CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA v CURRAGH QUEENSLAND MINING LIMITED

Initiation of the bargaining period I have already set out the relevant parts of s 170MI of the Act, dealing with the initiation of a bargaining period, and s 170MJ which specifies the required particulars. It will be recalled the particulars required by para (e) of that section include "the proposed nominal expiry date of the agreement". It will also be recalled the CFMEU notice dated 11 March 1997 stated "the proposed nominal expiry date of the agreement is the date two (2) years from the date of the agreement's certification". Mr F Parry, counsel for Curragh, argues such a statement fails to comply with para (e); this can be done only by specifying a calendar date. He concedes it will normally be impossible for a party giving a notice under s 170MI to know how long it will be before the desired agreement comes into force (if ever); so specification of any particular date is likely to be a token exercise. But Mr Parry says this is what the paragraph requires. I do not agree. The purpose of s 170MJ is to ensure recipients of s 170MI notices are given basic information about the agreement proposed by the giver of the notice. Duration is obviously an important matter, but I do not see why duration cannot be specified by reference to the date of the agreement's commencement. This will usually be a more useful indication of duration than specification of a calendar date, in circumstances where the parties have no idea how long that will be after the agreement's commencement. If I had come to the opposite conclusion about that matter, I would still not have held the defect in the particulars vitiated the s 170MI notice. Shortly after the hearing of this case, the solicitors for the applicants drew my attention to a recent decision of a Full Bench of the Commission (Justice Giudice, Vice President McIntyre and Commissioner Holmes) in Community and Public Sector Union v State of Victoria (16 June 1998, not yet reported). This decision concerned initiation of a bargaining period. One matter argued by the respondent employer was that the s 170MI notice given to it was ineffective because the union failed to provide the particulars specified in s 170MJ(d) and (e) of the Act. It seems no attempt was made to provide those particulars; nonetheless, the Full Bench held the notice valid. The Full Bench said: "It was argued that if the particulars required by s.170MJ are not provided the s.170MI notice is invalid. We are not persuaded that MacBean's SDP's conclusion on this question was wrong. We think the approach to be adopted in construing s.170MJ involves a determination of whether the legislature intended that a failure to comply with the requirements would invalidate the notice. The intention is to be ascertained from the language of the relevant provisions, the objects of the Part and the objects of the Act. The nature and extent of a failure to comply with s.170MJ is also relevant. Support for these propositions can be found in Hatton v Beaumont & Ors [1977] 2 NSWLR 211, Tasker & Ors v Fullwood & Ors [1978] 1 NSWLR 20 and Victoria v Commonwealth (1975) 134 CLR 81 at 179-180. We would add two things to what his Honour said. Firstly, s.170MJ is designed to facilitate the bargaining process rather than to ensure the validity of the initiation of the bargaining period. We agree with Mr Kenzie's submission that s.170MI(2) makes it clear that it is the giving of the written notice which initiates the bargaining period. Nevertheless s.170MJ should be complied with. A party which fails to provide particulars is at risk if the Commission is required to exercise its discretion at a later point in the process e.g. under s.170MW(2)(a) or s.170MX(5)(e). Secondly, it appears that the failure to provide the particulars had no material effect on the negotiations in this case. Victoria did not draw attention to the omission until the CPSU asked the Commission to terminate the bargaining period, at which point any lack of particulars was of less relevance than it might earlier have been. In our view, the CPSU's failure to provide the particulars required by s.170MJ(d) and (e) did not invalidate the s.170MI notice." Senior Deputy President MacBean had drawn attention to the fact that s 170MJ states "the notice 'is' to be accompanied, rather than 'must'". He thought this implied the section is directory rather than mandatory and went on: "The purpose of s.170MJ is to provide the recipient of the written notice filed under s.170MI with certain information relating to the intentions of the initiating party in respect of the proposed agreement. However, s.170MJ does not require the initiating party to state the actual terms of the claims sought by it only that the matters be identified. The initiation of the bargaining period is triggered by the notice being served under s.170MI. The particulars under s.170MJ do not constitute part of the notice but are to accompany the notice." I doubt that the mandatory/directory dichotomy is now appropriate: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490 at 516. But otherwise I agree with the approach taken both by Senior Deputy President MacBean and the Full Bench of the Commission. It seems to me evident Parliament did not intend a failure to comply with the requirements of s 170MJ to vitiate a notice. Section 170MI(2) says the bargaining period "is initiated" by the giving of a notice stating the initiating party intends to try to make an agreement under Division 2 or 3 and have that agreement certified under Division 4. These are the essentials of a valid notice. Although the command of s 170MJ is important, and non-compliance may have the consequences mentioned by the Full Bench in the Victorian case, the section imposes a subsidiary obligation that does not affect the validity of the notice. I reject Mr Parry's submission that the CFMEU notice was ineffective to initiate a bargaining period. As I have indicated, there is no dispute about the effectiveness of the CEPU's notice. The notices of industrial action Having regard to my finding in respect of the first issue, 6 August 1997 is the critical date for consideration of the question whether the industrial action in which the employees were engaged was "protected action". It will be recalled s 170ML(2) of the Act makes certain action of employees "protected action" for the purposes of Division 8 of Part VIB of the Act but s 170MO(1) says any such action "is not protected action" unless the requirements of 170MO(2) are met. The requirement of that subsection, in respect of action by employees, is that "the organisation, or the employee who is a negotiating party, has given the employer at least 3 working days written notice of the intention to take the action"; that is, the particular action that is claimed to be protected action. It will also be recalled that s 170LF defines the term "working day" to refer to a day on which "employees normally perform work" in the relevant business or part of a business; if the business does not usually operate at weekends, for example, weekend days must be disregarded. The notices that were in operation on 6 August were those given on 29 July. The CFMEU notice of that day referred to industrial action in the form of a two week stoppage that would commence at afternoon shift on Friday, 1 August. The evidence does not reveal when this notice was received by Curragh. However, even assuming it was received on 29 July, it is obvious CFMEU did not give Curragh three working days' written notice of the intended action. Where a statute requires "at least" a certain number of days' notice to be given before an event occurs, this means clear (full) days: see Ayres v Chacos (1972) 19 FLR 468 at 469-471 and the authorities there cited. The computation of days must exclude both the day upon which the notice is given and the day when the event is to occur. Applying that rule to the present case, it is necessary to exclude from the computation both 29 July (when the notice was given) and 1 August (when the stoppage was intended to commence). These leaves only two days, 30 and 31 July. Mr Crawshaw argued the line of authority applied in Ayres v Chacos was inapplicable to this case because s 170MO(2) refers to "at least 3 working days' notice". The argument is that, by adopting the special term "working days", rather than the general term "days", Parliament intended to displace the general rule. I cannot agree. I think Parliament intended the word "days" to have its ordinary meaning, but also intended to exclude days not ordinarily worked in the particular business or part of a business. It is not appropriate to read "3 working days" as being the equivalent of 72 hours. This was the requirement under the pre-1996 legislation: see s 170PH of the Industrial Relations Act 1988. It seems a deliberate decision was made to abandon that requirement in favour of three working days and this was because of a desire to ensure three clear days' notice of the intended industrial action. The relevant CEPU notice was dated 31 July. It gave notice of a two week stoppage commencing at 3pm on the following day, 1 August. Even assuming Curragh received the notice on 31 July, it is apparent not even one clear days' notice was given. Mr Crawshaw argued the requirement of s170MO(2) was not mandatory. Because of its association with the now discarded mandatory/directory dichotomy, I prefer not to use the word "mandatory"; but the statute clearly indicates that, unless the required notice is given, particular industrial action is not "protected action" within the meaning of Division 8 of Part VIB of the Act. Section 170MO(1) says that action taken by an organisation of employees, or a member, officer or employee of such an organisation "is not protected action unless the requirements set out in subsection (2) are met". Compliance with those requirements is an essential ingredient in the concept of protected action. As the requirements of s 170MO(2) were not met in this case, either by CFMEU or CEPU, the industrial action taken by those of their members who were employed by Curragh was not protected action within the meaning of Division 8 of Part VIB of the Act. In an endeavour to avoid the difficulties to his clients stemming from the inadequate time allowed in their notices of 29 July, Mr Crawshaw placed reliance on their earlier notices of action. The first CFMEU notice was dated 16 April and took effect at nightshift on Sunday, 20 April 1997. The position is not clear but it is possible this notice gave three clear days' notice of proposed industrial action. However, it identified the proposed industrial action as "overtime bans, bans on the use of contractors, work-to-rule, stop-work meetings and rolling stoppages". That type of industrial action is different in kind from a complete cessation of work, which was the form of industrial action in place on 6 August 1997. Section 170ML(2)(b) of the Act requires "at least 3 working days' written notice of the intention to take the action". No doubt some latitude is permissible, having regard to the dynamics of industrial conflict, but I think the Act should be construed as protecting only industrial action of the same kind as that described in the notice. CFMEU's later notices all spoke of a "two (2) week stoppage"; thereby impliedly excluding a stoppage effective after the expiration of the two weeks. In any event, it seems these notices all shared the vice of failing to give three clear days' notice of the commencement of the two week stoppage. The initial CEPU notice of 16 August 1997 may also have satisfied the requirement of three clear days' warning of industrial action. But it described the proposed action, in some detail, in terms that assumed a general continuance of operations. Once again, this is action different in kind from a total cessation of work. None of the later CEPU notices gave three clear days' notice of the commencement of the relevant two weeks' stoppage. Neither applicant is able to use an earlier notice to overcome the problem sustained by the inadequate notice given of the two week stoppage commencing on 1 August. The stoppage that was in effect on 6 August was not "protected action" within the meaning of Division 8 of Part VIB of the Act. Orders If the industrial action being undertaken at 6 August was not "protected action", it was not a contravention of s 170MU(1)(b) for Curragh to threaten to injure its employees in their employment, or alter their position to their prejudice, partly because they were engaged in that action. Section 170MU has no application to the case. As this section is the foundation of all the applicants' claims to relief, the claims must fail. There is no advantage in my considering the form of relief that would have been appropriate had the claims been well-founded. The appropriate order is that the Application be dismissed. I certify that this and the preceding nineteen (19) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox

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