//
[2019] FWC 2939
General information, not legal advice.
Fair Work Commission
2019-05-03
Original judgment source is linked above.
s.418 - Application for an order that industrial action by employees or employers stop etc.
Application for an Order that industrial action by employees or employers stop etc.
[1] This matter involves an application made under s. 418 of the Fair Work Act 2009 (the Act), seeking that the Fair Work Commission (the Commission) makes an Order that industrial action that is occurring, or threatened, or impending, or probable, or being organised, be stopped and not occur.
[2] Section 418 of the Act is in the following terms:
"418 FWC must order that industrial action by employees or employers stop etc.
(1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:
The FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.
Note: For interim orders, see section 420.
(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;
(ii) an organisation of which a person referred to in subparagraph (i) is a member.
(3) In making the order, the FWC does not have to specify the particular industrial action.
(4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:
(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or
(b) which has not ended before the beginning of that stop period; or
The FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot."
[3] The application has been made by WesTrac Pty Ltd T/A WesTrac (WesTrac or the employer). The application seeks an Order against The Australia Workers' Union (AWU) and members of the AWU who are employees of WesTrac.
[4] The industrial action that is the subject of the application relates to employees of WesTrac who are members of the AWU, and for whom the AWU has given notices of intention to take industrial action pursuant to a Declaration of the Results of a Protected Action Ballot. There was no dispute that the industrial action which is the subject of the notices given by the AWU would satisfy the definition of industrial action as established under the Act.
[5] Further, there was no dispute that the industrial action was action that was authorised in accordance with the Declaration of the Results of a Protected Action Ballot. The relevant Protected Action Ballot was conducted in accordance with an Order of the Commission made on 11 January 2019, in The Australia Workers' Union of Australia v WesTrac Pty Ltd [2019] FWC 150, (the PABO Decision).
[6] The issue of contest in this instance has involved the assertion that particular industrial action taken by the AWU and its members employed by WesTrac, did not comply in respect of the notice requirements for industrial action as prescribed by s. 414 of the Act. Specifically, WesTrac has asserted that certain notices for the taking of protected industrial action provided by the AWU do not properly specify the nature of the action as required by subsection 414 (6) of the Act.
[7] Relevantly, s. 413 of the Act stipulates various common requirements that apply for industrial action to be protected industrial action. One particular common requirement is stipulated by subsection 413 (4) of the Act which states:
(4)The notice requirements set out in section 414 must have been met in relation to the industrial action."
[8] Further, s. 414 of the Act stipulates the notice requirements for industrial action and subsection 414 (6) states:
(6)A notice given under this section must specify the nature of the action and the day on which it will start."
[9] In support of its application, WesTrac, who were represented by Ms A DeBoos, solicitor from K & L Gates, introduced evidence in the form of a witness statement of the employer's HR manager, Mr Daniel Debijl. Mr Debijl was cross-examined on his evidence by Mr A Slevin, barrister, who appeared for the AWU.
[10] In summary, WesTrac has challenged two notices for the taking of industrial action provided by the AWU on 24 and 29 April 2019 respectively. These notices were made in respect of the taking of industrial action involving two-hour stoppages of work.
[11] The AWU had previously issued notices in respect of the taking of industrial action involving two-hour stoppages of work which advised that the two-hour stoppages would occur for the last two hours of all rostered shifts. WesTrac took no issue with these earlier notices as they identified that the two-hour stoppages would occur at a specific time on the identified day.
[12] The challenged notices for the taking of industrial action provided on 24 and 29 April 2019, did not specify any particular time at which the two-hour stoppages would occur on the notified day. Consequently, WesTrac was unable to identify the particular time at which the two-hour stoppages may occur during the 24-hour period of the notification. Further, because of the multiplicity of work sites and shift arrangements worked across its different business units, WesTrac has identified that a variety of permutations involving stoppages at different times and at different sites, business units, and shift groups, could lead up to 26 separate stoppages occurring within one notified 24-hour period (a day).
[13] Therefore, WesTrac has asserted that in the absence of any specificity of the actual time that a two-hour stoppage would occur, the array of potential permutations for various two-hour stoppages to occur during a notified day meant that it was unable to arrange appropriate defensive measures and thus the specific nature of the action as contemplated by subsection 414 (6) of the Act had not been provided.
[15] The AWU asserted that it was clear that there was no particular requirement for the notice of the taking of industrial action to particularise the commencement and finishing time of any proposed action. Further, the AWU asserted that the application made by WesTrac in this instance was little more than a complaint about the inconvenience that it would face as a result of members of the AWU exercising their legitimate right to take protected industrial action.
[16] It is clear from an examination of the various cases that have dealt with the notice requirements arising under subsection 414 (6) of the Act and which are well summarised in the Yallourn Full Bench Decision, that any determination of an alleged deficiency with a notice involves a balanced consideration that examines the particular nature of the relevant workplace operations, the practical impact of the particular industrial action, and an assessment that ultimately provides a balance between the recognised right of the employer to take defensive action against proposed industrial action, and the right of those employees to take that protected industrial action in the enterprise bargaining context.
[17] In this instance, the employer has essentially sought to require that any notification of industrial action for two-hour stoppages of work would require specification of the precise time at which any such stoppages would occur on the notified day. In broad terms, the established authority, as can be conveniently referenced from the Yallourn Full Bench Decision, has rejected any requirement for such specification of the time of the taking of particular industrial action beyond the day on which it will start. However, there may be particular circumstances where the practical impact of certain industrial action may require a time specification within the day on which it was notified if the absence of such detail might prohibit defensive action being taken by the employer and which could conceivably result in the avoidable loss of significant assets such as major plant and equipment.
[18] The evidence in this case has not established that the absence of notification of the actual time at which any two-hour stoppage might occur on any notified day would prevent the employer from taking defensive action such that the result would likely be some loss of significant assets or other major damage. There was simply no evidence that any two-hour stoppage or combination of two-hour stoppages, that occurred at a previously unspecified time on a notified day, would create a circumstance where the employer was unable to implement defensive action against some demonstrably deleterious outcome arising from the industrial action.
[19] Further, the evidence established that the employer could take defensive action in respect to any potential delays for programmed work by advising its customers in a similar fashion to that which it had previously provided of such potential arising from the two and four hour stoppages that had occurred at the end of shifts on 5 and 9 April 2019, and also on 17 April 2019. The absence of prior knowledge of the actual time that the two-hour stoppages would occur has understandably created greater inconvenience and potential harm for the employer's operations than the stoppages that had previously been identified as occurring immediately prior to the conclusion of shifts on the notified day.
[20] However, in the circumstances of this case, the elevation of the level of inconvenience and potential harm occasioned by industrial action that provided lesser specifics in terms of its notification that had previously been given, represents a legitimate and permissible escalation of industrial action adopted as an obvious tactic in what may be described as the "rough and tumble" of enterprise bargaining. Importantly, there was no basis upon which to conclude that the challenged notifications of the taking of industrial action established that the employer was denied an appropriate opportunity to take any necessary defensive action that might be relevant to the elevated level of industrial action created by the notifications for the taking of two-hour stoppages at unspecified times on a notified day.
[21] Therefore, the notifications provided by the AWU for the taking of industrial action in the form of two-hour stoppages at unspecified times on particular notified days represents notifications which satisfy the requirements of subsection 414 (6) of the Act. In the circumstances of this case, the challenged notifications provide sufficient specification of the nature of the industrial action and the day on which it will start.
[22] Consequently, the Order sought by WesTrac must be refused as there is no proper basis to establish that the industrial action that is the subject of the application is not protected industrial action taken in accordance with the relevant requirements of the Act.
[23] Accordingly, the application in this matter is dismissed.
Ms A DeBoos, solicitor from K&L Gates appeared for WesTrac Pty Ltd.
Mr A Slevin of Counsel appeared for The Australia Workers' Union.
Printed by authority of the Commonwealth Government Printer
WesTrac Pty Ltd
The Australian Workers' Union [2019] FWC 2939