Communications, Electrical, Electronic, Energy, Information, Postal,... [2010] FCA 1350 | Case summary

The issues 35 The short point to be decided in the aspect of the proceeding currently under consideration is whether the notices given by the respondent on 16 June 2010 and 30 June 2010 set out at [14] and [19] of these reasons satisfy the requirement that a notice under s 414(6) "must specify the nature of the action and the day on which it will start". If not, the respondent has failed to comply with s 414(5) as the "written notice" does not contain the necessary content and thus the respondent has failed to satisfy s 413(4) with the result that the respondent has not engaged in "employer response action" within the meaning of s 411 and with the further result that the respondent's s 19(1)(d) industrial action (that is, the lockout action) is not "protected industrial action" under s 408 of the Fair Work Act. 36 The applicant contends that if the written notice required by s 414(5) does not comply with s 414(6) the notice is rendered invalid. Section 170MO(5) of the Workplace Relations Act 1996 (Cth) contained a relevantly applicable (in the context of "protected action") notice provision that said that "[A] written notice … under this section must state the nature of the intended action and the day when it will begin". The Workplace Relations Act was amended in 2005 which had the effect of renumbering many of the provisions of that Act (by operation of Schedule 1 of the 2005 Amending Act). The renumbered s 441(6) continued the notice provision in the same language as that set out in the earlier s 170MO(5). The Explanatory Memorandum for the Fair Work Bill 2008 (para 1671) in relation to clause 414 of the Bill (which became s 414 of the Fair Work Act) records that "[B]efore an employer engages in employer response action for a proposed enterprise agreement, the employer must give written notice of the intended industrial action to each bargaining representative of an employee and take all reasonable steps to notify its employees of the action". 37 The formulation of the notice requirement in s 414(6) of the Fair Work Act is slightly different from the earlier formulation in the Workplace Relations Act. The current provision says that a notice given under the section must specify the nature of the action and the day on which it will start whereas the earlier formulation said that a notice given under the section must state the nature of the intended action and the day when it will begin. 38 No argument has been addressed to the Court on the question of whether this difference in language conveys a different Parliamentary intention to that which prevailed under the earlier Act. However, the applicant contends that the notice must identify "with precision" the nature of the action and the day on which it will commence and authorities that dealt with s 170MO and s 441(6) remain authoritative. In particular, emphasis is given to the observations of Wilcox J in Construction, Forestry, Mining and Energy Union v Curragh Queensland Mining Limited [1998] FCA 1231 at p 19 that compliance with the notice requirements of s 170MO(2) was regarded as "an essential ingredient in the concept of protected action" and as the notice requirements were not met in that case by either the CFMEU or the CEPU, the industrial action taken by members of those Unions was not protected action within the meaning of the Workplace Relations Act 1996 (Cth). 39 The applicant says that the reasoning in relation to s 170MO(2) (although concerned with whether three working days' notice had been given) as to the essentiality of that notice provision applies with equal force to the notice provision under s 170MO(5) and then s 441(6) and, in the present context, s 414(6) of the Fair Work Act. That follows, it is said, because a compliant notice under the earlier provisions went to the question of whether action was "protected action" and a compliant notice under s 414 also goes to the question of whether "employer response action" is protected industrial action with the consequential immunisation from interference with rights: ss 408, 411, 413(4) and 415(1). In other words, the underlying rationale remains good. 40 There are two grounds advanced by the applicant as to the invalidity of the notice given by the respondent on 16 June 2010 and one ground in relation to the notice of 30 June 2010. 41 As to the first notice, the applicant says that the notice is not within the scheme of the Fair Work Act because an employer is not entitled to commence or take employer responsive action until the employees have taken their action to which the employer action would be responsive. In other words, the respondent employer could not give a notice of industrial action (in this case a lockout notice) until the strike action the subject of the notice from Mr Simpson of 15 June 2010 ("RF3") had started or, as the applicant further contended, "industrial action of some sort had started" (T 15, l 22-27; T 16, l 1631). Threatened action would not be sufficient to justify employer responsive industrial action. 42 There is no authority to which counsel for the applicant could refer the Court for the proposition that the respondent employer could not issue a notice of proposed employer responsive action until the employees had first taken employee claim action. 43 The second argument as to invalidity applies to both the first and second notices. 44 This second argument is described by the applicant as the primary point between the parties. The applicant says that each notice simply says that "[I]n response to the industrial action threatened by you, we put you on notice that any employee that engages in such action will be the subject of an indefinite lockout". The difficulty is said to be that neither letter identifies the day on which the responsive action will take place or when it will start. The short point is, according to the applicant, that the addressee simply cannot tell from the notice when the lockout is going to start. Therefore, the addressee is not given an opportunity to confront the possibility that particular action will occur at a particular time and then take steps to address their possible reaction to the proposed employer response action. Since proper specificity of the day when the nominated action will begin is not to be found within the notice, an essential feature of the notice is missing and it follows that the notice fails as an effective notice for the purposes of s 414(5). 45 In response to these submissions the respondent says this. 46 The applicant issued on 15 June 2010 a notice of intention to take industrial action. That notice foreshadowed the possibility that industrial action would be taken in the form of a one day stoppage of work commencing at the ordinary starting time on Monday, 21 June 2010. The notice also foreshadowed the possibility that employee industrial action would start at the ordinary starting time on Tuesday, 22 June 2010 and continue for that day. One day stoppages were also foreshadowed for 23 and 24 June 2010 commencing at the ordinary starting time on each of those days. 47 It is common ground between the parties that even though the applicant gave the notice of 15 June 2010 foreshadowing the sequence of one day stoppages, it remained open, to those who might take that industrial action, to elect not to engage in any of the foreshadowed industrial action or merely some of it. The question of what industrial action might ultimately occur could not be determined by the respondent until the events fell in. The employees might engage in one or more of the foreshadowed stoppages or none of them. 48 The respondent says that upon receipt of the notice of an intention to engage in the foreshadowed conduct, it was open to the employer to organise and engage in industrial action as a response to industrial action by the employees, having regard to the statutory integers of s 411. 49 On the question of the entitlement of the respondent to give its written notice of proposed employer response action, the position seems to me to be this. 50 In order to satisfy the common requirements, the employer was required to satisfy the notice requirements of s 414. The notice requirement under s 414(5) casts an obligation upon the employer to give written notice (as reflected in the quoted section at [34]) before the employer engages in employer response action. The giving of the notice is not predicated upon employee claim action occurring. The giving of the notice is a precondition to the employer ultimately engaging in its responsive conduct. Section 408 contemplates that industrial action taken by an employer is protected industrial action provided the responsive action satisfies the integers of s 411. The structure of Division 2 of Chapter 3, Part 33 contemplates employee claim action for a proposed enterprise agreement which might be protected industrial action having regard to s 409, and responsive action by an employer which satisfies s 411. Notices are to be given by either side before engaging in the conduct said to fall within the statutory requirements of protected industrial action. Consistent with the structure of the Act, responsive employer action will involve receipt of a notice, the organisation of proposed responsive action, notice of that proposed action to the bargaining representative (and employees) and, subject to what might emerge by reason of particular conduct occurring (or not occurring), the engaging by the employer in the foreshadowed conduct. 51 An employer is not required to wait until the foreshadowed employee claim action occurs before standing is conferred upon the employer under the Fair Work Act to give a notice of foreshadowed employer response action. In fact, the Explanatory Memorandum for the Bill at para 1671 describes the obligation of the employer as one of giving written notice to the relevant persons of "intended industrial action" and nothing in Division 2 of Chapter 3, Part 33 suggests that notification of "employer response action" cannot be given until the employees engage in the conduct the subject of a notification of "employee claim action". 52 As to the second matter, the respondent contends that each notice properly identifies the day on which the foreshadowed action will start, for two reasons. First, each notice must be considered, it is said, in conjunction with the notices issued by the applicant. The notices do not stand alone. The notices issued by the respondent are said to directly engage each of the applicant's notices. It follows, it is said, that the content of the respondent's notices must be assessed by the extent to which the notices adopt or engage the description of conduct in each notice to which the challenged notices respond. 53 Second, in reliance upon the observations of Justice Giudice (President), Senior Deputy President Acton and Commissioner Whelan in Telstra Corporation Limited v Communications, Electrical, Electronic, Energy, Information, Postage, Plumbing and Allied Services Union of Australia [2009] FWAFB 1698 (described as Telstra), the adequacy of the notice must be judged having regard to the "purpose of the notice requirement and the relevant circumstances, in particular the nature of the employer's undertaking" [12]. 54 The proper construction to be given to the respondent's notices of 16 June 2010 and 30 June 2010, in context, is this. 55 By the Statement of Agreed Facts, the respondent conducts a business of inspecting power lines throughout Queensland so as to determine whether vegetation needs to be cleared away from power lines no doubt for reasons of access, safety and maintenance. The respondent's employees travel throughout the State of Queensland to inspect power lines (and, probably more accurately described, power line easements) to determine the state of vegetation growth and, where appropriate, effect pruning or removal of particular vegetation. These activities require employees to remain away from home. There are five persons who were at all relevant times members of the applicant and employed by the respondent although the respondent employs, in the conduct of its business, persons who are also eligible to be members of the applicant. 56 The Statement of Agreed Facts does not convey any sense of the scope or scale of the respondent's undertaking although it may properly be inferred that an enterprise that provides vegetation inspection services and pruning and removal services is not a large scale corporation. In Telstra at [12] the Full Bench observed that the purpose of the notice requirement is to give the "recipient" (put more generally) of the notice an opportunity to respond to the action by making relevant preparations or considering a particular response. That purpose is entirely consistent with the observations about the purpose of notice provisions expressed by the Full Court of the Federal Court in Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999) 91 FCR 463 at [87]. In Telstra at [12], the Full Bench also noted that "[w]hether the notice is adequate may depend on the nature of the employer's operations including their size, the number of employees, the number of locations, the time at which the action is to occur and the employees potentially taking the industrial action". In Telstra, the question in issue was the adequacy of notice given on behalf of employees in circumstances where Telstra employed 34,000 employees. 57 In the context of discussing the adequacy of the notice in describing the proposed action, the Full Bench at [16] observed that it is implicit that the description of the action should be sufficient to put the employer (in that case) in a position to make reasonable preparations to deal with the effect of the industrial action. In examining the description "indefinite stoppages" used in the notice (as a description of the proposed action), the Full Bench at [14] noted that the phrase "indefinite stoppages" refers to a concept which is well recognised in workplace relations of a stoppage which is unlimited in time at its commencement. The Full Bench rejected Telstra's suggestion that a notice using the term "indefinite stoppages" could never comply with s 414(6) of adequate specification of action. Whether a notice does comply "will depend on the context in which it appears in the notice and the surrounding circumstances": [14]. 58 These observations suggest that the adequacy of a notice for the purposes of s 414(6) must be examined in context. An assessment of adequacy must take account of all the circumstances and examine expressions used in the context of whether the concepts embodied in the expressions are well recognised in workplace relations. The adequacy of the notice must take account of the practical applied circumstances of the workplace and whether the purpose of a notice is served by giving the addressee an understanding of what is contemplated and when it will occur so as to provide the recipient with an opportunity to consider his or her position and act or respond in a particular way (or as in this case, engage in the foreshadowed conduct set out in the notices "RF3" and "RF7" to which the challenged notices respond). 59 By the notice of 16 June 2010, the respondent gave notice to the bargaining representative (and telephoned each of the employees and communicated to them the information contained in the lockout notice (para 13 of the Statement of Agreed Facts)) that in response to the industrial action foreshadowed by the bargaining representative, "we put you on notice that any employee that engages in such action will be the subject of an indefinite lockout". That notice responded to an intention on the part of employees to take industrial action (withdraw labour by means of a one day strike) commencing at the ordinary starting time on Monday, 21 June 2010 and thereafter similar strikes on 22, 23 and 24 June 2010. The respondent's notice was expressly responsive to that sequence of threatened industrial action. The notice said that any employee that engages in such action would be the subject of an indefinite lockout. The term "indefinite lockout" is a term like "indefinite stoppage" in the sense that it is a well recognised concept in workplace relations. The notice links an indefinite lockout to an employee that engages in the industrial conduct set out in "RF3". Properly read, the notice says "if you engage in that activity, you will be indefinitely locked out". 60 It is true to say that the notice of 16 June 2010 does not say that an indefinite lockout "will start as from the ordinary starting time on Tuesday, 22 June 2010 if you engage in a one day stoppage commencing at the ordinary starting time on Monday, 21 June 2010". Nor does the letter say that an indefinite lockout will start as from the ordinary starting time on Wednesday, 23 June 2010 if an employee engages in a one day stoppage on Tuesday, 22 June 2010 (or on the earlier day). Similarly, the letter does not tell an employee that if he (or she) engages in a one day stoppage commencing at the ordinary starting time on Wednesday, 23 June 2010 or Thursday, 24 June 2010 an indefinite lockout would apply from the day following either of those days. 61 In a practical applied sense, the respondent's notice of 16 June 2010 takes up the possibility of an employee engaging in any of the action recited in "RF3" and says that if an employee engages in such action, that employee will be "the subject of an indefinite lockout". It seems to me that the respondent's notice is telling the addressee that if the conduct, (that is, any of the conduct in "RF3") occurs, the employee engaging in any such conduct will be confronted with a response by the employer of indefinitely locking out that employee. 62 Taken in conjunction with "RF3", the notice tells the addressee that if or she engages in a one day stoppage of work commencing at the ordinary starting time on Monday, 21 June 2010 an indefinite lockout will then apply and its operation takes effect at the next moment in time when that employee would seek to engage in work in the relevant workplace in accordance with the normal working conditions and arrangements for that employee. Although the respondent's notice does not, in terms, spell out the sequence of possibilities triggered by an employee engaging in one or more of the four possibilities, the respondent's notice seeks to deal with the sequential possibilities by saying, in effect, "if you do any of those things you will be subject to a lockout" and the practical way to read the letter is to construe it as saying "if you do any of those things you will be subject to an immediate lockout which starts on the next shift or the next ordinary starting time after the strike conduct on one of the identified days. 63 An addressee is not left in doubt about the employer's response action. The respondent's notice is not saying, as the applicant contends as a possibility: "if you engage in that action you will be subject to an indefinite lockout in one or two or three weeks' time or some other time". The notice is putting the addressee on notice that if any of the action in "RF3" occurs it will trigger a response by the employer in the form of a lockout for that employee immediately following the strike conduct undertaken. 64 In assessing the adequacy of the respondent's notices it is important to remember two things. First, the question of whether the notices tell the addressee the day when lockout action will start is largely a matter of impression and an assessment of how the notices strike the reader in the context of the applicant's notices. Second, the respondent's notices are responsive notices. They engage the applicant's notices. The position might be different if the notices from the respondent had been notification of initiating industrial action. However, the notice is a document that tells the bargaining representative and employees, of the action the employer proposes to take, in response to the foreshadowed employee claim action. The assessment of the adequacy of the notice must take into account the interdependency, in a practical sense, between the notices given by the applicant on behalf of the employees and the notices given by the respondent of intended employer response action. 65 The same considerations apply in relation to the respondent's notice in response to "RF7". 66 For these reasons, I am not satisfied that the respondent's notice is invalid. The notice puts the addressee on notice of the day when responsive action will start by telling the addressee that his or her conduct undertaken on any one of the nominated days will provoke or trigger an indefinite lockout starting on the next shift or the next ordinary starting time after the strike conduct within the field of conduct nominated in the applicant's notices. 67 Accordingly, the application is to be dismissed with costs. I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Pinnacle Career Development Pty Ltd

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