[2013] FWCFB 3793 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
SENIOR DEPUTY PRESIDENT HARRISON
|
SYDNEY, 17 JUNE 2013 |
Appeal against decision [[2013] FWC 1202] of Commissioner Bissett at Melbourne on 21 February 2013 in matter number C2013/3194, whether industrial action protected, adequacy of s.414(6) notice.
[1] EnergyAustralia Yallourn Pty Ltd (the Appellant or EnergyAustralia) appealed against a decision of Commissioner Bissett to dismiss an application it had made under s.418 of the Fair Work Act 2009 (FW Act). The respondent to the appeal is the Construction, Forestry, Mining and Energy Union (CFMEU).
[2] The competence of the s.418 application turned on whether, in the context of bargaining for a proposed enterprise agreement, a notice given by the CFMEU to the Appellant complied with s.414(6) of the FW Act. Section 418 does not apply to protected industrial action. The Appellant asserts that as the s.414(6) notice was not valid, the industrial action foreshadowed by it would not be protected. The Appellant submitted below, and again on appeal, that the notice did not specify the nature of the industrial action to be taken, that it was ambiguous and misleading particularly due to its use of the word “bans” and because it described an outcome of the proposed industrial action rather than the nature of the action. It contends that the Commissioner was in error in finding the Appellant fully comprehended what was intended by the notice and how the industrial action would manifest. Two other challenges are also made to findings of the Commissioner which concern what is said to have been the test she applied to the level of specificity required in a s.414(6) notice and the weight she had given to the content of a s.471 notice the Appellant issued to its employees.
[3] The Appellant was represented by Mr Forbes and the CFMEU by Mr Crawshaw SC and Mr Reitano. The appeal is made under s.604 of the FW Act. At the conclusion of the hearing we announced that we would not grant permission to appeal. These are our reasons for that decision.
Background - the protected action ballot order and subsequent s.414(6) notice
[4] On 22 January 2013 Commissioner Jones issued an order 1 for a protected action ballot of members of the CFMEU employed at Yallourn Power Station who would be covered by a proposed enterprise agreement. In her decision accompanying the order, the Commissioner said EnergyAustralia had advised her chambers that it did not object to the issuing of an order in the terms sought by the CFMEU.2 At paragraph [5] she said she was satisfied the application contained the questions to be put to employees including the nature of the proposed industrial action.
[5] Paragraph [5] of the ballot order specified that the following questions were to be put to the voters:
“For the purposes of supporting or advancing claims in support of the proposed Enterprise Agreement with your employer EnergyAustralia Yallourn Pty Ltd, do you authorise the following types of protected industrial action to be taken against your employer, which may involve you and/or other employees engaging in any and all of the following forms of action separately, concurrently and/or consecutively:
1. An unlimited number of stoppages of work, including consecutive stoppages of work, of between one (1) and twenty-four (24) hours in duration?
2. An unlimited number of bans on the working of higher duties?
3. An unlimited number of bans on the working of overtime?
4. An unlimited number of bans limiting the output of individual generators?
5. An unlimited number of bans on the issue and/or restoration of permits to work on plant or apparatus?”
[6] A ballot was conducted in accordance with the order and the voters supported each of the forms of industrial action described in the questions. On 14 February 2013 the CFMEU gave a s.414(6) notice to the Appellant of an intention to take employee claim action. The notice was in these terms:
“We hereby notify you of the intention of members of the Construction, Forestry, Mining and Energy Union (‘CFMEU’), for whom the CFMEU is the bargaining representative, and who will be covered by the proposed replacement enterprise agreement to the TRUenergy Yallourn Proprietary Limited Workplace Agreement 2008, to take protected action as follows:
1. Bans limiting the output of individual generators to two hundred and forty megawatts (240MW) between the hours of 7:00am and 9:00am commencing on Wednesday, 20 February 2013 and continuing on a daily basis thereafter between the same times specified for an indefinite period.
2. Bans limiting the output of individual generators to two hundred and forty megawatts (240MW) between the hours of 4:00pm and 6:00pm commencing on Wednesday, 20 February 2013 and continuing on a daily basis thereafter between the same times specified for an indefinite period.”
The relevant provisions of the FW Act and the Workplace Relations Act 1996
[7] The FW Act allows employees to take protected industrial action in support of a proposed enterprise agreement and for employers to take response action to action taken by employees. In this appeal we are only concerned with employee claim action so we concentrate on the provisions of the FW Act which deal with that kind of action.
[8] For industrial action to be protected it must be authorised by a protected action ballot. 3 Section 437 allows a bargaining representative of employees to apply for an order that a protected action ballot be conducted to determine whether the employees they wish to engage in particular protected industrial action. Section 437(3)(b) provides that the application “must specify ... the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.” Section 443 provides that the Commission must make a protected action ballot order if the application has been made under s.437 and the Commission is satisfied each applicant has been, and is, genuinely trying to reach agreement with the employer. Section 443(3)(d) provides, relevantly, that;
“A protected action ballot order must specify the following:
...
(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.”
[9] Section 409, in addition to requiring a protected action ballot prior to employee claim action being taken, also provides that a number of other pre-requisites must be met. 4 These include what are described as the “common requirements” and are in Subdivision B of Division 2, Chapter 3 of the FW Act. That subdivision contains two sections, ss.413 and 414.
[10] Section 413(4) provides that notice requirements as set out in s.414 must have been met in relation to the proposed industrial action. Section 414 provides that before a person engages in employee claim action a bargaining representative of the employee must have given written notice of the action to the employer. The section then provides for the period of notice that is to be given and other requirements in relation to action not here relevant. Section 414(6), the key section in this appeal, reads as follows:
“Notice requirements-content
414(6) A notice given under this section must specify the nature of the action and the day on which it will start.”
[11] It should be noted that the same terms and phrases are used in ss.437(3)(b), 443(3)(d) and 414(6). In each section the requirement is to “specify” ... “the nature of the industrial action” or “the nature of the action”. We comment upon this later in this decision.
[12] The Appellant accepts that the action described in question 4 of the protected action ballot order and the action described in the s.414(6) notice each constitute industrial action for the purposes of the FW Act. In the case of the action described in the s.414(6) notice it must accept it constitutes industrial action that is impending or probable as that was the basis of its s.418 application. 5 In the case of question 4 in the protected action ballot order it can be accepted that Commissioner Jones, in being satisfied each of the pre-requisites to the making of an order were made out, also concluded that action was capable of constituting industrial action under the FW Act. However, what the Appellant says is that the notice does not comply with s.414(6) and it is for that reason the foreshadowed action will not be protected.
[13] We should next refer to some provisions of the Workplace Relations Act 1996 (WR Act), the predecessor to the FW Act which concerned the previous protected action regime. We do this as a number of decisions relied on by the parties were made under the provisions of the WR Act.
[14] Under s.170MI of the WR Act an employer, union or employee wanting to negotiate an agreement which would be certified under that Act was entitled to initiate a bargaining period for that purpose. That bargaining period was to be initiated by the giving of a written notice to the other negotiating parties. Section 170MJ contained requirements about the particulars that were to accompany the notice. They included the relevant business and types of employees to be covered by the agreement, the matters that were proposed to be dealt with by the agreement and the industrial dispute (if any) to which the proposed agreement related. The bargaining period would then begin seven days after the day on which the notice was given. 6 Section 170ML dealt with protected action. Section 170ML(2) provided that during a bargaining period the union or negotiating employee were entitled to organise or engage in industrial action for the purposes of supporting or advancing the claims made in respect of the proposed agreement. Section 170MO provided that any action that was proposed to be taken would not be protected unless the requirements in s.170MO(2) were met. In the case of action that was to be taken by a union or negotiating employee they had to have given the employer at least three working days written notice of the intention to take the action. Section 170MO(5) contained the content requirement for the notice. It read as follows:
“170MO(5)[Content of notification] A written notice or other notification under this section must state the nature of the intended action and the day when it will begin.”
[15] It is to be noted that in this scheme there was no equivalent to the mandatory application that the FW Act requires be made for a protected action ballot order. There was therefore no equivalent opportunity as currently exists for an employer to comment on the description that may be contained in such an application of the nature of the proposed industrial action. We are aware that the WR Act provided under s.135 for an application to be made for a secret ballot but, unlike the scheme under the FW Act, that was not an obligatory pre-requisite and, to our knowledge, was infrequently utilised.
The Commissioner’s reasons for decision
[16] The Commissioner referred to the background to the s.418 being the order which had been issued for a protected action ballot and the subsequent s.414(6) notice. She listed the challenges made by EnergyAustralia as to why it asserted that the s.414(6) notice was “hopelessly ambiguous” and deficient. It had said it did not know:
● The nature or form of the proposed industrial action;
● When the industrial action will commence or when it will finish;
● The identity of the persons who will engage in the action;
● What steps the employer can take to arrange its affairs and its business to meet the inconvenience, risks and financial losses posed by the proposed action. 7
[17] These challenges were returned to and addressed later in her decision. Next the Commissioner referred to the evidence of Mr Hogarth, EnergyAustralia’s Operations Manager. We here interpose to note that he was the only witness called in the proceedings. The following is a summary of the Commissioner’s reference to the evidence.
[18] The Yallourn Power Station is operated by EnergyAustralia and supplies about 22 per cent of Victoria’s electricity needs and eight per cent of the national electricity market. Two of the generators at Yallourn have a maximum rating of 360 megawatts (MW) and two have a maximum rating of 392 MW. The output of the generators varies during the day based on the contracts EnergyAustralia has entered into and the demand in the market.
[19] The output of the generators can be varied automatically by an operator inputting the generation target to which the generator is to be set and the rate at which the change is to be made or the output can be adjusted manually by the operators. One of the generators had a fault at the time and could only be adjusted manually.
[20] The output of the generators is increased or decreased as required to meet dispatch targets at the rate of between three and five MW per minute. If the output is adjusted more quickly there is a risk that the generator will be tripped with potential damage to the unit.
[21] In his affidavit, Mr Hogarth said he was not sure from the notice if the planned action would result in the output of the generators being limited for two hours or for longer periods. This is because he was not aware if the operators would impose bans such that the output was at 240 MW between the times specified in the notice or if the bans would result in a reduction in output starting at the commencement time of the action and, at some point during the specified time, reach 240 MW and then be ramped up to the required output by the end of the specified period. He said this knowledge is essential so that the energy market team can assess the risk and determine what action they should take to mitigate the consequence of a potential shortfall in supply during the period of the proposed action. The consequences of not generating sufficient energy supply to customers could result in significant cost to the business. The Commissioner noted that when asked if this was the key area of deficiency Mr Hogarth had said that he would also need to know the rate at which the generators would be ramped down or up.
[22] Mr Hogarth said that the notice provided by the CFMEU did not make it clear if the times that the proposed action is to be taken referred to Australian Eastern Daylight Savings Time (AEDST) or “Market Time” (which is one hour earlier than AEDST). He had also said that the notice did not make clear which of the ordinary tasks or functions of the relevant operators will be limited or not performed to achieve the reduced output. The Commissioner said that he had provided evidence as to how the operators control output from generators and accepted that operators adjust the output of the generators for reasons including management direction for the purpose of supply to the grid as part of their day-to-day activities. Mr Hogarth agreed that the CFMEU is the bargaining representative for employees at EnergyAustralia and that those employees would generally be characterised as operators.
[23] The Commissioner then proceeded to address each of the reasons EnergyAustralia relied upon to support its submission that the notice was ambiguous and deficient. She first considered its submissions as to why the nature and form of the industrial action as described in the notice was deficient.
[24] The Commissioner made findings about EnergyAustralia’s knowledge of its business and the way in which operators performed their functions. The findings made 8 included the following:
● The proposed action was to be at a single enterprise at a single location. The capacity of a generator is altered by an operator inputting a specific generation target or by the operator manually varying the target. The required output of the generators is set depending on contracts entered by EnergyAustralia and by demand at any particular time. Operators are advised of the required output levels by management and, in the normal course, are expected to comply with the direction of management.
● There was no evidence of any other mechanism of adjusting the output of the generators such that EnergyAustralia could have been confused as to how bans limiting output might be put into effect. The manual or automatic methods of adjusting output would not create confusion. The evidence is that the change is caused by the operator doing something as required by the employer.
● EnergyAustralia is aware of how output will be limited such as to satisfy its desire to understand the bans. Despite the unusual wording of the notice the bans limiting output will result in the operators not adjusting the generators to the target output required by management such that the generators will operate at 240 MW. Mr Hogarth is aware of the bans that the CFMEU intends to put in place and how they will be put into effect.
[25] Next the Commissioner considered the consequences of the use of the word “bans” in the notice. She found that when the action was understood in the context of EnergyAustralia’s enterprise it was clear that the action proposed was a ban in the generally accepted use of the word. The operators would not do some specific work that they would otherwise normally do. They would not act on any request or respond to management direction to alter the output of the generators to meet the output required. The operators would refuse to accept communications or direction from management as to the output it required and would instead reduce the output of generators to 240 MW and then subsequently take them back to the required levels. She concluded that the notice was sufficient to enable EnergyAustralia to know what action would be taken by operators in implementing the bans. The notice was adequate to give information to enable defensive measures to be taken. 9
[26] The Commissioner next referred to a notice EnergyAustralia had provided to employees in accordance with s.471(1)(c) of the FW Act. This is a notice which an employer gives to an employee when, because of a partial work ban, the employer proposes to proportionately reduce the employee’s payments. The CFMEU had relied on the content of the notice to submit that it showed the employer well understood the nature of the work bans that were proposed to be undertaken by the employees. EnergyAustralia submitted that despite its description of the nature of those bans it should not be taken as a concession about the adequacy of the s.414(6) notice. The Commissioner accepted EnergyAustralia’s submission but noted that the s.471 notice was consistent with the conclusion she had drawn as to its understanding of how the action described in the s.414(6) notice would be implemented. In her conclusions, the Commissioner indicated that in reaching her decision about the adequacy of the s.414(6) notice she did not rely on the content of the s.471(1)(c) notice.
[27] Next the Commissioner addressed the complaint that EnergyAustralia did not know when the industrial action would commence or when it would finish. She said she understood it wanted to be aware at all times of the exact amount of output from each of the generators. It wanted to know the rate at which they would be taken down to 240 MW and the rate at which they would be returned to normal. It wanted this detail so it could provide appropriate information to its energy markets team. The Commissioner said that she was not convinced that the level of specificity sought was necessary or required by s.414(6). She referred to Davids Distribution Pty Ltd v National Union of Workers (Davids Distribution) as authority for the proposition that absolute precision in a notice would impose an obligation almost impossible to fulfil and failed to recognise the dynamic nature of an industrial dispute.
[28] Insofar as EnergyAustralia had said it was not aware if the times given in the notice were Australian Eastern Daylight Savings Time or “Market Time” (which is one hour earlier) the Commissioner said it was clear that the time was intended to be read as local time. She found no substance in this complaint and described it as mischievous. She found the notice adequately conveyed the time the proposed action would commence and finish each day and that no greater level of particularity was required.
[29] The Commissioner next made findings about the complaint EnergyAustralia made that it did not know the identity of the persons who would engage in the industrial action. She found it was clearly aware of the identity of the class of employees who would be engaging in the action. It was the operators. The evidence had not suggested any other class of employees may be involved. She said that there was nothing in the scheme of the FW Act which suggested that it was necessary for EnergyAustralia to know the precise name of the operators who may be union members and participating in the action.
[30] The Commissioner then addressed the fourth reason given as to why the notice was deficient in that it left EnergyAustralia not knowing what steps it could take to rearrange its affairs to meet the inconvenience, risk and financial losses as a consequence of the proposed action. The Commissioner said that while the purpose of the notice was to enable an employer to take defensive action it was not the purpose of the notice to enable the employer to meet inconvenience, risk and financial shall loss as it asserted. If that were the purpose of the notice there will be little utility in taking industrial action. No decision had been referred to which stood for the proposition that the notice was to serve the purpose as asserted by EnergyAustralia.
[31] The Commissioner concluded that her decision had been “finely balanced”. Despite the asserted inadequacies of the notice EnergyAustralia fully comprehended what was intended by it and how the proposed action would manifest. The notice had served to put it in a position to take defensive measures. The notice complied with the requirements of s.414(6) of the FW Act and, accordingly the proposed action was protected industrial action and no s.418 order would issue.
The evidence - some additional extracts
[32] As we have earlier indicated Mr Hogarth was the only witness to give evidence in the proceedings below. He was cross-examined. We have referred to comments made by the Commissioner about his evidence. Some specific extracts were referred to by counsel in the appeal before us and additionally we have considered ourselves the evidence before the Commissioner. It is appropriate that we refer to that transcript.
[33] He was asked to explain what an operator would do in order to cause the generation to reduce from 395 MW down to 240 MW. His answer was that in order for that to happen, an operator would have to do what he normally does in his duties when load is reduced. He said he could do that in a number of ways. He listed the numerous ways in which an operator could input information to achieve a certain output and the rate at which that was to be reached. 10
[34] Mr Hogarth accepted that the term ban was commonplace, not necessarily a legalistic term and something that ordinary people in the street would use. His interpretation of it was that an employee is choosing not to do something that he would normally do in his day-to-day activity. 11
[35] He said that management will communicate to the power station operators and say or direct them to increase or decrease output for reasons of supply to the national grid. In the normal course he would expect those power station operators to comply with any such directions. 12
Relevant judgments and decisions
[36] A number of decisions of the Federal Court of Australia and the Commission have considered the role and purpose of a notice of intention to take protected action and the adequacy of the content of such notices. We refer to those we believe to be the key decisions and we do so in the chronological order in which they were published. The first is Davids Distribution. 13 The proceeding which that appeal related to was an application which had been made by the union under the then s.170MU of the WR Act asserting the employer had dismissed employees wholly or partly because they were engaged in protected action. The employer had dismissed employees who had been involved in strikes and picketing and the question that arose was if picketing came within the definition of industrial action and could therefore be protected action. The appeal was against the grant of an interlocutory injunction restraining the employer from terminating the employment of its employees.
[37] The Full Court 14 found that picketing was not industrial action and, at paragraph [77], said that conclusion made it “strictly unnecessary” to determine the issue about whether the notice was in terms which made it effective to attract the immunity for protected action provided by the WR Act. However, it decided to consider that matter commenting that the issue was of general importance and had been fully argued before it. The notice had been given under the then s.170MO(5) of the WR Act. We here interpose to note that we have earlier reproduced that section and note that it was in similar, but not identical terms to s.414(6). About the terms of s.170MO(5) the Court said:
“[84] The question addressed by North J in the lengthy passage just quoted is one of considerable difficulty, about which people may reasonably reach different conclusions. Parliament did not indicate what degree of specificity it intended by the term “nature of the intended action”. To interpret this term, on the one extreme, as requiring no more than an indication of industrial action, as argued by NUW, would be significantly to devalue s170MO(5); the notice would provide little information. To interpret it, on the other extreme, as requiring precise details of every future act or omission would be to impose on the giver of a notice an obligation almost impossible to fulfil. 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 or other people, including governments, and changing circumstances. It would be a major, and unrealistic, constraint on industrial action to require a party to specify, three clear working days in advance, exactly what steps it would take. An unduly demanding interpretation of s170MO(5) would seriously compromise the scheme of Division 8 of Part VIB of the Act; it would be difficult for a party to an industrial dispute to obtain the protection contemplated by the Division.
...
[86] Another reason for rejecting North J’s approach is that it places a premium on legalism. Framers of notices would need to undertake a careful analysis of the definition of “industrial action”, in the way North J did, in order to identify the paragraph which best fits the contemplated activity. Bearing in mind that notices will often, perhaps ordinarily, be prepared by non-lawyers acting without legal advice, it is unlikely Parliament intended that result.
[87] We think s170MO(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 shut down. If warned in advance of a ban that might affect the continued operation of that plant, the employer might choose a controlled shut down during the period of the 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 industrial 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 lockout 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.
[88] It will be apparent we think it necessary, and sufficient, for parties to describe the intended action in ordinary industrial English; for example, “an indefinite strike of all employees”, “a lockout of all employees employed in the AB fabrication plant”, “a ban on overtime”, “a ban of the use of MN equipment”, “rolling stoppages throughout the mine”, “a ban on the servicing of delivery vehicles.”
[38] Davids Distribution was considered and applied by a Full Bench of Fair Work Australia in Telstra Corporation Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Telstra). 15
[39] The Full Bench said:
“[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 of contrast with the language of s.170MO 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 their 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 Davis Distribution, 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 the 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 industrial 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.”
[40] The Full Bench also said:
“[18] In concluding it should be emphasised that whether a particular notice meets the requirements in s.414(6) will depend upon the terms of the notice and the industrial context. Every case is different and each notice must be looked at having regard to all of the relevant considerations.”
[41] The next relevant decision is the Federal Court decision of Justice Merkel in Construction, Forestry, Mining and Energy Union v Yallourn Energy Pty Ltd (Yallourn). 16 This matter concerned an argument about the adequacy of a s.170MO(5) notice given by the CFMEU to the employer. The following extracts from that decision were referred to by either the Appellant or the CFMEU.
“[17] In Yallourn Energy I considered whether a notice relating to certain bans and rolling stoppages at the employer's sites complied with s 170(5). I expressed the view (at 214) that, as legal immunity is conferred in respect of protected industrial action, it is of obvious importance that the nature of the proposed action be specified accurately, as a failure to do so will be likely to lead to uncertainty and litigation as to whether the action taken subsequent to the notice is protected under the Act. Accordingly, it is critical that the particularity be sufficient to enable the parties to be aware of the nature of the intended action and whether the action actually taken in reliance on the notice is or is not protected action when it is taken.
...
[20] In each of the cases to which I have referred the issue related to whether the generality of the notice was such that it had failed to state with sufficient clarity the nature of the intended action. A different issue arises in the present case as the notice relates to action to achieve a particular outcome rather than to action to be taken irrespective of the outcome. Accordingly, it was contended by counsel for Yallourn Energy that the notice relates to action that might be taken, rather than the action intended to be taken, and therefore it failed to describe the nature of the "intended action": see Davids Distribution at 495.
[21] Whether a notice is sufficient to comply with s 170MO(5) can involve questions of fact but will more usually involve questions of degree. When assessing such questions, as was stated in Davids Distribution at 495, it is important that the inquiry does not place a premium on legalism; rather the inquiry is as to what the notice would convey "in ordinary industrial English" to the reader. Further, the purposes for which the notice is given (to which I have referred above) can be relevant factors in determining whether a notice adequately or sufficiently conveys the nature of the industrial action intended to be taken: cf A1 v National Crime Authority (1996) 67 FCR 464 at 479-481 and National Crime Authority v A1 (1997) 75 FCR 274 at 277 and 294.”
[42] Yallourn Energy submitted to Justice Merkel that the notice stated the outcome of the industrial action intended to be taken, rather than the nature of that action which, it argued, could take a number of different forms, none of which were specified in it. This is an argument run again by the Appellant in this appeal. About this His Honour said:
“[30] Yallourn Energy contended that other steps, namely those specified in paras 61(d), (e), (f) and (g) and 62(b), (e) and (f) of Mr Smith's affidavit could also be utilised to reduce generation and coal tonnage. While the evidence discloses that certain steps, such as overtime and repair bans, could, together with other factors, contribute to a limiting or restricting of generation or capacity, in my view the specificity of the outcomes of the intended action would not be taken by the employer to embrace action which is not capable of achieving those outcomes. On a legalistic view, the notice may be taken to be capable of extending to such action, but it is unlikely that it would be taken to convey to the reader in "ordinary industrial English" that that was the action intended to be taken. The specificity with which the output and capacity is stated would enable the employer, with a relatively high degree of certainty, to identify the nature of the industrial action that is intended to be taken by members of the Union.
[31] Further, the Union's affidavit evidence, which was not disputed, was that Yallourn Energy would understand the notice to refer to the direct action as set out in either the Union formulations or the Yallourn Energy formulations because that is how it would give operating instructions if it sought to achieve the specified outputs. Mr Smith of Yallourn Energy had no difficulty in stating the action that is necessary to achieve the stated outcomes. Thus, upon receipt of the notice, Yallourn Energy would be well placed to take such defensive action as it may be advised to take. While the precise action to be taken is not stated, and therefore the defensive action may not be able to be precisely formulated, that limitation is inherent in the requirement that it is only necessary to notify the employer of the nature of the intended action, rather than the actual intended action. Yallourn Energy would also be well placed to determine whether the action actually taken in reliance upon the notice is or is not protected action when it is taken.
[32] It is significant that the notice states specific output and capacity figures which would be understood by the employer to be achievable only by the taking of well known and well understood action by employees who are members of the Union. A quite different situation would apply if the notice stated that limitations or restrictions were to be imposed on output or capacity up to a stated figure, rather than to a stated figure. A notice in that form would be likely to be so general that it would fail to convey to the reader the nature of the intended action. Such a notice would convey to the reader the action that might be taken, rather than the action intended to be taken. In that event, the notice would not comply with s 170MO(5).
[33] Finally, a danger inherent in stating an outcome rather than specifying the action designed to achieve it, is that the intended action may not be able to be clearly identified as protected action until after, rather than before, it is taken. If that were the case, the notice would be unlikely to comply with s 170MO(5) as, inter alia, it would render nugatory the purpose of giving 3 days prior notice in respect of the intended action. However, in the present case, as the steps that are capable of achieving the stated outcomes were well known and understood by Yallourn Energy, they were able to be identified as such prior to, rather than after, the steps being taken.
[34] In those circumstances I have formed the view that the notice sufficiently and adequately states the nature of the intended action. Accordingly, on the basis of the material presently before the Court, the preferable view, albeit on a prima facie basis, is that the notice does comply with s 170MO(5).”
[43] The next decision is of Justice Barker in Alcoa of Australia Limited v The Australian Workers’ Union (Alcoa). 17 The issue there was whether the applicant was entitled to an interlocutory injunction restraining the union from issuing a notice of purported protected industrial action pursuant to s.414 of the FW Act if the notice failed to specify the commencement time and duration of the proposed industrial action described in the notice.
His Honour noted that he had not been referred to any case in which the issue about specifying the duration of proposed industrial action with particularity, had been finally decided. 18 He said:
“[33] For myself, while I accept the admonition of Goldberg J that a matter may not be so simply decided, one would have thought, taking the text of s 414(6) at face value, that because the Parliament has chosen to impose some notice requirements of industrial action when, prior to the Workplace Relations Act 1996 (Cth), there were none, a court should be slow, in effect, to travel beyond the plain words of the provision. The requirement to specify the “nature of the action” and then separately “the day it will start”, do not, of themselves, suggest to me that it is also necessary to particularise the commencement and finishing time of the proposed action in a notice. For the Court to supply this degree of particularisation might be seen to supplant the role of the legislature in prescribing industrial behaviour, a matter of continuous contention over the course of this country’s history since Federation in 1901.
[34] Nonetheless, along with Goldberg J and Gilmour J, I accept that there may well be an argument, particularly in the circumstances of a particular case, that in specifying the “nature of the action”, having regard to a particular action, it may in some cases be necessary to say something about the commencement and/or the conclusion times of the industrial action. But it is not a requirement that, to my mind, immediately leaps to the eye from the text of s 414(6).
[35] I consider, therefore, there is force in a submission made on behalf of the union in this case that s 414(6) should be construed with an understanding that under the FW Act the respondent has the right to engage in protected industrial action. Generally, the reason for industrial action is to cause a degree of inconvenience and expense to the employer as a legitimate bargaining tool. The fact that the applicant may suffer a loss of profits and its operation and staff may be inconvenienced is no reason of itself to find that a notice should as specific as the applicant in this case would like it to be.”
[44] The next case we should refer to is the decision of Justice Greenwood in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Pinnacle Career Development Pty Ltd 19 (Pinnacle). The union had sought a declaration that the employer had contravened provisions of the FW Act by taking certain action against employees who had participated in protected industrial action. His Honour’s reasons addressed s.414(6) of the FW Act. In the course of those reasons he approved the comments that had been made by the Full Bench in Telstra. Relevant extracts from the judgment are as follows:
“[56] The Statement of Agreed Facts does not convey any sense of the scope or scale of the respondent’s undertaking although it may properly be inferred that an enterprise that provides vegetation inspection services and pruning and removal services is not a large scale corporation. In Telstra at [12] the Full Bench observed that the purpose of the notice requirement is to give the “recipient” (put more generally) of the notice an opportunity to respond to the action by making relevant preparations or considering a particular response. That purpose is entirely consistent with the observations about the purpose of notice provisions expressed by the Full Court of the Federal Court in Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999) 91 FCR 463 at [87]. In Telstra at [12], the Full Bench also noted that “[w]hether the notice is adequate may depend on the nature of the employer’s operations including their 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”. In Telstra, the question in issue was the adequacy of notice given on behalf of employees in circumstances where Telstra employed 34,000 employees.”
[45] His Honour referred to and commented upon the wording of the notice in Telstra and then said:
“[58] These observations suggest that the adequacy of a notice for the purposes of s 414(6) must be examined in context. An assessment of adequacy must take account of all the circumstances and examine expressions used in the context of whether the concepts embodied in the expressions are well recognised in workplace relations. The adequacy of the notice must take account of the practical applied circumstances of the workplace and whether the purpose of a notice is served by giving the addressee an understanding of what is contemplated and when it will occur so as to provide the recipient with an opportunity to consider his or her position and act or respond in a particular way (or as in this case, engage in the foreshadowed conduct set out in the notices “RF3” and “RF7” to which the challenged notices respond).”
[46] We now turn to the grounds of appeal bearing in mind the foregoing comments as to the construction we should place on s.414(6), the purpose of a notice under that section, the level of specificity it should contain and the industrial context in which it is given.
The grounds of appeal
[47] We refer first to a submission made by the CFMEU which, if accepted, disposes of the appeal without the need to further consider any of the grounds of appeal. The CFMEU referred to the fact that the Appellant had not objected to the issue of the protected action ballot order which, as we have earlier noted, identified that one type of industrial action that would be taken would be “bans limiting the output of individual generators”. It submits that this was evidence that the Appellant understood the nature of the proposed industrial action. It submitted that in the circumstances permission to appeal should not be granted. We have considered this submission together with the terms of ss.437(3)(b), 443(3)(d) and 414(6). We have referred to the terms of these sections earlier. There is much to be said, in our opinion, for an argument that the detail of what is required when specifying the nature of the action as required by each section should be read consistently. If that is so it seems to us that the acceptance by the Commissioner that question 4 in the protected action ballot order adequately specified the nature of the proposed industrial action that would be taken then the use of those words in the s.414(6) notice may be adequate to comply with the requirements of that section. The only additional requirement would be to state the day on which that action would start and there was no issue in this appeal that that requirement had been satisfied. We acknowledge that the requirement in s.414(6) is to specify the proposed action not, as in the other sections, to specify the proposed industrial action. The Appellant suggests that this is of some consequence but the argument, not having been put below and principally arising on appeal because of questions from the Bench, was not developed further. We were not persuaded to rely upon this ground to dispose of the appeal. Whether this construction of the relevant sections of the FW Act is correct is best left to another occasion when an opportunity arises for it to be fully addressed.
[48] Before we refer to the grounds of appeal we should say something about the circumstances in which the Commissioner was required to give her decision. The matter was called on by her on very short notice and the evidence was limited. We think it fair to observe that the Appellant appeared to proceed on the basis that the evidence of Mr Hogarth was considerably more detailed than in fact it had been. This is particularly relevant to the criticism made on appeal that the Commissioner misunderstood his evidence.
[49] The Commissioner published her reasons for decision very promptly. It is not suggested that she overlooked any of the various grounds upon which the Appellant had challenged the s.414(6) notice nor failed to consider the evidence or case law. What is submitted is that her conclusions on the evidence should not have been reached or that she did not apply the case law in the manner in which the Appellant submitted would have been appropriate. We were not inclined in the circumstances of this appeal to read the Commissioner’s decision by trawling through it keen to identify any imprecise expression. They would be neither fair nor appropriate. 20
[50] We also observe that on appeal we were referred in more detail to relevant decisions that the Commissioner had been referred to. In particular we note that Yallourn was not brought to the Commissioner’s attention.
[51] The grounds as pleaded were refined on appeal and additional issues added in the Appellant’s written submissions (which were provided to us and the CFMEU shortly before the hearing commenced). Some matters were raised which were not raised before the Commissioner. A number of considerations relevant to one ground of appeal are also relevant to other grounds. We will address the grounds of appeal as they were pleaded noting that was the way the CFMEU had prepared its written submissions. In that context however we will also address what the Appellant described as the issues raised by the appeal.
[52] We will commence with ground 4. The earlier grounds are general and pleaded that the Commissioner erred in not granting the s.418 order sought and in finding she was satisfied the notice complied with the requirements of s.414(6). The particulars of the alleged errors are addressed in grounds 4 to 8.
[53] The Appellant submitted that the Commissioner misdirected herself as to the proper legal test to be applied when determining whether the notice given by the CFMEU satisfied the requirement that it specify the nature of the action to be taken. The Appellant submitted that the Commissioner placed undue weight on the right of employees to pursue protected industrial action and thereby read down the level of specificity required for a notice to comply with s.414(6).
[54] Although the issue about the level or degree of specificity required is raised in a number of grounds this ground relates to the Commissioner’s comments in paragraph [36]. In that paragraph the Commissioner said that the level of specificity required so that an employer may take defensive action must be balanced against the right of employees to take protected industrial action in the context of bargaining for an agreement.
[55] We are not persuaded the Commissioner was in error as submitted. The Appellant isolates the comments made by the Commissioner in paragraph [36] from the surrounding paragraphs. They should not be taken out of the context in which the impugned remarks were made. The Commissioner was considering the purpose of a s.414(6) notice and the role of industrial action within the bargaining framework of the FW Act. In that context she referred to the decisions in Alcoa and Davids Distribution. In Alcoa Justice Barker had noted that s.414(6) should be construed on the understanding that there was a right to engage in protected industrial action. The fact an employer may suffer a loss of profits, inconvenience or expense was not a consideration of itself to have required the level of specificity which the employer had sought in that case. It is not suggested that the reference made by the Commissioner to Davids Distribution was inappropriate nor her remark that the level of specificity required was to be considered having regard to the nature of the relevant enterprise and all relevant considerations. We also note that in this part of her reasons the Commissioner referred to an earlier decision of her own in Berkley Challenge Pty Ltd t/as Spotless v United Voice 21 (Berkley). She had there made the same observation as is now challenged by the Appellant on appeal. That is, she commented on the right of employees to take protected industrial action and on the role and purpose of a s.414(6) notice. The same extract from Berkley was referred to by the Appellant in its written submissions before the Commissioner. Counsel for the Appellant also submitted to the Commissioner that an appropriate balance was to be found between the employer knowing what was about to happen in the context of bargaining together with employees being able to take action. We are not persuaded any error as asserted has been made out.
[56] Another aspect of this ground of appeal is the Appellant’s submission that the Commissioner was in error in failing to give proper consideration and weight to the important statutory obligation imposed by s.414(6), including the function of the notice in defining the scope of immunity from civil suit available to persons pursuant to s.415. The Appellant submits that as the immunity afforded by the protected action provisions of the FW Act exempted an employee from liability for industrial torts an interpretation of the relevant provisions should be consistent with the approach taken to other exemptions from liability provisions.
[57] About this challenge we adopt the CFMEU’s submission. The Appellant seems to suggest that this consideration should have been expressly dealt with by the Commissioner and in failing to do so she was in error. However, we were not taken to any such requirement in the FW Act in support of the construction for which the Appellant contends nor any decision indicating it is a necessary or relevant consideration. It is significant that the submission does not appear to have been made to the Commissioner below. The CFMEU submitted that it had been unable to find any reference to this matter in the Appellant’s written or oral submissions to the Commissioner. In these circumstances we were not inclined to grant permission to appeal in respect to this aspect of this ground of appeal.
[58] The next challenge is to what we will describe as the adequacy of the notice arguments. The Appellant submitted that the CFMEU notice failed to specify the nature of the industrial action to be taken with sufficient particularity such as to put it in a position to take appropriate defensive action.
[59] The approach to be taken to the degree of specificity required is informed by the comments made in Davids Distribution (and the subsequent decisions which have each adopted those comments). It is clear, in our opinion, the Commissioner well understood this. The Appellant seems to require a degree or level of particularity in the notice which has been expressly disapproved of. It is not necessary for the notice to contain precise details of when and how every future act or omission will or may occur. The specificity the Appellant seeks would constitute, in terms used in Davids Distribution, a major and unrealistic constraint on the protected industrial action that could be taken.
[60] The enquiry the Commissioner undertook as to the adequacy of the notice in this case was consistent with the approach in Telstra in that she considered the nature of the Appellant’s operations, the location where the action would occur and its timing and the type of employees who would participate. Indeed, as to these considerations, there is little room for disagreement.
[61] Her approach was also consistent with that endorsed in Pinnacle although we note that decision was not drawn to the Commissioner’s attention. 22 The context and surrounding circumstances were considered by her. The terms used in the notice were also considered in what Pinnacle described as “the practical applied circumstances of the workplace”. In this respect she considered the evidence given on behalf of the Appellant and found that the terms of the notice were sufficient to give an understanding of what was to occur. It gave the Appellant adequate information to consider its position and take such defensive action it saw fit.
[62] We are not persuaded the Commissioner was in error in any of the findings she made. Each was reasonably open to her on the evidence. To the extent her findings concerned aspects of Mr Hogarth’s evidence as to the uncertainty the words in the notice caused him we refer to this in more detail in dealing with appeal grounds 5 and 7. As we have earlier observed many of the considerations raised by the grounds of appeal overlap and are common to a number of them.
[63] We next turn to the fifth ground of appeal. The Appellant submitted that the Commissioner erred in holding that the proposed industrial action to be taken pursuant to the notice was a ban and thus erred in finding that the notice properly specified the nature of the action. It submitted that the Commissioner misunderstood the evidence and misdirected herself as to the ordinary industrial usage of the word ban. The Commissioner held that the implementation of the proposed industrial action would take the form of employees not responding to management requests to alter the output of generators. It submitted that the evidence was that the implementation of the proposed industrial action would involve employees taking the positive act of reducing or limiting power generation to 240 MW for a period of time by adjusting the control system to that end. It asserts that such conduct does not involve a prohibition or limitation or restriction on the performance of work and therefore, is not a ban. The Appellant also submitted that by the inclusion of the word “bans” the notice was ambiguous and misleading in its description of the proposed industrial action.
[64] In support of its submission the Appellant relies on an extract from the decision of Justice Jessup in Williams v Construction, Forestry, Mining and Energy Union (Williams) 23. It submits that a ban is a prohibition on or against something. It is a total prohibition of all of the relevant work, something that was absolute or categorical and not merely a matter of inclination or preference. It is important, in our opinion, to understand that the observations made in Williams arose in the context of a consideration of the phrase “ban, limitation or restriction” those being words which have been contained in the definition of industrial action in federal legislation for some years. It was observed, in that context, that a ban was something more than a “lesser interference” as the other two words suggested. That is not the context in which the word “bans” is here used. It is accepted that the notified action being “bans limiting the output of individual generators etc ...” was industrial action as defined by the FW Act. The enquiry here is whether the terms of the notice, which contain the word “bans” is sufficient.
[65] We agree with the submission of the CFMEU that the effect of the Appellant’s submission is that the proposed limitation on output is not a ban because it will allow some output. The Commissioner did not accept this nor do we. What is banned is output of individual generators beyond 240 MW. The Appellant concentrates only on the word “bans” and does not read it in the context of the whole of the description of the action which was notified in the s.414(6) notice. The means by which the limitation on output could be implemented was well known to the Appellant. In this respect it is the nature of the action that is to be taken which is to be contained in the notice. We interpret the word nature in this context as the features, character or qualities of the action. To achieve the limitations on output the nature of the action would be that work the operators would normally do or is part of their normal duties will not be done. They will not operate the generators in the usual manner to that normally expected of them or as may be directed. The Commissioner was not in error, in our opinion, in the manner in which she dealt with the meaning to be ascribed to the words in the notice and, in that context, the use of the word bans.
[66] In respect to this ground we also note the evidence of Mr Hogarth that he understood the word ban was commonplace and something ordinary people would use. He accepted it meant an employee choosing to not do something he would normally do in his day-to-day activities. In our opinion that evidence, together with the evidence we refer to when considering ground 7, was relevant for the Commissioner to take into account. It ascribes an ordinary industrial English construction to the terms used in the notice as endorsed in Davids Distribution and Yallourn. The construction the Appellant places on the terms of the notice is an example of putting a premium on legalism.
[67] The next challenge the Appellant made to the notice was that it was ambiguous and therefore defective because it described the outcome of proposed industrial action rather than the nature of the action itself. It submitted that as the notice referred to output it said nothing about the industrial action which was to take place nor the way in which work would be performed once the action was implemented. About this ground the Appellant acknowledges the decision of Justice Merkel in Yallourn but submits that the notice there considered by his Honour could be distinguished from that in the present proceedings. We are not persuaded it is so readily distinguishable. The fact the notice there considered referred to the action which would be taken only as “industrial action” seems to us more likely to give rise to doubts about what was to occur than the use of the word “bans”. Yallourn cannot be properly distinguished on the basis that in that case the action was to commence at one identified time on a particular day in contrast to action here which was to take place daily during two time spans. In either case the output will be reduced and then ramped up. In fact it is fair to observe that a key concern of Mr Hogarth was not knowing the exact rate at which the generation would be ramped up or down. That concern would equally apply to a notice in terms given in Yallourn and to the notice in this case. Yallourn, in our opinion, is the answer to the Appellant’s complaint that the notice was ambiguous insofar as it described the outcome of the action that would be taken.
[68] Here, as in Yallourn, it was open to find that the specificity with which the output and capacity was stated would enable the Appellant, with a relatively high degree of certainty, to identify the nature of the industrial action that was intended to be taken by members of the CFMEU. The Appellant well knew the action that could be taken to achieve the specified outputs. Indeed in this case the possible ways in which generation could be limited were far fewer than the possible ways referred to in the evidence in Yallourn. It was open to the Commissioner to find that the Appellant knew what action would be taken to achieve the stated outcomes. Accordingly, it would be able to take such defensive action as it may wish to take. As Justice Merkel observed, while the defensive action may not be able to be precisely formulated, that limitation is inherent in the requirement that it is only necessary to notify the employer of the nature of the intended action, rather than the actual intended action.
[69] In ground 6 the Appellant submitted that the Commissioner erred in holding that the absence of information about the rate at which operators would reduce or increase power output was not a basis on which to find that the notice failed to comply with the requirements of s.414(6).
[70] It submitted that having regard to its circumstances a notice will not specify the nature of the action unless it discloses the proposed rate of power reduction to 240 MW or rate of increase from 240 MW. It submits that the issue of winding up and down was very significant because depending on the rate at which that occurred there could be significant differences in the period of time when output was affected.
[71] We are not persuaded by this argument. It was clear from the evidence before the Commissioner that the only protected action that could be taken would be that which occurred within the periods of 7am and 9am and 4pm and 6pm. We have referred earlier to the evidence of Mr Hogarth identifying these as being the only times in which action might be protected. The notice here, as in Yallourn, stated the figure to which output would be limited. There was also evidence about the rate at which power is, in the normal course of operations, reduced or increased. If output was to be adjusted more quickly there was a risk the generator would be tripped. There was no basis for the Commissioner to have considered that there was any intention on behalf any operators that they would reduce or increase speed at a rate other than that consistent with the normal course nor that they would do so in a manner which may present any risk. We are not persuaded there was any requirement for further detail as the Appellant suggests. None of the decisions we have earlier referred to suggest that it was necessary for the notice to have contained any additional particulars about the ramp up and ramp down rates. We agree with the CFMEU submission that the notice contained sufficient specificity as to the nature of the action and no case supported the need for detail as to each and every step that would be taken to implement the action or each and every consequence that will or may follow from the action.
[72] The seventh ground of appeal alleges error in the Commissioner’s finding that the Appellant fully comprehended what was intended by the notice and how the proposed industrial action would manifest. It submitted that her finding was against the weight of the evidence and disregarded the affidavit evidence of Mr Hogarth to the effect that he was unclear about the nature of the action proposed and how operators will achieve the outcome in the notice by refraining from normal and customary duties. The Appellant submitted that the evidence before the Commissioner in fact pointed in the opposite direction to that found by her in that it did not know when the action was to start, finish, what type of action would be taken which would lead to the proposed generation outcome nor the identity of employees who would engage in any action at any point in time.
[73] The Commissioner, it should be noted, is a member of the panel in which the electrical power industry resides. It is appropriate to acknowledge her familiarity with the industry and the dynamics of industrial disputation between these parties. The witness evidence was challenged in cross-examination and the submissions of counsel for both sides tested in questions she raised. In our opinion, the findings she made as to the level of understanding or comprehension the Appellant had (or would reasonably be expected to have) were open to her. She did not have to accept the claimed level of confusion asserted by the Appellant as it seems to suggest on appeal.
[74] In reaching our conclusion on this ground of appeal we have taken into account the following matters. The notice applied to a single enterprise in which it was well known how power generation was increased and reduced. It was also known that the employees, namely the operators, would be the persons who would be taking the action to reduce power output to the 240 MW target and then to increase it to the target which would, but for the bans, otherwise be required. It was part of the normal role of operators to adjust output. Mr Hogarth said:
“The output of generators can be varied automatically by inputting the generation target to which the generator is to be set and the rate at which the change is to be made. This requires an operator to perform this task. Alternatively, the output of generators can be varied manually by operators. Currently, one of Energy Australia's generators has a fault which requires variations to its output to be carried out manually.” 24
[75] The evidence of Mr Hogarth we have referred to earlier at paragraphs [24] and [33] to [35] also supports the findings made by the Commissioner as to what the Appellant would have understood by the terms of the notice. We agree with the CFMEU submission that a fair reading of Mr Hogarth’s evidence was that the asserted basis for confusion was not what action would be taken to achieve the identified limitation on output but his inability to advise his energy markets team at all times of details of the rate of generation. As we have earlier indicated we do not read the decisions or the terms of s.414(6) as requiring that level of detail.
[76] Although the requirement in s.414(6) is for the notice to state the day on which the action will start the notice in this case additionally stated the time spans in which the action would occur. In this aspect we note the comments of Justice Barker in Alcoa that it is not readily apparent that actual starting and finishing times are required by s.414(6). In any event, this additional information was relevant for the Commissioner to take into account when considering if the notice contained adequate information to allow the Appellant to take the defensive action it may decide is necessary. We are not satisfied this ground of appeal establishes any appealable error.
[77] The eighth ground of appeal concerns comments made by the Commissioner about the s.471 notice the Appellant had given to the CFMEU and employees. The Appellant submitted that in considering the adequacy of the s.414(6) notice the Commissioner took into account the content of the s.471 notice which was an irrelevant consideration. The Appellant suggests that the Commissioner was swayed by the content of this notice in reaching her conclusion about whether the s.414(6) notice complied with the FW Act.
[78] A notice under s.471 is required to be given by an employer to an employee where the employee has engaged in industrial action that is a partial work ban and, as a consequence, the employer intends to make a proportional reduction in the employee’s payments. In this case the notice was given to the CFMEU and employees on the day before the hearing of the s.418 application and sent to the Commissioner the day after. The notice had described the bans being engaged in by the employees as partial work bans and that they “will amount to a refusal to operate the generators as directed during the period in which the bans are applied”.
[79] The short answer to this ground of appeal is that the Commissioner expressly indicated she did not rely on the content of the s.471 notice when reaching her conclusion on the s.414(6) notice. 25 No adequate basis was established by the Appellant for us to entertain any doubt about those comments. Despite this ruling we indicate that it is at least arguable that the content of the notice may well have been relevant to cast some doubt on the asserted misunderstanding and confusion caused by the content of the notice. However, there is no need to deal further with that consideration in this decision.
Conclusion
[80] We agree with the Commissioner that the notice could have better described the nature of the action which was to be taken. Its terms should not be considered a good template for future notices. However, for the reasons we have given, we are persuaded the notice complied with the requirements of s.414(6) and served the purpose for which such a notice is required.
[81] The construction of s.414(6) and the considerations which may be relevant to take into account in considering if a notice is adequate have been considered on a number of occasions. There is no suggestion those decisions should be departed from. The grounds of appeal raise considerations peculiar to the Appellant’s operations and the terms of the notice under consideration in this appeal. They do not raise matters of wider or general importance. They do not require the consideration of issues of principle such as may warrant a Full Bench rehearing. We were not persuaded the appeal raised matters which, in the public interest or otherwise, warranted the grant of permission to appeal.
SENIOR DEPUTY PRESIDENT
Appearances:
J. Forbes, counsel for the appellant.
S. Crawshaw SC and R. Reitano, counsel for the respondent.
Hearing details:
2013.
Sydney.
23 February.
2 [2013] FWC 493 at [4]
3 s.409(2)
4 S.409(1)(c)
5 Eg See the grounds set out in the s.418 application, PN 132 before the Commissioner
6 s.170MK
7 Paragraph [12]
8 Paragraphs [41] to [47]
9 Paragraphs [49] to [53], [58], [77] and [79]
10 PN60
11 PN76 - 78
12 PN81,82
13 [1999] 165 ALR 550
14 We note Justice Burchett’s dissent but that it was on a matter not relevant to this appeal - he agreed with the majority on all other matters.
16 [2000] FCA 1070
17 [2010] FCA 278
18 Ibid at [32]
19 [2010] FCA 1350
20 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 259 at 272
22 [201] FCA 1350 at [56]
23 [2009] FCA 223
24 Exhibit E1,Paragraph [15]
25 Paragraphs [57] and [78]
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