Reasoning
29 There is little in the extrinsic material which assists in the interpretation and proper construction of s 170ML. That section was introduced into the Act by the Workplace Relations and Other Legislation Amendment Bill 1996. The Explanatory Memorandum accompanying the Bill observed that the new s 170ML substantially re‑enacted the existing section s 170PG. The Explanatory Memorandum does little more than recite the terms of the new section. Section 170PG was introduced into the Act through the Industrial Relations Reform Bill 1993. Again, save for an observation on the right to strike to which I refer later (par 34), the Explanatory Memorandum which accompanied the Bill does little more than recite the terms of s 170PG.
30 I do not accept the Union's submission that in order for a lock out to come within the provisions of subss (3) and (4) of s 170ML it must constitute a total shutdown of an employer's business. Those provisions are not expressed in terms that employees are to be locked out from the whole of their employment in order for the provisions to be satisfied. In particular s 170ML(4) refers to an employer preventing employees "from performing work". It does not say that a lock out is a reference to an employer preventing employees from performing any work under their contracts of employment. This view is consistent with the observations of Marshall J in Lennie v Hawks (supra) at 22:
"Whilst s 170PG(4) of the Act [the predecessor of s 170ML(3)] does not require either the complete cessation of work or the physical exclusion of employees from the workplace, it demands a clear and unambiguous act by reference to which employees can know that they are locked out as a matter of fact."
This approach to the construction of the expression "lock out" in s 170ML(3) and (4) is consistent with the policy which lies behind the concept of "protected action" in s 170ML. The purpose of giving action or conduct the protection of "protected action" is to enable the bargaining party to engage in activities to further their industrial ends. In the case of a union or group of employees they are entitled to undertake any activity which comes within the scope of "industrial action" as defined in the Act which covers a considerable number of actions and activities: see s 4(1) of the Act. An employer has a lesser armoury. It can only deny its employees the opportunity to work. It would be a curious result in an industrial relations context if a union or employees could undertake the range of industrial action in the varying degrees of intensity which the definition of "industrial action" allows, yet the employer had to undertake an all‑or‑nothing approach - either full‑time work or no work at all. There is nothing in the provisions of Div 8 of Pt VIB of the Act which leads to, or requires, the conclusion that the lock out allowed by s 170ML(3) must be total. In the same way as the industrial action available to employees allows employees to place bans or limitations on the performance of particular aspects of their work, the imposition of a lock out allows an employer to limit or restrict the amount of work it will allow its employees to undertake.
31 By virtue of s 170ML(3)(b) a lock out can occur for the purpose of responding to industrial action by employees. Why should it be thought that the only response of an employer to industrial action in the nature of a ban or limitation on the performance of a particular aspect of work must be a response of total shut‑down - a response which might be thought in the particular context of limited industrial action to be a gross over reaction?
32 It is for this reason that I consider the reasoning in Kidd v Savage River Mines (1984) 6 FCR 398 and Amalgamated Society of Engineers (Perth Branch) v Millars' Karri and Jarrah Co (1902) Ltd (1907) 9 WAR 207 of limited assistance in the context in which the connotation of "lock out" arises for consideration. The Union submitted that in Kidd v Savage River Mines (supra) Gray J held that a strike required a complete cessation of work and that in Amalgamated Society of Engineers (Perth Branch) v Millars' Karri and Jarrah Co (supra) at 210‑211 it was held that a lock out was the converse of a strike. In the abstract, and as a matter of general definition, it may be said that in many situations and contexts a strike is a total withdrawal of labour and that a lock out is a total refusal of an employer to allow its workers to perform work. However that is not always the position.
33 In Kidd v Savage River Mines (supra) Gray J referred to a number of cases, which he explained or distinguished, where industrial action short of a complete cessation of work was characterised as a "strike". His Honour referred to Niceski v Dowell Australia Ltd (1981) 52 FLR 371 in which Smithers J said at 376‑377:
"It was made clear in Board of Fire Commissioners of New South Wales v. New South Wales Fire Brigade Employees' Union [[1953] AR (NSW) 622] that a cessation of work by employees acting in combination and a concerted refusal to carry out their well‑defined and recognised duties and work is a strike within the ordinary meaning of that work, notwithstanding that they are prepared to, and do, carry out some of their duties: see per Cantor J [[1953] AR (NSW) at p 629]."
In Kidd v Savage River Mines (supra) Gray J observed that in none of the cases to which he had referred had there been a reference to what was said by members of the High Court in McKernan v Fraser (1931) 46 CLR 343. In that case Dixon J (as he then was), with whom Rich and McTiernan JJ agreed, observed (at 360) that it was noticeable that:
"in most of the attempts to state what amounts to a strike, prominence is given to the cessation or relinquishment of work, or at least the failure to resume work after a nominal interruption or suspension."
However, earlier Dixon J had observed at 360:
"It is not easy to know what is necessary to constitute a 'strike'. The word 'does not represent any legal definition or description' (per Lord James of Hereford, Denaby and Cadeby Main Collieries Ltd v Yorkshire Miners' Association ([1906] AC 384, at p 405)); and perhaps it has no certain connotation which is settled or accepted."
Further, in Kidd v Savage River Mines (supra) Gray J referred to the judgment of Evatt J in McKernan v Fraser (supra) at 372‑378. But at 374 Evatt J said:
"As a consequence of this wide field of jurisdiction, there has been a tendency to regard everything which impedes the smooth carrying on of work in the industry as being, if done by employees, a strike or something in the nature of a strike, if done by employers, a lockout or something in the nature of a lockout. As a matter of course, there has been included in the denotation of a 'strike', every stoppage of work."
34 It should not therefore be assumed that in all industrial relations contexts the term "strike" connotes a cessation of all work. Indeed in the Explanatory Memorandum for the Industrial Relations Reform Bill 1993 it was said in relation to s 170PG (the predecessor of s 170ML):
"The action which is protected under section 170PG is defined by reference to industrial action. 'Industrial action' is defined in existing section 4 of the Principal Act. It includes bans, limitations and restrictions on the performance of work. The 'right to strike' at international law encompasses not only absence from work but also the broader range of industrial action including work‑to‑rule, go slows, and lock‑outs."
35 It is therefore of little assistance in the present context to refer to Kidd v Savage River Mines (supra) or to Amalgamated Society of Engineers (Perth Branch) v Millars' Karri and Jarrah Co (1902) Ltd (supra) at 210‑211 where McMillan J (with whom the other members of the Court agreed) referred to an earlier judgment where he had said:
"A strike may be defined as a refusal by the workers to continue to work for their employer unless he will give them more wages or better conditions of labor; a lock‑out is the converse of a strike; it is the refusal by an employer to allow his workmen to work unless they will accept his rate of wages or the conditions of labor he imposes."
A lock out may be the converse of a strike in a given case but the context will dictate the nature and extent of the strike and the nature and extent of the lock out. More particularly is this so when one finds, as in this case, a specific definition of lock out in s 170ML(4).
36 The present consideration of the connotation of "lock out" arises in the context to which I have referred - it is the only protected action which an employer may take by way of response to the whole panoply of activity or action available to a Union or employees which falls within the definition of "industrial action" in s 4(1). In that context, the meaning of "lock out" gains colour from the subject‑matter which the lock out is intended to support - claims made by the employer in respect of a proposed agreement, and the subject‑matter to which the lock out is intended to respond - industrial action by the employees whose employment will be subject to the agreement.
37 The employers also point to the definition of "lock out" in the Oxford English Dictionary (2nd ed) as being:
"An act of 'locking out' a body of workers; i.e. a refusal on the part of an employer, or a number of employers acting in concert, to furnish work to their operatives until certain conditions have been assented to by the latter collectively."
Although dictionary definitions provide a background to an understanding of the use of the expression "lock out" in s 170ML, they must be considered with caution because of the specific provisions found in subss (3) and (4) of s 170ML.
38 I do not accept the submission that subs (4) of s 170ML only applies where the employer prevents employees from performing work which they have a right to perform by virtue of the provisions of their contracts of employment. What is contemplated and provided for in subs (4) is a situation where an employer prevents employees from performing work which, if performed, would be performed under and would be governed by the terms of the contracts of employment. It was not in issue that when overtime is worked it is worked on the terms of, and subject to the provisions of, the contracts of employment. When overtime is worked it is not worked under or by reference to any contract other than the contract of employment nor is another contract created by implication.
39 The Union's submissions emphasised the contractual rights which the employees had in relation to their work - they had the right to work a particular number of hours but no right under the Award to work overtime. Overtime was a matter of grace and favour, it was said, for the employers to offer. This emphasis on contractual rights does not pay sufficient regard to what it is that the employees are being denied - not so much the work provided in their contracts of employment but rather any work, which if undertaken, is regulated and governed by their contracts of employment. It is significant that what s 170ML(4) contemplates is not the employer "preventing employees from performing their contracts of employment" but rather the employer "preventing employees from performing work under their contracts of employment".
40 Section 170ML(3)(b) makes it clear that to the extent that a lock out is reactive it has to be a response to industrial action by employees whose "employment will be subject to the agreement". It is that employment from which the employees are to be excluded; that is to say, any work which will be subject to their contracts of employment which includes any overtime which the employees are asked to work. Section 170ML(4) is not a limitation or restriction on this concept. It is exegetical of it. The reference in subs (4) to "performing work under their contracts of employment" is still a reference to work which, if carried out, is governed by those contracts. Insofar as subs (4) adds a gloss to subs (3) it is a gloss that any lock out, to come within the concept of "protected action", must not cause or result in a termination of the employees' contracts of employment.
41 I do not accept the submission of the Union that when s 170ML(4) refers to an employer "preventing" employees from performing work under their contracts of employment, the word "preventing" is being used in the sense of stopping or inhibiting something which, in the absence of intervention by the act of preventing, is going to happen. The Oxford English Dictionary (2nd ed) contains a number of definitions of "prevent", the most relevant, for present purposes, being:
To provide beforehand against the occurrence of (something); to render (an act or event) impracticable or impossible by anticipatory action; to preclude, stop, hinder. (A chief current sense)."
Another definition is:
"To stop, keep, or hinder (a person or other agent) from doing something."
The expression "preventing" in the context of s 170ML(4) involves the doing of an act which has the consequence that employees cannot perform work which, if performed, would be work performed under their contracts of employment. The concept of "preventing" in the context of s 170ML(4) is not limited to a situation of putting up a barrier or bar to something which is going to happen in the absence of some supervening event stopping it; it also covers a situation where something is stopped in circumstances where if it was allowed or granted it would occur in a particular way. I therefore reject the Union's submission that because overtime does not require any intervention from an employer to prevent it happening but rather requires the employer to require it be worked, there is no "preventing" within subs (4) of s 170ML when overtime is banned.
42 It may be accepted that the purpose of Div 8 in relation to protected action is to enable bargaining parties to engage in action which might otherwise expose them to actionable civil liability: Media Entertainment and Arts Alliance v Bundaberg Newspaper Company Pty Ltd (supra) at 159. But it does not follow that only actions or conduct which would otherwise be actionable at law are actions or conduct which are contemplated by the scope of the industrial action allowed to employees and their organisations under s 170ML(2) and the scope of lock outs allowed to employers under s 170ML(3). Section 170ML certainly "identifies certain action" in respect of which immunity from legal action is to be granted but it does not follow that action has to be otherwise actionable at law for it to fall within the scope of action which may be taken by employees and their organisations and employers under s 170ML.
43 I have therefore concluded that the subject‑matter of the notices and any conduct of the employers pursuant to or in accordance with those notices falls within the scope of the action and conduct which the employers are entitled to take under s 170ML(3) of the Act. As that action and conduct constitutes:
"a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, that is adopted in connection with an industrial dispute'
within sub‑par (c) of the definition of "industrial action" in s 4(1) the action and conduct is "protected action" under s 170MT of the Act.
44 I have therefore concluded that the question asked:
"Whether the Respondents' conduct pursuant to the notices comprising exhibit TCB6 to the affidavit of Toby Carl Borgeest affirmed on 16 February 2000 is protected action under s 170MT of the Workplace Relations Act 1996 (Cth)"
should be answered:
"Yes"
45 I will hear the parties as to whether any other orders or directions should be made or given.