United Collieries Pty Ltd v Construction, Forestry, Mining and Energy Union

Question 3: Do you, for the purpose of advancing claims in the negotiation of a union collective agreement between the Construction, Forestry, Mining and Energy Union and United Collieries Pty Ltd, authorise industrial action in the form of a seven (7) day stoppage of work?

Question 4: Do you, for the purpose of advancing claims in the negotiation of a union collective agreement between the Construction, Forestry, Mining and Energy Union and United Collieries Pty Ltd, authorise industrial action in the form of two (2) hour duration stop work meetings?

Question 5: Do you, for the purpose of advancing claims in the negotiation of a union collective agreement between the Construction, Forestry, Mining and Energy Union and United Collieries Pty Ltd, authorise industrial action in the form of stoppages of work of a shift length in duration?'

3 The authorised ballot agent made a declaration of the ballot results on 15 May 2006 pursuant to s 476 of the Act. The majority of employees on the roll voted affirmatively to each question in accordance with s 478(1)(b) and (c). Each question attracted 102 votes with one informal vote recorded for question 3. The number of negative results recorded for each question was:

· Two in relation to question 1 on 24 hour work stoppages; · Three in relation to question 2 on bans on working non-rostered overtime; · Nine in relation to question 3 on seven day work stoppages; · Four in relation to question 4 on two hour stop work meetings; · Three in relation to question 5 on shift length work stoppages.

Thus, the 30 day period specified in s 478(1)(d) began on 15 May 2006 and finished on 13 June 2006.

4 On 16 May 2006 the Union notified the applicant, United Collieries Pty Limited, pursuant to s 441 of the Act of its intention to conduct a 24 hour stoppage of work commencing on 21 May 2006. That stoppage occurred on that date. 5 Following similar notices pursuant to s 441, further industrial action was taken within the 30 day bargaining period as follows: · Bans on non-rostered overtime commenced on Monday 22 May 2006 and continued until Monday 12 June 2006.

· A shift stoppage of work commenced at 2.30 pm on Wednesday 24 May 2006. · A shift stoppage of work commenced at 10.30 pm on Wednesday 24 May 2006. · A shift stoppage of work commenced at 6.30 am on Friday 26 May 2006. · A seven day stoppage of work commenced at 6.30 am on Thursday 1 June 2006.

6 The Union gave a further notice dated 2 June 2006 in which a 24 hour stoppage was proposed commencing on 15 June 2006, a date that falls outside the 30 day period. United Collieries contended that the industrial action threatened in that notice was not protected action as it was outside the 30 day period. The Union did not agree, hence this proceeding brought by United Collieries. Although the date for the particular industrial action specified in the 2 June notice has now passed, the question as to what, if any, industrial action will be protected by virtue of the authority granted by the ballot remains live. United Collieries contends that as the 30 day period has expired no action of the kind contemplated under the authority granted by the secret ballot would now be protected industrial action. On the other hand, the Union contends that, as a 24 hour stoppage had taken place within the 30 day period, all of the available options of industrial action approved in the ballot are open. Alternatively, the Union contends that 24 hour stoppages of work, bans on the working of non-rostered overtime, seven day stoppages of work and shift stoppages of work would all be protected action if taking place during the bargaining period as each type of action had been commenced during the 30 day period. 7 The gist of s 478(1) for present purposes is that industrial action is authorised if the action is the subject of a successful protected action ballot and the action commences during the 30 day period beginning on the date of the date of the declaration of the results of the ballot. The 30 day period may be extended by the Industrial Relations Commission if there is a joint application by the employer and applicant for the ballot but only one such extension can be granted, see s 478(3) and (4). Section 478(2) provides that the action is not authorised 'to the extent that it occurs after the end of the bargaining period referred to in s 451'. Amongst other things, s 451 provides that applications for an order for a ballot may only be made during a bargaining period. 8 Part 9 of the Act deals with 'industrial action' defined by s 420 to mean (subject to certain exclusions with no particular significance here): '(1) For the purposes of this Act, industrial action means any action of the following kinds:

(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;

(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

(d) the lockout of employees from their employment by the employer of the employees;' [emphasis in original] 9 Bargaining periods are dealt with in Div 2 of Pt 9 of the Act. I need not summarise the provisions. As the name implies, it relates to a period of bargaining towards a collective agreement. The beginning of the bargaining period is set by s 427 and the end by s 428. It is essentially open ended in that it is brought to an end by agreement, withdrawal from negotiations by the initiating party or termination by the Industrial Relations Commission pursuant to certain powers. 10 Division 3 of Pt 9 deals with protected action. Section 441 provides for a notice of intended action to be given to the employer. That is of some significance in the present debate. Section 441(6) provides that a written notice must state the nature of the intended action and the day when it will begin. Section 445 provides that, amongst other things, action is not protected action unless (as one of two alternatives) the action has been authorised by a protected action ballot. In addition to what might be called industrial protection, s 447 provides wider immunity and s 448 prohibits discrimination against an employee on account of proposing to engage in, or engaging in, protected action. 11 Division 4 of Pt 9 deals with secret ballots on proposed protected action. Subdivision A is a general introduction, including definitions and the object. Each party referred to s 449(1) which sets out the object of the Division as follows: 'The object of this Division is to establish a transparent process which allows employees directly concerned to choose, by means of a fair and democratic secret ballot, whether to authorise industrial action supporting or advancing claims by organisations of employees, or by employees.' Subdivision B deals with the application for an order for a protected action ballot to be held which is to be made to the Industrial Relations Commission. Notice of the application must be given to the other party. The application must include, amongst other things, the question or questions to be put to the relevant employees in the ballot, including the nature of the proposed industrial action (s 452(1)(a)). Subdivision C deals with the determination of the application and the order for the ballot to be held. The Commission acts after hearing submissions from affected parties. There is a very detailed procedure for the holding of the ballot, including nomination of the ballot agent who is to conduct it. One of the matters to be included in the order is the question or questions to be put to the relevant employees in the ballot, including the nature of the proposed industrial action (s 463(1)(g)). Subdivision D deals with the conduct and results of the protected action ballot. Section 478 is part of that subdivision. Again, the provisions are detailed and formal. Subdivision E deals with authorised ballot agents and authorised independent advisors. Subdivision F deals with the funding of ballots. The general position is that the applicant is liable for the cost of holding the ballot but there is a Commonwealth subsidy available for 80 per cent of the cost. Subdivision G deals with miscellaneous matters, including a regulation making power.

12 Division 5 of Pt 9 deals with industrial action not to be engaged in before the nominal expiry date of a Workplace Agreement or Workplace Determination. Division 6 deals with orders and injunctions against industrial action. Division 7 deals with ministerial declarations terminating bargaining periods. Division 8 deals with Workplace Determinations which apply if a bargaining period has been terminated. Division 9 deals with payments in relation to periods of industrial action. 13 Each side also referred to the principal objects of the Act in s 3 and to the various subclauses of that provision. I regard those general statements as neutral in the present debate. 14 Some initial points should be noted. One is that United Collieries accepts that authorised action might continue past the 30 day period if it is commenced beforehand and, of its nature, will extend past the expiry of the period. A good example would be a seven day stoppage commencing on the last day of the 30 day period. It is accepted that a strike of indefinite duration could be authorised and could continue provided that it was commenced within the 30 day period. United Collieries also accepts that, if question 1 had words added such as 'each successive Monday commencing on (date)' or a series of dates, action would be authorised beyond the expiry of the 30 day period provided that the first date was within the 30 day period. If its preferred submission is not accepted it is acknowledged by the Union that question 3 only contemplates one seven day stoppage, and as this took place during the 30 day period there could be no further action of this type after that time period elapsed. The Union also acknowledges that, if its preferred submission is not accepted, as there was no two hour stop work meeting during the 30 day period, no future two hour stop work meetings are protected as a result of this ballot. 15 I do not accept the Union's preferred argument that, as some industrial action commenced within the 30 day period, all options approved by the ballot are now open. In my opinion, each separate question in the ballot relates to a different kind and nature of industrial action. That conclusion is consistent with the requirements of s 452 and s 463(1)(g) providing for the posing of a question or questions including the nature of the proposed action. 16 The issue of principle for decision arises in relation to each of questions 1, 2 and 5, as an instance of each form of industrial action occurred prior to the expiration of the 30 day period. United Collieries submits that each such instance was self-contained and was not the commencement of anything else.

17 It is submitted by United Collieries that use of the phrase 'the action' in s 478(1)(d) refers to a specific instance of industrial action. The phrase is in the singular and the noun 'action' is governed by the definite article. It is used in contradistinction with the more general phrase 'industrial action'. It is submitted that this construction is assisted by consideration of s 441 dealing with the notification of industrial action. The phrase in that section 'the action' relates clearly to particular instances of industrial action rather than a general description. Reference was made to a passage from Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463, per Wilcox and Cooper JJ with whom Burchett J agreed (at [85]):

'The subsection does not use the term "industrial action". Rather it uses the definite article, in speaking of "the intended action". It seems to us this implies a measure of particularity greater than would be conveyed merely by quoting the words of one of the paragraphs in the definition.' It is submitted that the same meaning should be attached to similar phrases in sections which appear in the same Part of the Act. It is submitted that ss 438, 444 and 447 provide other examples where Parliament used the phrase 'the action' to refer to a specific instance of industrial action. Reference is also made to the definite article in s 452(1)(a) to make a similar point.

18 United Collieries also submits that the ability to extend the 30 day period referred to in s 478(1)(d) provides further support to its interpretation of the section (see s 478(3) and s 478(4)). It is submitted that, if the Union's interpretation of s 478(1)(d) is correct, s 478(3) and s 478(4) will have little utility. Support is also claimed from the examples of protected action ballots contained at the end of s 434. 19 United Collieries refers to the Explanatory Memorandum, the relevant portion of which was as follows: 'This section would establish that the object of a new Division is to provide employees with access to a process of fair and democratic secret ballots to determine whether protected industrial action should be taken. The provisions are designed to be faciltative (i.e. to provide the means for accessing protected action) not prohibitive (i.e. to outline the circumstances in which such action is not available).' 20 United Collieries submits that its interpretation promotes the object set out in s 449(1) of the Act as it would assist to vest control over industrial action in the employees directly concerned. It calls in aid the results of the secret ballot in that fewer employees voted in favour of the longest period of industrial action. It is argued that as the bargaining period wears on and the number of days of lost pay increases, employees may be less likely to be in favour of further industrial action. It is thus conceivable that there would be a majority of employees participating in industrial action which they, in the end, do not support. It submits that the purpose of enabling the employees directly concerned, as opposed to the Union, to choose to take industrial action would be frustrated. Union officials would decide when and if to take the specified form of industrial action. 21 I am not persuaded that the relevant provisions of the Act are as restrictive as is submitted on behalf of United Collieries. The issue really is whether each question passed at the ballot properly describes industrial action. If a question in the form of question 1 is answered in the affirmative, then industrial action of a particular nature is authorised with no time limits. The effect of the position of United Collieries is that there is an unspoken limitation that action would have to take place within the 30 day period. I disagree. The relevant period for industrial action, having in mind the scheme of the Part of the Act in question, is the bargaining period, not the 30 day period. The existence of the 30 day period does not affect the answer to the question as to whether industrial action has been properly authorised. The purpose of the time limit in question needs to be considered. It is a time limit for commencement of industrial action, not a time limit for completion of industrial action. The bargaining period provides that limit. In my opinion, the purpose of the provision is to ensure that the employees are voting upon a real proposal based upon relatively contemporaneous circumstances. A commitment to relatively prompt action is involved, rather than simply giving an authority which can be held up the sleeve of those negotiating for the employees. 22 The grammatical argument advanced by United Collieries is unconvincing. The phrase 'the action' refers back to 'industrial action'. There is, of course, the need to specify the industrial action but there is no indication that that must be done by reference only to specific instances of it. A consequence of the argument for United Collieries is that a separate ballot would be required before each instance of, eg, a 24 hour stoppage, a ban on the working of non-rostered overtime or a shift stoppage. Bearing in mind the detailed and formal nature of conducting a ballot and the consequent time and cost, that would be an unlikely result. 23 United Collieries attempted to outflank this obvious difficulty by accepting that there could be a predetermined, but specific, series of actions on particular dates or at particular times extending beyond the 30 day period. I can see no distinction in principle between employees authorising 24 hour stoppages after the 30 day period on predetermined days (accepted to be valid), compared with 24 hour stoppages after the 30 day period at times to be determined as the bargaining unfolds. As pointed out in Davids Distribution Pty Ltd v National Union of Workers (at [84]): 'Industrial disputes are dynamic affairs. Decisions as to future steps often need to be made at short notice, sometimes in response to actions of the opposing party … and changing circumstances.' There is some substance to the Union's contention that the construction favoured by United Collieries might drive more draconian mandatory industrial action than might otherwise be the case.

24 The gravamen of United Collieries' complaint is that, as the description of industrial action specified in each of the relevant questions on the ballot leaves open when industrial action should take place, Union officials will be given a role which is not provided by the legislation and which is inconsistent with the facilitation of decision making by the employees actually affected. The exclusion of Union officials from the process in that way is not spelled out in the legislation or in the extrinsic material. If the affected employees vote in favour of a form of industrial action which gives a discretion to Union officials, then industrial democracy has worked with that result. 25 The Act contemplates that negotiations during the bargaining period will be a power struggle with no holds barred, within limits. The secret ballot provisions are not intended to alter the balance of power in favour of employers against employees. They are to assist in ensuring that power is exercised by the affected employees. 26 It is easy to be swayed by perceived policy arguments in matters of this kind. Statutory construction is the issue. Primary attention should be given to the words of the statute. In my opinion, the words 'the action' in s 478(1)(a) and s 478(1)(d) refer to the industrial action which was the subject of the protected action ballot and, in particular, the proposed industrial action put to the employees by way of each question. The content of each question must include 'the nature of the proposed industrial action'. Each question remaining in issue here describes industrial action at a level of generality above specific instances. The description might have been more specific, but it was not. They are in the plural but without a schedule of dates or times. No doubt some descriptions of industrial action may be too general. That issue does not arise here. The form of the questions has not been challenged in this proceeding. I do not mean to imply that they could have been successfully challenged. Each question describes industrial action which was authorised by the employees. As each question describes a type of industrial action in the plural, or a series of individual actions, that industrial action is commenced by the occurrence of the first instance of it. 27 I do not regard the decision or the reasoning in Davids Distribution Pty Ltd v National Union of Workers to be contrary to this conclusion. The particular question in that case concerned the provisions of another division of Pt 9 of the Act with a different focus to s 478. The same may be said of the other examples given by United Collieries. The object of the Division and the passage referred to in the Explanatory Memorandum do not point to any different conclusion. 28 It follows that the action described in each of questions 1, 2 and 5 was commenced in the 30 day period beginning on the date of the declaration of the results of the ballot. The continuation of that action during the bargaining period is not prohibited by s 478(1)(d). The application must therefore be dismissed. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Counsel for the Respondent: Mr SC Crawshaw SC with Mr AM Slevin

Solicitor for the Respondent: Construction, Forestry, Mining and Energy Union