Fair Work Commission|2022-03-02

Nyrstar Port Pirie Pty Ltd T/A Nyrstar Port Pirie v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2022] FWC 449 (2 March 2022)

s.418 - Application for an order that industrial action by employees or employers stop etc.

Nyrstar Port Pirie Pty Ltd T/A Nyrstar Port Pirie

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

Application for an order that industrial action by employees stop - specificity of notice - held notice not sufficient - order issued preventing industrial action.

[1] On 25 February 2022, Nyrstar Port Pirie Pty Ltd T/A Nyrstar Port Pirie (Nyrstar or the employer) made an application under section 418 of the Fair Work Act 2009 (Cth) (the Act) seeking orders that industrial action notified by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) be ordered to stop as it was not protected action.

[2] The matter was allocated to my Chambers and Directions were issued for lodgement of submissions and witness statements by the parties.

[3] A Hearing was conducted, at 2.00pm (SA time) on 25 February 2022, by telephone. A recording of the audio was made.

[4] Nyrstar was represented by Ms Susan Zeitz (of counsel). Permission was granted unopposed on the basis that the proceedings would be more efficiently conducted. Mr Paul Scudds represented the CEPU.

[5] The background to this matter is as follows:

Nyrstar has been engaged in bargaining for an Agreement with CEPU as bargaining representative for its members engaged as electricians at the Port Pirie site.

• On 15 December 2021, the Commission made a Protected Action Ballot Order (PABO)[1].

On 2 February 2022, the results of a protected action ballot were published and authorised the CEPU and its members to take protected industrial action.

On 22 February 2022, the CEPU served Nyrstar with five notices of intention to take industrial action at the Ellen Street Port Pirie site.

[6] The application raised two objections.

[7] The first issue was whether the extended notice required by the PABO in respect of certain parts of the plant had been met. The second issue concerned compliance with s.414(6) of the Act.

[8] The first issue was resolved during the Hearing by the CEPU providing an undertaking that actions is respect of which the extended notice requirements had not been met would be deferred until the notice requirements were met.

[9] As a result, the sole matter for determination is the adequacy of the notices and in particular whether they meet the requirements of section 414(6) of the Act.

[10] At the conclusion of the Hearing on 25 February 2022, I determined that I was not in a position to issue a decision. This was due to a need to consider what appeared to be a diversity of decisions on the matter to be determined. I was of the view that Nyrstar had an arguable case and that the balance of convenience suggested that it would be preferable to stop the action for a short period, with the possibility that the CEPU would later be permitted to take the action, rather than the reverse, where action is taken and is later prevented. I determined that it was appropriate (and in the public interest) to issue an interim order stopping the industrial action[2].

[11] I turn to the evidence before me which is largely uncontested.

[12] The following material was received from Nyrstar:

Form F14 Application (including written submissions).

• A copy of the Consent Protected Action Ballot Order (PABO) in matter B2021/1226 dated 15 December 2021[3].

A copy of AEC Declaration of results dated 2 February 2022 in respect of Consent PABO in matter B2021/1226.

Copies of 5 separate 'Notices by Bargaining Representative of Employees of Intention to take Employee Claim Action (s.414)' dated 28 February and 1,2,3,4 March 2022 (the Notices).

• Statement by Mr Stewart Iley, Superintendent, dated 24 February 2022[4].

[13] No documentary material was submitted by the CEPU.

[14] Mr Iley gave evidence at the Hearing and was cross-examined. Mr Iley advised that Nyrstar was presently engaged in a 16-day shutdown and that the CEPU members were critical to the process due to the need to isolate electrical circuits to allow others to safely perform maintenance and repair work followed by the re-energisation of the plant. Work at the site was performed by electrical workers engaged as dayworkers or shiftworkers numbering approximately 36 in total. Not all of the electrical workers are members of the CEPU, with 23 persons being on the roll for the PABO ballot. In addition. there were also contractors who were qualified to perform electrical work (but not isolation work) and at least one staff member (Mr Iley) who could legally perform electrical work. Mr Iley was concerned about the employer's ability to cover the industrial action and the safety risk.

[15] Mr Iley contended that the action described in the notices was insufficient to allow Nyrstar to prepare as it did not allow him to determine when or where or for what duration (other than the maximum) the industrial action would occur. Mr Iley detailed the various parts of the site where the electrical workers perform work.

[16] Nyrstar submitted that that lack of specificity of the industrial action in the notice prevented it from making 'reasonable preparations to deal with the effect of industrial action' as discussed in Telstra Corporation Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[5] (the 'Telstra Case').[6]

[17] Mr Scudds gave evidence on behalf of the CEPU. Mr Scudds' relevant evidence is as follows:

On 18 February 2022, he had been requested by his members to prepare and lodge the Notices.

The Notices were served on 22 February 2022 and intended to commence on 28 February 2022.

In response to discussions concerning the length of notice, he had advised his members not to take action in those parts of the plant where five working days' notice was required and that notice had not elapsed.

The decision to take (or not take) the industrial action described in the notice was a matter for each individual employee and the CEPU respected the right of its members to take industrial action as they saw fit. The timing, duration and task or area that the industrial action took place was also matter for each employee. The industrial action was not structured by the CEPU.

Mr Scudds advised that he understood each notice described action that could be taken on that day only.

[18] Mr Scudds contended that the Notices met the requirements of s.414(6) and were consistent with the decision in WesTrac Pty Ltd v The Australian Workers' Union.[7]

[19] The Notices issued by the CEPU (which are identical except for the date of each notice) relevantly provide:

"Notice by Bargaining Representative of Employees of Intention to take Employee Claim Action (s.414)

Manager - Human Ressources (sic) Nyrstar Port Pirie Pty Ltd

The Communication Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia - South Australian Branch (CEPU) as a bargaining representative of employees who will be covered by a proposed enterprise agreement in relation to the Employer, hereby gives notice of the intention of the CEPU, its officers and employees, and members of the CEPU employed by the Employer, to take the following employee claim action:

An unlimited number of stoppages on the performance of work for up to and including 4-hour periods

An unlimited number of stoppages on the performance of work for up to and including 24 -hour periods

An unlimited number of indefinite or periodic bans on work outside of ordinary hours

An unlimited number of indefinite or periodic bans on work on the out of hours on-call roster

An unlimited number of indefinite or period bans on the performance of Staff Relief

An unlimited number of indefinite or periodic bans on Non-planned work

[20] I have now determined to grant the order sought by Nyrstar on the grounds that the CEPU's Notices lack specificity. My reasons follow.

[21] The facts are largely not in dispute and no issues of credit arise. I have focused on those facts relevant to the issue to be determined. There was considerable evidence (primarily by Mr Iley) which went to the impact of industrial action. These are separate provisions of the Act concerning applications for remedies for particular impacts of protected industrial action. The information is, however, relevant to context.

(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." (emphasis added)

[23] I have reviewed a number of relevant cases on this topic in addition to those referred to in the Hearing.

[24] In Telstra Corporation Ltd v CEPU[8] the Full Bench said as follows:

"[12] Before turning to the notice in this case it is appropriate to make some observations about the construction of s.414. The first point to note is that the obligations in ss.414(1) and (6) are not cast in terms of an intention to take industrial action but in more positive terms. This is a point in contrast with the language in s170MO of the WR Act, exemplified by s.170MO(5) which we have set out above. The second point is that in considering whether the notice meets the requirement to specify the industrial action, it is necessary to have regard to the purpose of the notice requirement and the relevant circumstances, in particular the nature of the employer's undertaking. As to purpose, there is little doubt that the purpose of the notice requirement is to give the employer the opportunity to respond to the action by making relevant preparations. The response may involve making arrangements to deal with unavailability of labour, including making appropriate arrangements in relation to customers, suppliers and other contractors. Whether the notice is adequate may depend on the nature of the employer's operations including the 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. The following passage from the reasons for decision in David's Distribution Pty Ltd v National Union of Workers, a case concerned with the interpretation of s.170MO(5), is apposite:

"[87] We think s 170MO(5) was designed to ensure that industrial disputants who are to become affected by protected action, in relation to which their usual legal rights are significantly diminished, are at least able to take appropriate defensive action. For example, an employer may operate a sophisticated item of equipment that will be damaged if precipitately shutdown. If warned in advance of a ban that might affect the continued operation of that plant, the employer might choose a controlled shutdown during the period of notice. More commonly, perhaps, an employer might use the notice time to communicate with suppliers and customers, and thereby reduce the consequences for them of the notified action. Very often, the recipient of the notice will respond in a way that has a legal dimension. For example, a union might react to a notice by an employer of intent to lock out some employees by giving notice that all employees will strike indefinitely as from the commencement of the lockout. Similarly, an employer might respond to an employees' notice of bans by giving notice of a lockout of some or all employees." (emphasis added)

[25] In National Patient Transport Pty Ltd T/A National Patient Transport v United Voice; Australian Nursing and Midwifery Federation[9] Commissioner Wilson observed that in the Telstra Case, the Full Bench found that s.414(6) of the Act is cast in "more positive terms" than predecessor legislation, suggesting that the present provision requires a notifier to positively specify the nature of the action not merely state it to those receiving the notice.

[26] In the case before Commissioner Wilson, the Union gave notice of (inter alia) two forms of industrial action:

"The wearing of campaign related materials, such as t-shirts, badges, and stickers, and stopping work for up to ten minutes duration on each occasion to explain the campaign-related material to patients, their families and the public.

The distribution of campaign related materials to patients, their families, the public and the media and stopping work for up to ten minutes duration on each occasion to explain the campaign-related material to patients, their families and the public."

[27] Commissioner Wilson observed that the stopping work of up to 10 minutes on each occasion might happen continuously throughout one individual shift for one employee at one branch so that the entirety of their time at work was taken up by the stoppages for up to 10 minutes duration. It might continuously involve all members of the two unions at all branches in which they are represented. Or it may just be some of those branches and some of the members.

"In real effect the industrial action is the 'stopping work of up to 10 minutes on each occasion'. Little insight is given by that phrase. The ordinary grammatical sense of the phrase is that the 'occasion' being referred to is the occasion of wearing campaign materials or their distribution. As a result, this second, impactful part of each of the first two notified forms of industrial action could be experienced by NPT at any time across any part of its network; or it may not be experienced much or at all. The notifications do not convey any meaning of when, where, or how often the industrial action could be experienced."

[29] Commissioner Wilson concluded that the employer's capacity to predict and respond to such a circumstance would be difficult. He found that the requirements of s.414(6) described in the Telstra Case had not been met.

[30] In Burswood Resort (Management) Ltd T/A Crown Perth v United Workers' Union[10] Deputy President Beaumont found that a notice advising that "[A]n indefinite number of stoppages of the performance of work for a duration of 15 minutes not more than once per hour (for members employed in Table Games) ...." did not meet the requirements of s.414(6) of the Act. The Deputy President having considered the circumstances concluded at [86]:

"It is difficult to comprehend that a notice would be adequate, meaning compliant with s 414(6), where the employer was not positioned to take 'appropriate' defensive action, but had to contemplate various scenarios and plan accordingly, including the worst-case scenario because of the lack of specificity in a notice. Crown Perth submits that the action detailed in the Notice does not enable it to take any defensive action, other than shut down the entire gaming areas of the Casino.

[87] Confronted by circumstances where there is a necessity to predict a range of scenarios and thereafter plan for a worst-case demonstrates the impossibility of discerning the nature of the stoppages and manifests the very lack of specificity complained of."

[31] In Mater,[11] Commissioner Simpson followed the Telstra Case but made a s.418 order as a number of items in the notice of industrial action did not specify the nature of the action proposed to be taken:

"...in large part because the nature of the action in each case is contingent upon the judgement of a particular individual. The action is a moving target for the employer, depending on the judgement of a particular employee which may vary from case to case. This causes the nature of the action described in the notice to be imprecise".

[32] The result in Mater was that the Employer was unable to make reasonable preparations to deal with the actions. The making of individual decisions as to the taking of industrial action in this case appears to be identical to the facts before Commissioner Simpson.

[33] Having reviewed the decision in WesTrac Pty Ltd v The Australian Workers' Union[12] it appears that the detail in the notice in that case (which specified the industrial action would be taken for the last two hours of all rostered shifts) was more precise that than in this case.

[34] I note that the notice referred to in Utilities Management Pty Ltd T/A SA Power Networks v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [13] is very similar to the notices in this matter, however individual decisions as to the taking of the action did not appear to be a feature of that matter.

[35] Turning to the facts in this matter, the notices in question each specify the day on which the proposed industrial action will start ("commencing 12.01am") on the specified calendar day. Having considered the evidence of Mr Scudds I find no ambiguity or inadequacy in that regard.

[36] Whether the notice is adequate may depend on the nature of the employer's operations including the 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.[14]

[37] The undisputed evidence before me is that Nyrstar is presently undergoing a shut-down with a range of activities across the site, some of which are dependent on electrical isolation and re-energisation. The organic nature of the industrial action relies on individual decisions by employees who are members of the CEPU as to if action is taken, what task or tasks will be affected and the duration of the action. The industrial action in this regard is completely unpredictable, and identical to that in Mater[15].

[38] The fact that there are potentially less than 36 employees involved and the industrial action is limited to a single (but diverse) site does not reduce the unpredictability of the action. It appears that the only method available to Nyrstar is to plan on the basis that all employees will be involved in industrial action for most of the time. This is analogous to the position in Burswood Resort (Management) Ltd T/A Crown Perth v United Workers' Union[16].

[39] I am not satisfied that each notice specifies the nature of the action sufficiently to meet the requirements of s.414(6).

[40] The application is granted and an order[17] preventing industrial action in the terms sought in the notices for the period detailed on those notices will issue in conjunction with the publication of these reasons. The interim order will cease at this time.

Ms S Zeitz (of counsel) with permission, for Nyrstar Port Pirie Pty Ltd T/A Nyrstar Port Pirie

Mr P Scudds, on behalf of, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

[6] See Nyrstar submissions paragraphs 10-12

[8] Telstra Corporation Ltd v CEPU [2009] FWAFB 1698.

[14] Telstra Corporation Limited v CEPU [2009] FWAFB 1698

Printed by authority of the Commonwealth Government Printer

Nyrstar Port Pirie Pty Ltd T/A Nyrstar Port Pirie v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2022] FWC 449

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Judgment (106 paragraphs)

Nyrstar Port Pirie Pty Ltd T/A Nyrstar Port Pirie v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2022] FWC 449 (2 March 2022)

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Legislation Cited (1)