The Australian Workers Union v Johnson Matthey [2000] FCA 360 | Case summary

(i) The adequacy of the notice 27 Mr S Wood, of counsel, appeared for the Company. He submitted that the Union's notice of intended industrial action dated 13 July 1999 failed adequately to disclose the nature of the intended industrial action. Section 170MO(5) of the Act requires that the notice "must state the nature of the intended action and the day when it will begin". The terms of the notice appear earlier in these reasons for judgment at par [11]. 28 The notice refers generally to industrial action as defined in s4 of the Act but also refers "in particular" to: · "the failure or refusal by your employees to attend and/or perform work"; and · "a ban, limitation or restriction on the performance of work or an acceptance of, or offering for work". 29 The industrial action taken was a strike which commenced on 19 July 1999 at 6.00 am. The notice advised that the action would commence on that day and that time. The notice, despite containing unnecessary verbiage referrable to the definition of industrial action in s4 of the Act, did state the nature of the intended industrial action, that is: · A failure or refusal by employees to attend work or perform work. · A ban on the performance of work, the acceptance of work or the offering of work. 30 Any rational reader of the notice would be under no misapprehension that notice was being given of a complete withdrawal of labour by the relevant employees from 6.00 am on 19 July 1999. No doubt it would have been tidier and preferable for the notice simply to refer to "an indefinite strike of all employees who are AWU members". However, properly understood, that is what it, in effect, conveyed. Senior officers of the Company certainly understood that to be so. A notice in relevantly identical terms was sent to the Company prior to the strike which occurred on 1 and 2 July 1999. Mr McTaggart knew that a strike was to commence on 19 July 1999 when he "laid off" Mr Naumovski on 16 July 1999. Doubtless his instructions came from senior management to lay off casual employees in anticipation of the strike. This is, in effect, what he told Mr Naumovski when he said that, "It's not my decision. It's higher up". Mr Chadjilazrou knew that a strike was to commence on 19 July 1999. Why else would he have said to Mr Serifovski, a leading hand in the Company's refining department, that: "What would it take to stop you going on strike?" Further, why else would he have told Mr Hutcheon that he observed him voting for a strike? Mr Serifovski's supervisor, Mr Lazarev, knew that a strike was to commence on 19 July 1999. Why else would he have said to Mr Serifovski that if Mr Serifovski and other members of the Union went on strike they "would probably never come back?" 31 In support of his submission that the notice did not state the nature of the intended industrial action, Mr Wood referred to the dicta of Wilcox and Cooper JJ in Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 at 494 to 495 [pars 84 to 90]. 32 At par [87] in Davids, Wilcox and Cooper JJ said: "We think s170MO(5) was designed to ensure that the 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." 33 At [par 89] their Honours held that a notice which referred only to "bans and rolling stoppages" did not sufficiently reveal "the nature of the intended action". The particularization of a cessation of work, although accompanied by excessive verbiage, did sufficiently reveal, in the circumstances of the instant case, the nature of the intended action. Consequently, the Company was able to take "defensive action", whether appropriate or otherwise, such as the "laying-off" of casual employees. 34 Mr Wood also relied on the judgment of Carr J in Burswood Resort (Management) Ltd v Australian Liquor Hospitality and Miscellaneous Workers Union [1999] FCA 1443. In Burswood, the notice of intended industrial action relevantly provided that: "The intended action will be in the form of stoppages of work, bans and limitations." Carr J held that there was a serious question to be tried whether the notice sufficiently described the nature of the intended action. I note that the notice in that case did not specify any particular industrial action. In this matter, such particularisation is provided albeit preceded by general non-specific language referrable to the definition of "industrial action" provided in the Act. 35 For the reasons expressed above, in my view Davids and Burswood are distinguishable in the current circumstances. Consequently, I reject the Company's contention that the notice did not state the nature of the intended action in accordance with s170MO(5) of the Act. 36 Mr Wood further submitted that the notice failed to give any indication of the length of the intended action. However, as counsel for the Union, Mr P Rozen, submitted, s170MO(5) of the Act contains no such requirement. The notice only need state "the day when it [the intended action] will begin". 37 Additionally, Mr Wood contended that the notice referred to "officers and employees of The Australian Workers Union, Victorian Branch employed by you". He submitted that the industrial action taken was taken by employees who were not members of the Union. Properly construed, it is a nonsense to refer to "officers and employees" of the Union employed by the Company. The Company employs no such persons. The notice, it appears, was really intended to refer to "members of the Union employed by you". It appears that that is how it was understood by relevant Company officers, given the evidence of Company supervisors and managers already mentioned in these reasons. In any event, the fact that persons who are not members of a Union ultimately engage in industrial action taken by union members, if that be the case, does not mean that the notice does not comply with the requirements of s170MO(5) of the Act. Contrary to Mr Wood's submissions, I see nothing in Davids to support the Company's contention. Accordingly I reject it. In any event, the notice does, as Mr Rozen pointed out, refer to "the failure or refusal by your employees to attend and/or perform work" (emphasis supplied). 38 Consequently, in my opinion, the notice of intended industrial action dated 13 July 1999 complied with the provisions of s170MO(5) of the Act. The Company's attack on the "protected" nature of the industrial action taken on and from 19 July 1999, in so far as it relies on any perceived deficiency in the form of the notice, has failed.

The Australian Workers Union v Johnson Matthey

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