that a four hour stoppage of work is protected but, if the action only lasts for a period of two hours, it will be unprotected.

United Voice does not agree with this position. The authorities indicate that industrial action is a dynamic process, and we believe that there is room for the union and its membership to be flexible within that four hour window. It is open to United Voice members to take part in the action whether they stop work for four hours or for less time.[21]

[25] It is now convenient to consider the relevant legislative regime. Division 4 of Chapter 3 - Part 3 of the Act provides relevantly as follows:

418 The FWC must order that industrial action by employees or employers stop etc.

(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:

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.

Note: For interim orders, see section 420.

(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;

(ii) an organisation of which a person referred to in subparagraph (i) is a member.

(3) In making the order, the FWC does not have to specify the particular industrial action.

(4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:

(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or

(b) which has not ended before the beginning of that stop period; or

The FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.

[26] United Voice accepts that industrial action is being organised, and is threatened, impending and probable. In that light and given the facts of the matter, the only issue between the parties was whether the industrial action being organised and threatened, would be protected industrial action within the meaning of the Act.

[27] Under s 408 of the Act, industrial action is protected industrial action for a proposed enterprise agreement if it is employee claim action as defined by s 409. That action is defined as follows:

(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.

(2) The industrial action must be authorised by a protected action ballot (see Division 8 of this Part).

(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) A bargaining representative of an employee who will be covered by the Agreement must not be engaging in pattern bargaining in relation to the agreement.

Industrial action must not relate to a demarcation dispute etc.

(5) The industrial action must not, if it is being organised or engaged in by a bargaining representative, relate to a significant extent to a demarcation dispute or contravene an FWA order that relates to a significant extent to a demarcation dispute.

Notice requirements after suspension order must be met

(6) If section 429 (which deals with employee claim action without a further Protected action ballot after a period of suspension) applies in relation to the industrial action, the notice requirements of section 430 must be met.

(7) If an employee organisation is a bargaining representative of an employee who will be covered by the agreement, the reference to a bargaining representative of the employee in subparagraph (1)(b)(i) of this section includes a reference to an officer of the organisation.

[28] This application relies upon, in part, the notice requirements as established in relation to protected industrial action by the common requirements and, in particular, s 414 of the Act. Section 414 is seen as a critical part of the scheme established by Part 3-3 Division 2 of the Act for the taking of protected industrial action - that is, industrial action which enjoys the degree of legal immunity conferred by s 415.[22] Section 413 identifies a number of 'common requirements' which must be satisfied in order for industrial action to be protected. Compliance with s 414 is established by s 413(4) as one of those common requirements, and is therefore a precondition for industrial action to be protected under the Act.[23]

[29] Relevantly section 414 reads:

(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.

(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.

(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.

(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.

(6) A notice given under this section must specify the nature of the action and the day on which it will start.

[30] Evidently, s 414(6) refers to the specification of 'the nature of the action.'

[31] There is no argument before me that Notice 4 is invalid. Notice 4 specifies the nature of the action, namely a stoppage of the performance of work of four hours' duration, and the commencement and finish times of the intended industrial action are detailed.

[32] The policy purpose of s 414 has been set out in a number of authoritative decisions of this Commission. The purpose being to give written notice of protected industrial action to provide the employer with an opportunity to take such steps as may be available in response to protect its interests.[24]

[33] The Full Bench in Theiss Pty Ltd v Construction, Forestry Mining and Energy Union[25] (Theiss) expressed that it had never been suggested that a requirement to give notice of protected industrial action is also to be understood as carrying with it an obligation for the employees to engage in the conduct specified in the notice.[26] In this respect, the Full Bench referred to the decision in Boral Resources (NSW) Pty Ltd[27] (Boral) and the following passage:

[14] There is no doubt that the notice requirements in s.414 are an important part of the scheme of the Act relating to industrial action and provide the employer with an opportunity to take defensive action as may be appropriate to protect its business and custom. Part of the consideration of what defensive action to take will include an assessment of the likelihood of the industrial action being taken. This might cover the possibility of early agreement being reached either as to issues in dispute or the process of addressing those issues as well as the possibility of some or all employees deciding for whatever reasons not to take part in the action. The assessment might also involve consideration of past practice and experience between the parties in relation to bargaining and the taking of industrial action. However there is no legislative requirement that industrial action once notified must be taken and, as the Senior Deputy President noted in her decision, it is not unusual in the current bargaining regime and that under the WR Act for notices to take protected industrial action to be withdrawn or not acted upon.

[34] In Boral the main issue for consideration in the appeal was whether a delay, restriction or limitation of work brought about by a misleading notice constituted industrial action for the purposes of the Act.[28] The Australian Workers' Union (AWU) issued notices of industrial action and had allegedly not adhered to them. Having notified the company that its members would not attend for work on 10 November, thereafter the AWU notified Boral on the morning of 10 November that the planned industrial action would not go ahead. Boral argued that the conduct of the AWU in issuing notices and not adhering to them had the result of delaying, limiting and restricting the normal work of employees at the quarry. However, the Full Bench concluded that there was insufficient evidence before the Commission at first instance to show that the conduct complained of amounted to industrial action.

[35] The circumstances in this matter differ to those of the authorities referred to above and relied upon by United Voice in their submissions. Again, the issue is not that of the validity of Notice 4. It is whether United Voice's organising of the industrial action outlined in the Facebook post, that is the industrial action that is threatened and probable, is of the nature of the action, set out in Notice 4.

[36] United Voice submitted that there was no doubt that it would be convenient for Crown Perth to know the precise time at which a stoppage of work will commence and finish however, the notice provisions did not require such specificity. Referring to the authorities of Davids Distribution Pty Ltd v National Union of Workers,[29] Boral Resources (NSW) Pty Ltd,[30] and Alcoa of Australia Limited v Australian Workers' Union,[31] United Voice submitted that s 414 did not require the notifier to disclose precise details of every future act planned by the union, and it is accepted that the reason for industrial action is to cause a degree of inconvenience and expense to the employer to advance claims during bargaining.

[37] The gravamen of United Voice's argument appeared to be that as long as the intended industrial action was a work stoppage of four hours or less, then in effect that industrial action would be protected, having met the notice requirements in s 414(6). United Voice submitted that at times the industrial action may need to be varied within the constraints of the notice of employee claim action, and that it would be an illogical outcome if its members were bound to take exactly four hours, meaning the stoppage of the performance of work of four hours' duration. When asked if it would make a difference if the threatened or impending industrial action were six hours duration, Counsel for United Voice answered in the affirmative. The reasoning being that the six hours would be in excess of the four hours set out in Notice 4.

[38] The issue in this matter can be reduced to answering whether a two-hour stoppage of work from 11:00am to 1:00pm, is different in nature to a four-hour stoppage of work from 10:00am to 2:00pm. Crown Perth submits that if the answer is yes, then an order must issue.

[39] Section 408 of the Act informs us that industrial action is protected industrial action for a proposed enterprise agreement if it is 'employee claim action' for the agreement. The other subparagraphs of s 408 are not relevant for present purposes.

[40] Section 409 of the Act defines the term 'employee claim action' and in doing so sets out that the common requirements in Subdivision B of Part 3-3 must be met. Section 413 sets out the common requirements and in doing so informs the reader that the notice requirements set out in s 414 must have been met in relation to the industrial action.[32] Section 414(4) provides that 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.

[41] In this case it is not disputed that the action in Notice 4 is a stoppage of the performance of work of four hours' duration, commencing at 10:00am and finishing at 2:00pm, on Melbourne Cup Day.

[42] Section 414(6) relevantly provides that a notice given under this section must specify the nature of the action and the day on which it will start. As observed, Notice 4 does this.

[43] However, Crown Perth contends that the industrial action that it is complaining of is not subject to a notice of employee claim action - namely Notice 4. It is complaining about the action of a stoppage of the performance of work for the duration of two hours, commencing at 11:00am and finishing at 1:00pm on Melbourne Cup Day.

[44] Turning to s 418 of the Act, Crown Perth submitted that it is well established that if it appears that industrial action that is not, or would not be, protected industrial action is threatened, impending, probable, or being organised, the Commission must order that the industrial action stop.

[45] In the Federal Court decision of Esso Australia Pty Ltd v The Australian Workers' Union,[33] (Esso) Buchanan J, with whom Siopis J agreed, stated:

[29] Nevertheless, the power of the FWC under s 418(1) is to order that the industrial action stop or not occur or not be organised, even though the FWC does not need to specify the particular industrial action (s 418(3)).

[30] Is it open to the FWC under s 418 simply to order that no industrial action (i.e. as defined by s 19), which is not protected industrial action, occur for a specified period (the stop period)? In my view, it is not.

[31] First of all, I see no reason to doubt that the FWC must, for the purpose of its own assessment, make some attempt to identify the existing or potential industrial action. Then it must form a view whether that existing or potential industrial action is or would be protected industrial action.

[46] Further on in his judgement, Buchanan J referred to the decision of Transport Workers' Union of New South Wales v Australian Industrial Relations Commission[34] citing Gray and North JJ at paragraph [39] - who had considered the operation of s 496, which Buchanan J considered sufficiently parallel with ss 418(1) and (3) of the Act:

It is also necessary to bear in mind that the duty of the Commission to make orders is confined by s 496(1) of the WR Act to orders that 'the industrial action stop, not occur and not be organised". The reference to "the" industrial action is a reference to industrial action that appears to the Commission to be happening, to be threatened, impending or probable, or to be in the process of being organised. It is necessary for the Commission to identify the industrial action that appears to it to be happening, threatened, impending or probable, or being organised, and to make orders that that industrial action stop, not occur or not be organised, as the case may be. Section 496(1) contains neither a duty nor a power to make orders that any act or omission that might possibly fall within the definition of 'industrial action' in s 420 of the WR Act stop, not occur or not be organised. The Commission's duty, and power, is limited to the industrial action that is the subject of the application before it. (Emphasis added).

[47] Critical to the determination of whether an order must be issued pursuant to s 418(1) is the identification of the existing or potential industrial action, and the making of a finding whether that existing or potential industrial action would be protected.[35]

[48] I find that the two-hour stoppage of the performance of work from 11:00am to 1:00pm on Melbourne Cup Day is probable, threatened, and is being organised by United Voice. So much was conceded by United Voice and was in any event, clear on the evidence before me.

[49] Concerning United Voice's contention that the Act enables variance of the industrial action in the constraints of the notice of employee claim action under s 414, I am unpersuaded that this is the case. In my view the reference to the 'stoppage of the performance of work of 4 hours' duration' is the specification of the nature of the action as contemplated by s 414(6). The 4 hours' duration cannot be cleaved from the 'stoppage of the performance of work' and replaced with an alternative duration. To allow otherwise would see the duration of the stoppage being altered and yet the argument would be that the nature of the industrial action remained unchanged.

[50] The correctness of United Voice's proposition that the industrial action it was organising and threatened was protected so long as the work stoppage was of a duration of less than four hours, is difficult sustain.

[51] United Voice confirmed that if it were organising a six-hour stoppage of the performance of work, this would not fall within the scope of Notice 4 because the six-hours was greater than the four-hours set out in the Notice. Clearly then the duration of the stoppage forms part of the nature of the action. Based on this reasoning, it would follow that a six-hour work stoppage would not be protected industrial action in the circumstances of this case because the common requirement in s 413(4) had not been met.

[52] The issue before me is not whether there was a requirement on United Voice to state the start and finish time of the industrial action in the notice of employee claim action.[36] However, United Voice did. In the decision of the of Alcoa of Australia Ltd (CAN 004 879 298) v Australian Workers' Union,[37] Barker J accepted that there may well be an argument, particularly in the circumstances of a particular case, that in specifying the 'nature of the action,' having regard to a particular action, it may in some cases be necessary to say something about the commencement and/or conclusion times of the industrial action. What is evident from this passage is the contemplation that a stated start and finish time can, in and of itself, form part of the 'nature of the action.'

[53] Consistent with the policy purpose of the notice requirements in s 414, Crown Perth, upon receipt of Notice 4, may take whatever defensive action is available to it, based upon what it has been notified will happen. Crown Perth submitted that the nature of those defensive steps will almost certainly be different in nature, scope and extent, as between a four-hour work stoppage commencing at 10:00am and a two-hour work stoppage commencing at 11:00am.

[54] I have observed that the Full Bench in Theiss expressed that it had never been suggested that a requirement to give notice of protected industrial action is also to be understood as carrying with it an obligation for the employees to engage in the conduct specified in the notice. That is the notice can be withdrawn or, as was the case in Boral, the industrial action may simply not be taken. However, while it is the case that an employee is not bound to take the industrial action once a notice of employee claim action has been given under s 414(1) of the Act, the industrial action that is being threatened and in this case organised, must, in my view, accord with the nature of the action specified in the notice of employee claim action.[38] In circumstances where it does not then it is open to find that the potential industrial action is not protected industrial action.

[55] Consequently, I find that the two-hour stoppage commencing from 11:00am and concluding at 1:00pm on Melbourne Cup Day is probable and is not covered by or the subject of Notice 4, and is therefore not protected industrial action. It is being threatened and organised by United Voice.

[56] Given my findings and the operation of s 418(1) of the Act, I am obliged to issue an Order[39] in this matter. The Order made is directed at dealing with the findings that unprotected industrial action is threatened and being organised. The Order also contains machinery provisions to ensure that the relevant employees, and United Voice representatives who had responsibility for the industrial interests of the relevant employees, were aware of its terms.

[1] Exhibit A1 KT-6 Notice of Employee Claim Action dated 30 October 2019 (Notice 4).

[2] Statement of Evidence of Kylie Jade Topperwien re substituted service.

[5] Statement of Evidence of Kylie Jade Topperwien (Topperwien Statement) at [11].

[11] United Voice v Burswood Resort (Management) Ltd T/A Crown Perth [2019] FWC 6719.

[13] Topperwien Statement at [18]; Exhibit A1 KT-1.

[15] Topperwien Statement at [20]; Exhibit A1 KT-3.

[19] Topperwien Statement at [26]; Exhibit A1 KT-8.

[20] Topperwien Statement; Exhibit A1 KT-9.

[21] Topperwien Statement; Exhibit A1 KT-9.

[22] Theiss Pty Ltd v Construction, Forestry Mining and Energy Union [2015] FWCFB 5530 at [65].

[24] Theiss Pty Ltd v Construction, Forestry Mining and Energy Union [2015] FWCFB 5530 at [75].

[25] [2015] FWCFB 5530.

[26] Theiss Pty Ltd v Construction, Forestry Mining and Energy Union [2015] FWCFB 5530 at [75].

[27] [2010] FWAFB 1771.

[28] [2010] FWAFB 1771 at [5].

[29] [1999] FCA 1108; [1999] 165 ALR 550.

[30] [2010] FWAFB 1771.

[31] [2010] FCA 278.

[32] Fair Work Act 2009 (Cth) s 413(4).

[33] [2016] FCAFC 72.

[34] [2008] FCAFC 26; (2008) 166 FCR 108.

[35] [2008] FCAFC 26; (2008) 166 FCR 108.

[36] Alcoa of Australia Ltd (CAN 004 879 298) v Australian Workers' Union [2010] FCA 278 at [33].

[38] Fair Work Act 2019 (Cth) ss 413(4) and 414(6).

[39] PR713959.

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