Strike Action – Not So Fast Comrade
1. The Full Bench of Fair Work Australia last December handed down two decisions which show that that Tribunal despite its ability to approve protected industrial actions in certain circumstances will only do so when the Applicants for such protection comply with the complex technical regime set out in the Fair Work Act.
2. The Full Bench’s refusal to approve the protected action applications no doubt fulfils sensible people’s views that strike action is to be avoided and even when permitted by legislation, contrary to the common law, will only do so when all the technical requirements have been met. These two decisions provide significant instruction to industrial parties setting out when and in what circumstances such protected industrial action orders will be granted.
3. The first case involving the Ford Motor Company concerned an Appeal from a decision of Senior Deputy President Watson who had made orders authorising the holding of protected action ballots by certain employees of the Ford Motor Company. The Full Bench in this case provided further explanation of the provisions relating to bargaining for new enterprise agreements and the time at which and when a protected action balloting orders could be made. The hitch in this case was that a small section of the employees of Ford were covered by an agreement, which was yet to expire. Ford after extensive bargaining had occurred, wrote to the other side indicating that the agreement could not cover all the relevant employees and as a consequence the unions could not apply for a protected action ballot order. The unions, in response sought to exclude some employees from the negotiations.
4. The majority decision of the Tribunal (Senior Deputy President Kaufman and Deputy President Ives) in a joint judgment upheld the appeal based upon the scheme of the Act and a close reading of the technical provisions for the securing of such protected action [17] et seq.
5. The Notice requirements set out in s 173 of the Fair Work Act were crucial and as was the time when such Notice was given to the employees to be covered by the proposed agreement. Attempts after such a Notice was given to exclude some employees from the agreement proved ineffectual.
6. The majority said that it was inherent in the entire bargaining process that the employer bargain for a proposed agreement that will cover an identified group of its employees [35]. The “proposed agreement” referred to in s 443(1) is “the proposed enterprise agreement” found in s 173(1) in respect of which an employer must give to its employees a Notice of their representational rights [36]. The identity of the employees to be covered by the “proposed agreement” must be clear and be known at all stages of the bargaining process [45].
7. The majority held that the discussions which occurred after the purported exclusion of the employees covered by an existing agreement were nothing more than general discussions about aspects of an agreement that might be formally the subject of bargaining under the Act once the employees who were to be covered by it were ascertained [49].
8. Commissioner Lewin although would have granted leave to appeal he dismissed the appeal and provided reasons for his dissent [51] et seq.The unions were left with no choice but to recommence the entire process.
9. I now turn to the Telstra Appeal. Telstra had sought a decision from Vice President Lawler of Fair Work Australia that an Order should be made under s 418 of the Fair Work Act in relation to industrial action proposed by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). Section 418 provides that Fair Work Australia must make an Order that industrial action stop or not occur if it is satisfied that the industrial action is not, or would not be, protected industrial action. Before the Vice President and the Appeal Bench it was common ground that pursuant to s 413(4), industrial action is not protected action unless the notice requirements in s 414 have been met. Relevantly, s 414(6) provides:
“A Notice given under this section must specify the nature of the action and the day on which it will start.”
The evidence below was that the following Notice was given in relation to the proposed industrial action:
“The employee claim action will take the form of an unlimited number of indefinite stoppages of work by those CEPU members whose normal place of work is all States and Territories of Australia.
The employee claim action will occur between the hours of 12:01am and 11:59pm on Wednesday 2 December, 2009.”
10. It was Telstra’s case below and on Appeal that the Notice failed the requirements set out in s 414(6) in that it was too indefinite and vague. The Full Bench in considering the adequacy of the Notice considered the context in which Telstra operates in Australia. It employs some 34,000 employees in hundreds of work locations throughout Australia. The evidence did not indicate the number of employees relevantly who were members of the CEPU. It was also noted that the potential effect on Telstra’s operations of industrial action by CEPU employees could be very significant. In considering the expression “indefinite stoppages” the Full Bench found that whether it complies with s 414(6) would depend upon the context in which it appears and the surrounding circumstances. The Full Bench said:
“In this case the use of the expression does very little to shed light on the nature of the action to be taken. First, the expression is used in the plural. This indicates that there will not be one stoppage of all CEPU members, but there will be a number of them, thereby raising questions about the precise number and the location of the stoppages. Secondly, the expression is used in the Notice in conjunction with the words “an unlimited number”. Read as a composite phrase the potential for variation in the number, length and location of stoppages is very wide.” [14]
Further they said:
“The Notice does no more than specify that there will be stoppages of an indeterminate number and length at locations at which CEPU members work.” [15]
The Full Bench respectfully disagreed with the Vice President’s conclusion in relation to the adequacy of the Notice and said:
“—it is implicit that the description of the action contained in the Notice should be sufficient to put the employer in a position to make reasonable preparations to deal with the effect of the industrial action. In order to prepare for all eventualities contemplated by the Notice in this case, Telstra would have to plan on the basis that every CEPU member would be on strike for the whole of the day in question. Yet that is not what the Notice says. Given the nature of Telstra’s operations some greater specification would be required. Indeed, on one view the Notice conceals more than it reveals about the industrial action that will in fact occur.” [16]
The Full Bench ultimately found that the Notice failed to comply with the provisions required in s 414(6) although said that:
“whether a particular Notice meets the requirements… will depend upon its terms and industrial context .Every case is different and each Notice must be looked at having regard to all relevant considerations.” [18]
11. The importance of complying with the technical legislative requirements is important for employees going on such industrial action. Not to have such protection could expose themselves and their union officials or bargaining agents to actions for damages arising out of breach of contract or the economic torts such as inducing a breach of contract or interfering with contractual relationships.
