FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW – Bargaining period – Alleged “protected action” by employees – Threat by employer to injure employees in their employment or alter their position to their prejudice – Whether threat occasioned wholly or partly from the employees being engaged in industrial action – Notice initiating bargaining period particularised proposed nominal expiry date of proposed certified agreement by reference to commencement date of that agreement – Whether notice effective – Notices of proposed industrial action gave less than three clear days’ notice of action – Whether action was protected action.

Workplace Relations Act 1996 – ss 170LF, 170MI, 170MJ, 170ML, 170MO and 170MU

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA v CURRAGH QUEENSLAND MINING LIMITED

NG632 of 1997

JUDGE:          WILCOX J

PLACE:          SYDNEY

DATE:            30 SEPTEMBER 1998

THE COURT ORDERS THAT:

1.                  The Application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

WILCOX J:  The amendments made in 1996 to the Industrial Relations Act 1988 (now the Workplace Relations Act 1996) included substantial changes to the rules governing “protected action” during bargaining periods.  The amended provisions were included in Divisions 9 to 10 of Part VIB of the new Act.  They fall for consideration in this case. 

The proceeding

The Application that initiated this proceeding was filed on 14 August 1997.  Three applicants were named:  Construction, Forestry, Mining and Energy Union (“CFMEU”), Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“AFMEU”) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“CEPU”).  The respondent was Curragh Queensland Mining Limited (“Curragh”), the operator of an open cut coal mine at Curragh, near Blackwater, Central Queensland.  The Application sought declarations to the effect that Curragh had contravened s 170MU of the Workplace Relations Act  in certain respects, injunctions and penalties under s 170NF of the Act.  The Application also sought interlocutory relief but this claim was not pursued.

Prior to the matter coming on for final hearing, AFMEU reached an agreement with Curragh as a result of which it discontinued its action.  However, CFMEU and CEPU pursued the claims made in the Application.  Affidavit evidence was filed on both sides and there was some cross examination of deponents at a hearing on 17 and 18 August 1998.  Although there was dispute about many matters, in the end, only one factual issue requires determination by the Court.  Before setting out the facts, it may be useful to summarise the relevant statutory provisions.

The statutory provisions

Part VIB of the Workplace Relations Act  relates to certified agreements.  The object of the Part is expressed in s 170L (which is in Division 1 of the Part) as follows:

“The object of this Part is to facilitate the making, and certifying by the Commission, of certain agreements, particularly at the level of a single business or part of a single business.”

The remaining provisions in Division 1 contain instructions to the Australian Industrial Relations Commission (“the Commission”), definitions and deeming provisions.  It is necessary to note only that s 170LF provides that, for the purposes of Part VIB, a “working day”, in relation to a single business  or a part of a single business, “is a day on which employees normally perform work in that business or part”.

Divisions 2 to 7 deal with particular types of agreements and the process of certification of agreements by the Commission.  I need not refer to their detail.

Division 8 of Part VIB is headed “Negotiations for certified agreements etc”.  It opens with s 170MI which provides:

“(1)     If:

(a)               an employer; or

(b)               an organisation of employees; or

(c)                an employee acting on his or her own behalf and on behalf of other employees;

            wants to negotiate an agreement under Division 2 or 3 in relation to employees who are employed in a single business or a part of a single business, the employer, organisation or employee (the initiating party) may initiate a period (the bargaining period) for negotiating the proposed agreement.

(2)               The bargaining period is initiated by the initiating party giving written notice to each other negotiating party (see subsection (3)) and to the Commission stating that the initiating party intends to try:

(a)               to make an agreement with the other negotiating parties under Division 2 or 3; and

(b)               to have any agreement so made certified under Division 4.

(3)               In this Division, each of the following is a negotiating party to a proposed agreement:

(a)               the initiating party;

(b)               …

(c)                …

(d)               if the initiating party is an organisation of employees – the employer who is proposed to be bound by the agreement;

(e)                …”

Section 170MJ says:

“The notice is to be accompanied by particulars of:

(a)               the single business or part of the single business to be covered by the proposed agreement; and

(b)               the types of employees whose employment will be subject to the agreement and the other persons who will be bound by the agreement; and

(c)               the matters that the initiating party proposes should be dealt with by the agreement; and

(d)               the industrial dispute (if any) to which the proposed agreement relates; and

(e)               the proposed nominal expiry date of the agreement; and

(f)                any other matters prescribed by the regulations.”

Section 170MK provides that the “bargaining period” begins at the end of seven days after the day on which the notice was given or, if the notice was given on different days to different persons, the later or latest of those days.  Section 170ML explains what is meant by “protected action”, the subject of immunity under s 170MT.  In particular, subs (2) deals with the position of employees:

“(2)     During the bargaining period:

(a)               an organisation of employees that is a negotiating party; or

(b)               a member of such an organisation who is employed by the employer; or

(c)                an officer or employee of such an organisation acting in that capacity; or

(d)               an employee who is a negotiating party;

            is entitled, for the purpose of:

(e)                supporting or advancing claims made in respect of the proposed agreement; or

(f)                 responding to a lockout by the employer of employees whose employment will be subject to the agreement;

            to organise or engage in industrial action directly against the employer and, if the organisation, member, officer or employee does so, the organising of, or engaging in, that industrial action is protected action.”

Sections 170MM and 170MN are not presently relevant.  Section 170MO is important because it contains a notice requirement that Curragh argues was not satisfied in this case.  The section relevantly provides:

“(1)     Any action taken as mentioned in subsection 170ML(2) by:

(a)               an organisation of employees; or

(b)               a member of such an organisation; or

(c)                an officer or employee of such an organisation acting in that capacity; or

(d)               an employee who is a negotiating party;

            is not protected action unless the requirements set out in subsection (2) are met.

(2)               The requirements are that:

(a)               if the action is in response to, and is taken after the start of, a lockout of employees by the employer in respect of the proposed agreement – the organisation, or the employee who is a negotiating party, has given the employer written notice of the intention to take the action; or

(b)               in any other case – the organisation, or the employee who is a negotiating party, has given the employer at least 3 working days’ written notice of the intention to take the action.

(3)               …

(4)               …

(5)               A written notice or other notification under this section must state the nature of the intended action and the day when it will begin.

(6)               A written notice or other notification under this section may be given before the start of the bargaining period.”

It is possible to pass over ss 170MP to 170MS; they deal with situations that did not occur in this case.  Sections 170MT and 170MU are important.  They relevantly provide:

“170MT(1)      …

(2)               Subject to subsection (3), no action lies under any law (whether written or unwritten) in force in a State or Territory in respect of any industrial action that is protected action unless the industrial action has involved or is likely to involve:

(a)               personal injury; or

(b)               wilful or reckless destruction of, or damage to, property; or

(c)                the unlawful taking, keeping or use of property.

(3)               Subsection (2) does not prevent an action for defamation being brought in respect of anything that occurred in the course of industrial action.

170MU(1)  An employer must not:

(a)               dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee’s prejudice; or

            (b)        threaten to dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee’s prejudice;

            wholly or partly because the employee is proposing to engage, is engaging, or has engaged, in protected action.

(2)                …

(3)                In proceedings under section 170NF for an alleged contravention of subsection (1) of this section, it is to be presumed, unless the employer proves otherwise, that the alleged conduct of the employer was carried out wholly or partly because the employee was proposing to engage, was engaging, or had engaged, in protected action.”

Section 170MV indicates the bargaining period ends if any of three events occurs.  They include the Commission terminating the bargaining period.  Power to take that course is conferred on the Commission under s 170MW.  Sections 170MX to 170MZ deal with the situation that then applies.

I need not refer to the remainder of Division 8 or to Division 9.  I go to Division 10 which is headed “Enforcement and remedies”.  It opens with s 170ND whose function is to identify the provisions of the Part that constitute a “penalty provision” for the purposes of Division 10.  They include s 170MU, the provision that CFMEU and CEPU claim to have been contravened by Curragh in this case.  Section 170NE defines the term “eligible court” in such a way as to include this Court.  Section 170NF sets out penalty provisions.  It relevantly reads:

(1)               A contravention of a penalty provision is not an offence.  However, an eligible court may make an order imposing a penalty on a person who contravenes a penalty provision.

(2)               The penalty cannot be more than $10,000 for a body corporate or $2,000 in other cases.

(3)               …

(4)               …

(5)               An application for an order under subsection (1) that relates to a contravention of section 170MU may be made by:

(a)               the employee concerned; or

(b)               an organisation of employees of which that employee is a member; or

(c)                an inspector; or

(d)               any other person prescribed by the regulations.

(6)               …

(7)               …”

Section 170NG permits an eligible court to:

“grant an injunction requiring a person not to contravene, or to cease contravening, a penalty provision.”

Section 170NH empowers eligible courts to order an employer to reinstate a person dismissed in contravention of s 170MU.

The facts

Both CFMEU and CEPU are organisations registered under the Workplace Relations Act . Curragh employs members of both unions at its mine.  Some time ago, it seems, both unions made demands on Curragh that were not satisfied and gave rise to industrial disputes.  The Commission numbered the dispute generated by CEPU’s claim as C No 00154 of 1993 and two CFMEU disputes as C No 22841 of 1995 and C No 40167 of 1997.

On 11 March 1997 the District Secretary of CFMEU gave Curragh a notice of initiation of bargaining period under s 170MI of the Act.  On the following day CEPU gave a similar notice.  It is not necessary to set out the terms of either notice.  Curragh concedes CEPU’s notice was effective to initiate a bargaining period.  Curragh disputes the efficacy of the CFMEU notice but only because it identifies the proposed nominal expiry date (a particular required by s 170MJ(e)) as “the date two (2) years from the date of the agreement’s certification”.  Curragh says it is necessary to specify a calendar date.

It seems the unions offered Curragh a draft certified agreement and negotiations ensued.  However, no agreement was reached and, on 16 April, both unions gave notices of proposed protected action.  The CFMEU notice was signed by the General President of the Union and addressed to the Chief Executive Officer of Curragh.  It read:

“You are hereby advised of the intention of members of the Construction, Forestry, Mining & Energy Union employed by Curragh Queensland Mining Ltd. at Curragh Mine to take industrial action for the purpose of supporting and advancing claims made by the Union that are the subject of the industrial dispute found in C No.22841 of 1995.

Such industrial action will take the form of overtime bans, bans on the use of contractors, work-to-rule, stop-work meetings and rolling stoppages and will commence at nightshift Sunday 20 April, 1997.”

The CEPU notice consisted of a letter from the Assistant Divisional Secretary of the union to Curragh in these terms:

“Under s 170MO of the Workplace Relations Act 1996 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) hereby gives formal notice of the intention of its members employed by Curragh Queensland Mining Limited to engage in industrial action.

The intended industrial action is for wage increases and other conditions of employment that the Union and its members seek to be included in a Certified Agreement pursuant to the provisions of Division 4 of Part VIB of the Workplace Relations Act 1996.

The industrial action will commence from 21^st April, 1997.

The nature of the intended action is the engaging in, by officers, employees and members of the CEPU, of such action as described below:

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

(ii)               bans, limitations or restrictions on the performance of work, or on acceptance of or offering for work;

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

(iv)             protests at or around the place where agreement is sought and/or other relevant places;

(v)               some combination of the above, either at the same time or at different times.”

CFMEU commenced industrial action on 20 April but the evidence does not establish its form.  On 23 April Curragh’s CEPU members staged a 24 hour strike.

On 6 May the General President of CFMEU issued a further notice to the Chief Executive Officer of Curragh.  It followed the notice of 16 April except that it referred to dispute C No.40167 of 1997 and the commencement of industrial action as being “at afternoon shift – Friday May 9, 1997”.  On 8 May the Curragh Lodge President issued a further notice addressed to Curragh’s Human Resources Advisor stating that CFMEU members employed by the company “will be commencing a two (2) week stoppage from 3pm, Friday May 9, 1997”.  He said this was to support the claims in C No.40167 of 1997.

On a date that does not appear, the CEPU President notified Curragh that the members of his union, also, would commence a two week stoppage from 3pm (the commencement of afternoon shift) on Friday, 9 May.  He said this was for the purpose of supporting the claims in matter C No.20557 of 1997.

At the commencement of afternoon shift on 9 May, the members of both unions – and, I understand, AFMEU as well – commenced a strike that lasted until 25 August.  However, neither union treated the strike as one of indefinite duration.  Both unions gave a succession of notices under 170MO that referred to a “two week stoppage” commencing at afternoon shift on a particular day.  The CFMEU notices were in identical terms and addressed by CFMEU’s General President to the Chief Executive Officer of Curragh.  I need quote only the first such notice, dated 20 May 1997:

“You are hereby advised of the intention of members of the Construction, Forestry, Mining & Energy Union employed by Curragh Queensland Mining Ltd. at Curragh Mine to take industrial action for the purpose of supporting and advancing claims made by the Union in respect of the matters annexed to the notice of initiation of bargaining period in C No.40167 of 1997 and the proposed agreement as served on the Company on May 9, 1997.

Such industrial action will take the form of a two (2) week stoppage and will commence at afternoon shift Friday May 23, 1997.”

Subsequent notices were given on 3 June, referring to industrial action to commence at afternoon shift on Friday, 6 June; 17 June referring to 20 June; 1 July referring to 4 July; 15 July referring to 18 July; 29 July referring to 1 August; and 12 August referring to 15 August.  There may have been later notices as well but there is no evidence of them.  The CEPU notices were not in identical terms.  They were given at fortnightly intervals and referred either to “industrial action for a further 2 weeks” or “a two (2) week stoppage” from 3pm on a particular Friday.  Each referred to supporting the claims made in connection with dispute C No.20557 of 1997.  Some of the notices were dated the same day as the stoppage was to commence, others earlier but never more than three days before the projected commencement date.

On 4 August 1997 the Managing Director of Curragh, Bruce Douglas Denney, wrote a letter to all employees concerning the negotiations that had ensued between the unions and the company.  He said that “despite 12 weeks strike we are no closer to resolving the fundamental issues.  All the Company is trying to do is to put in place an agreement which will both ensure long term viability of the mine and fair conditions for all employees”.  He asked the addressees to “take some time to think about where we are at on these key issues”.  Mr Denney then dealt with three matters:  salary levels, the use of contractors and demarcation.  He concluded:

“If we can finalise these key issues of $’s, contractors and demarcation then we are a long way down the road to solving the whole issue.  What we are asking is for commonsense in return for good $’s.

I need to say that we are in this for the long haul.  Life will not get back to normal for any of us until after these issues are resolved.

We will not do a deal that doesn’t fully solve Curragh’s problems.  Despite extensive negotiations the union appears not to be capable of presenting a feasible solution to solve these problems.  You do however have the solution in your own hands.  I urge you to accept our very fair enterprise agreement offer and return to work.”

The letter contained no reference to the agreements, at State or local level, which Curragh had made, over the years, with unions representing its employees and which conferred on them benefits beyond those provided by industrial awards.

Nonetheless, on 6 August, Mr Denney wrote letters to the secretaries of the local branches of both CFMEU and CEPU stating:

“You are advised that Curragh Queensland Mining Limited will withdraw from all State Level and Local Agreements, whether written or otherwise, signed or unsigned, or custom and practice, one month from the date of this letter."

On 14 August 1997 Mr Denney announced the recommencement of coal production “using all available labour”.  He said the striking employees would be offered three alternatives:  voluntary redundancy, a return to work under an Australian Workplace Agreement (“AWA”) or remaining on strike at the picket line.  On the following day, letters were sent to the striking employees offering each of them an individual contract of employment in the form of an AWA.

As a result of these (and other) events, on 18 August 1997, the General President of CFMEU notified the Commission of an industrial dispute.  At about the same time, the Commission also received a notification from the Australian Collieries’ Staff Association complaining of Curragh’s proposal that its members (who were not on strike) undertake work that normally would be performed by the striking employees.  This complaint was investigated by Commissioner Bacon.  On 19 August he issued a recommendation that Curragh use only volunteers from employees currently at work to perform the work that would normally have been undertaken by striking employees.

Commissioner Bacon conciliated the applicants’ dispute with Curragh but without success.  On 21 August he ordered the termination of the bargaining period, as from the following Monday, 25 August, and recommended a return to work on the basis of continuation of all pre-strike conditions.  On the following day, the striking employees agreed to accept the recommendation.  They returned to work on 25 August.

Thereafter, conciliation proceedings continued; the pre-strike conditions continuing to operate.  A final draft enterprise agreement was sent to Curragh on 16 September.  However, on 24 September 1997 Mr Denney advised Commissioner Bacon and the unions that the draft was not acceptable.  On the following day Curragh issued a notice to the members of all three unions that included the following announcement:

“CQML advise all unions that effective from 3.00 pm Thursday 25 September 1997 the Company intends to operate under the terms and conditions of the ‘The Coal Mining (Production & Engineering) Interim Consent Award, September 1990 (the Award).

All previous customs, practices, arrangements, understandings or agreements written and unwritten will cease to apply to the Company’s operations.

Contractors will commence to operate in areas of the mine as previously advised by the Company.”

The notice offered an interim agreement that included a production bonus calculated in accordance with a specified formula but capped at $180 per week.  That offer was rejected at a mass meeting of employees on 25 September.  However, one week later, a further meeting accepted an amended offer that removed the cap on the production bonus.

At the request of the unions, the Commission listed the matter for arbitration before a Full Bench.  On 21 October the Full Bench set a timetable for the projected hearing.  On the following day, the employees at the mine held a one-day stoppage; apparently because CFMEU members had observed staff employees carrying out work normally undertaken by them.  As a result of the stoppage, Curragh withdrew from the interim agreement and reverted to the award conditions.

On 30 October 1997 CFMEU applied for an interim award covering various matters dealt with by the State and local agreements.  On 1 December 1997 the Commission rejected this application.  The arbitration proceeded in the early months of 1998.  On 11 August 1998, shortly before the hearing of this proceeding, the Full Bench of the Commission handed down a decision in which it specified the terms of a new award.  They included a new salary and classification structure without a discrete bonus.  Because the Commission thought the financial penalty inflicted on CFMEU members by loss of the bonus in October 1997 was excessive, the Commission ordered reinstatement of the bonus from the first pay period in 1998 until the commencement of operation of the new salary and classification structure.  The Commission declined to include in the new award provisions to the effect of the other conditions of the State and local agreements.

The issues

The applicants claim Curragh breached s 170MU of the Workplace Relations Act in two respects:

(a)                the notices dated 6 August 1997 of the company’s intention to withdraw, at the expiration of one month, from State and local agreements constituted a threat to “injure an employee in his or her employment or (to) alter the position of an employee to the employee’s prejudice … wholly or partly because the employee … is engaging, or has engaged, in protected action”:  see para (b) of s 170MU(1); and

(b)               the notices of withdrawal from those agreements, dated 25 September 1997, constituted an actual injury to the employees in their employment or an alteration of their position to their prejudice, wholly or partly because they had engaged in protected action:  see para (c).

In the way in which the case developed at the hearing, four issues emerged:

(i)                  whether the notices referred to in paras (a) and (b) above, or either of them, were given wholly or partly because the employees were engaging, or had engaged, in industrial action (as the applicants claimed) or for other reasons (as Curragh contended);

(ii)                in relation to the claim of CFMEU (but not CEPU), whether the applicant’s notice was effective to initiate a bargaining period;

(iii)               in relation to the claims of both CFMEU and CEPU, whether the various notices of intended industrial action were effective to make that action “protected action” within the meaning of Division 8 of the Act;

(iv)              what orders (including orders for compensation) ought appropriately be made.

The reason for the notices

In dealing with this issue, it is necessary to consider separately the notices of 6 August 1997 and those of 25 September 1997.  The factual situation changed between those dates, not least because the employees returned to work on 25 August.  A reason that may have actuated the earlier notices may not have applied later on.

In his affidavit evidence, Mr Denney said the “letter of 6 August 1997”, I presume he meant each of the letters of that day, “was not sent because employees were engaging in strike action”.  He went on to refer to supposed difficulties in the agreements mentioned in the letters.  In oral evidence in chief, Mr Denney expanded on this evidence by saying:

“There was no relationship to past strike action.  The reason for sending the letter was that we at the end of July had completed the third round of negotiations if you like – we’d had significant negotiations.  I think both sides were of the view that we were at an impasse and my view on sending the letter was that that was a negotiating tactic in an attempt to break that impasse if you like to give us some room to move in the negotiations.”

Mr Denney said, at that time, “the unions were still on strike but I had no knowledge of any further action that they may take".

In cross examination by Mr S Crawshaw, counsel for the applicants, Mr Denney said some of the agreements were discussed in the negotiations between the parties up to the end of July 1997; the company expressed the view that some conditions of the agreements should no longer apply, the unions wished more to continue than the company wanted.  He agreed the company never indicated it would withdraw from all State level and local agreements; the only discussion related to specific conditions, and that in the context of the terms of a new certified agreement.  Mr Denney said, by 4 August 1997, the company had not lost any customers but had “clearly lost significant revenue” from the strike, which had then gone on for 13 or 14 weeks.  Notwithstanding this, he said, it was not one of his objectives to have the employees return to work; his “intent at that stage” (apparently his only intent) was to “make a stand in terms of getting a sensible enterprise agreement in place for the future of the organisation”.

Asked his reason for sending the letter of 6 August, Mr Denney replied:

“Well we’d finished the third round of negotiations and I think both sides seemed to be of the view that [they] were at [an] impasse in terms of getting an enterprise agreement that achieved the business objectives of the company.  My view was that in sending out that letter it would give us some room to move, the unions – and from that point of view was a sort of negotiating tactic.  The unions were claiming a significant number of the unregistered agreements and that was their starting point in life.  We were unhappy in that because we didn’t think it could achieve our business objectives.  So by opting out of all agreements it gave us much more room to move if you like, the unions first – had to agree for reinstatement of any of those agreements as far as where they were at, they were assuming that they were all still alive.”

He said the letter was no more than a negotiating tactic.  Mr Denney agreed that when the letter was sent, no further negotiations were scheduled but he said he was then aware that Mr Maitland had contacted Bill Wagner, the President of Arco Coal (Curragh’s parent company) for a high level meeting on 12 August.  Mr Denney said he attended that meeting.  His evidence proceeded:

“And was there any discussion of this withdrawal from all State level and local agreements?---It was mentioned once in passing I think, but it was not a major topic, that’s for sure.

Even though it was a negotiating tactic that you dreamt up?---Well the attempt was to get the whole range of issues back into play.  For example when bonus manning issues, demarcation issues, all of them had some play back in unregistered agreements.

But you see nowhere did you say to anyone in writing or orally, look the future negotiations are going to proceed from the basis that all bets are off in relation to State level or local agreements?---That’s correct.”

On the following hearing day, Mr Crawshaw referred Mr Denney to evidence he had given to the Commission.  It was there put to him that the letter was “a tactic used in negotiations” but Mr Denney had responded:  “No, I think it was more than a tactic in this case”.  Asked to explain, he had said:

“I believe that’s the way we wanted to be able to run things in the future.  We had to break the linkage back to custom and practice.”

In later evidence before me, Mr Denney said:

“The situation was that we believed some of the agreements were fine, other of the agreements we couldn’t live with in terms of achieving our business outcomes.”

I cannot accept Mr Denney’s claim that there was no relationship between the industrial action and the letter of 6 August 1997.  The letter was sent in the thirteenth week of a strike that had cost the company significant revenue.  It was sent two days after the dispatch of letters to each individual employee urging a return to work.  I do not doubt the company was keen to rid itself of those conditions in State and local level agreements that it regarded as obsolete or unduly onerous, but not all the conditions were in this category; Mr Denney conceded “some of the agreements were fine”.  If Mr Denney’s purpose had been merely to clear out the unacceptable conditions, it would have been logical for him to confine his withdrawal to those conditions.  It is difficult to see the letter as a mere negotiating tactic, not only because Mr Denney swore the opposite of this in evidence before the Commission but also because the continuation of the agreements was not a major issue in the negotiations that had occurred.  Mr Denney conceded that, prior to 6 August, there had not been any talk about the agreements no longer applying, and he was not opposed to all of them.  And they had not been mentioned in his letter to the employees of 4 August.  When Mr Warner met Mr Maitland on 12 August, only passing reference was made to them.

I do not doubt that, on 6 August, Mr Denney was aware of the projected meeting of 12 August between Mr Warner and Mr Maitland.  But I think he was also extremely anxious to bring to an end the long-running strike that had proved so expensive to Curragh; and his letter of 6 August was designed to put additional pressure on the strikers to return to work.

Section 170MU(1)(b) is not limited to a situation where a threatened injury or alteration was wholly occasioned by the employee’s participation, or proposed participation, in protected action.   It is enough that the threatened injury or alteration was partly for this reason.  That is this case.  If the strike amounted to “protected action” within the meaning of Division 8 of Part VIB of the Act, the letters of 6 August constituted a contravention of s 170MU(1)(b).

In relation to the notices of 25 September 1997, I take a different view.  By that time, the employees were back at work; the notices could not have been designed to end the strike.  And I do not see any reason to attribute a vindictive motive to Mr Denney.  I think he gave the notices for two reasons.  First,  he had threatened to do so and was keen to demonstrate his toughness and authority – in large measure the industrial dispute was a contest about authority.  Second, Mr Denney did wish to get rid of some of the conditions of the agreements.  By 25 September negotiations had failed, apparently irretrievably, and the parties were facing arbitration by the Commission.  It would have been logical for Mr Denney to see advantage in starting the arbitration proceedings on the basis there were no existing State and local level agreements.  I hold the notices of 25 September 1997 did not infringe s 170MU(1)(a) of the Act.

Initiation of the bargaining period

I have already set out the relevant parts of s 170MI of the Act, dealing with the initiation of a bargaining period, and s 170MJ which specifies the required particulars.  It will be recalled the particulars required by para (e) of that section include “the proposed nominal expiry date of the agreement”.  It will also be recalled the CFMEU notice dated 11 March 1997 stated “the proposed nominal expiry date of the agreement is the date two (2) years from the date of the agreement’s certification”.  Mr F Parry, counsel for Curragh, argues such a statement fails to comply with para (e); this can be done only by specifying a calendar date.  He concedes it will normally be impossible for a party giving a notice under s 170MI to know how long it will be before the desired agreement comes into force (if ever); so specification of any particular date is likely to be a token exercise.  But Mr Parry says this is what the paragraph requires.

I do not agree.  The purpose of s 170MJ is to ensure recipients of s 170MI notices are given basic information about the agreement proposed by the giver of the notice.  Duration is obviously an important matter, but I do not see why duration cannot be specified by reference to the date of the agreement’s commencement.  This will usually be a more useful indication of duration than specification of a calendar date, in circumstances where the parties have no idea how long that will be after the agreement’s commencement.

If I had come to the opposite conclusion about that matter, I would still not have held the defect in the particulars vitiated the s 170MI notice.  Shortly after the hearing of this case, the solicitors for the applicants drew my attention to a recent decision of a Full Bench of the Commission (Justice Giudice, Vice President McIntyre and Commissioner Holmes) in Community and Public Sector Union v State of Victoria (16 June 1998, not yet reported).  This decision concerned initiation of a bargaining period.  One matter argued by the respondent employer was that the s 170MI notice given to it was ineffective because the union failed to provide the particulars specified in s 170MJ(d) and (e) of the Act.  It seems no attempt was made to provide those particulars; nonetheless, the Full Bench held the notice valid.  The Full Bench said:

“It was argued that if the particulars required by s.170MJ are not provided the s.170MI notice is invalid.  We are not persuaded that MacBean’s SDP’s conclusion on this question was wrong.  We think the approach to be adopted in construing s.170MJ involves a determination of whether the legislature intended that a failure to comply with the requirements would invalidate the notice.  The intention is to be ascertained from the language of the relevant provisions, the objects of the Part and the objects of the Act.  The nature and extent of a failure to comply with s.170MJ is also relevant.  Support for these propositions can be found in Hatton v Beaumont & Ors [1977] 2 NSWLR 211, Tasker & Ors v Fullwood & Ors [1978] 1 NSWLR 20 and Victoria v Commonwealth (1975) 134 CLR 81 at 179-180.  We would add two things to what his Honour said.  Firstly, s.170MJ is designed to facilitate the bargaining process rather than to ensure the validity of the initiation of the bargaining period.  We agree with Mr Kenzie’s submission that s.170MI(2) makes it clear that it is the giving of the written notice which initiates the bargaining period.  Nevertheless s.170MJ should be complied with.  A party which fails to provide particulars is at risk if the Commission is required to exercise its discretion at a later point in the process e.g. under s.170MW(2)(a) or s.170MX(5)(e).  Secondly, it appears that the failure to provide the particulars had no material effect on the negotiations in this case.  Victoria did not draw attention to the omission until the CPSU asked the Commission to terminate the bargaining period, at which point any lack of particulars was of less relevance than it might earlier have been.

In our view, the CPSU’s failure to provide the particulars required by s.170MJ(d) and (e) did not invalidate the s.170MI notice.”

Senior Deputy President MacBean had drawn attention to the fact that s 170MJ states “the notice ‘is’ to be accompanied, rather than ‘must’”.  He thought this implied the section is directory rather than mandatory and went on:

“The purpose of s.170MJ is to provide the recipient of the written notice filed under s.170MI with certain information relating to the intentions of the initiating party in respect of the proposed agreement.  However, s.170MJ does not require the initiating party to state the actual terms of the claims sought by it only that the matters be identified.

The initiation of the bargaining period is triggered by the notice being served under s.170MI.  The particulars under s.170MJ do not constitute part of the notice but are to accompany the notice.”

I doubt that the mandatory/directory dichotomy is now appropriate:  see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490 at 516.  But otherwise I agree with the approach taken both by Senior Deputy President MacBean and the Full Bench of the Commission.  It seems to me evident Parliament did not intend a failure to comply with the requirements of s 170MJ to vitiate a notice.  Section 170MI(2) says the bargaining period “is initiated” by the giving of a notice stating the initiating party intends to try to make an agreement under Division 2 or 3 and have that agreement certified under Division 4.  These are the essentials of a valid notice.  Although the command of s 170MJ is important, and non-compliance may have the consequences mentioned by the Full Bench in the Victorian case, the section imposes a subsidiary obligation that does not affect the validity of the notice.

I reject Mr Parry’s submission that the CFMEU notice was ineffective to initiate a bargaining period.  As I have indicated, there is no dispute about the effectiveness of the CEPU’s notice.

The notices of industrial action

Having regard to my finding in respect of the first issue, 6 August 1997 is the critical date for consideration of the question whether the industrial action in which the employees were engaged was “protected action”.  It will be recalled s 170ML(2) of the Act makes certain action of employees “protected action” for the purposes of Division 8 of Part VIB of the Act but s 170MO(1) says any such action “is not protected action” unless the requirements of 170MO(2)  are met.  The requirement of that subsection, in respect of action by employees, is that “the organisation, or the employee who is a negotiating party, has given the employer at least 3 working days written notice of the intention to take the action”; that is, the particular action that is claimed to be protected action.  It will also be recalled that s 170LF defines the term “working day” to refer to a day on which “employees normally perform work” in the relevant business or part of a business; if the business does not usually operate at weekends, for example, weekend days must be disregarded.

The notices that were in operation on 6 August were those given on 29 July.  The CFMEU notice of that day referred to industrial action in the form of a two week stoppage that would commence at afternoon shift on Friday, 1 August.  The evidence does not reveal when this notice was received by Curragh.  However, even assuming it was received on 29 July, it is obvious CFMEU did not give Curragh three working days' written notice of the intended action.  Where a statute requires “at least” a certain number of days’ notice to be given before an event occurs, this means clear (full) days:  see Ayres v Chacos (1972) 19 FLR 468 at 469-471 and the authorities there cited.  The computation of days must exclude both the day upon which the notice is given and the day when the event is to occur.  Applying that rule to the present case, it is necessary to exclude from the computation both 29 July (when the notice was given) and 1 August (when the stoppage was intended to commence).  These leaves only two days, 30 and 31 July.

Mr Crawshaw argued the line of authority applied in Ayres v Chacos was inapplicable to this case because s 170MO(2) refers to “at least 3 working days’ notice”.  The argument is that, by adopting the special term “working days”, rather than the general term “days”, Parliament intended to displace the general rule.  I cannot agree.  I think Parliament intended the word “days” to have its ordinary meaning, but also intended to exclude days not ordinarily worked in the particular business or part of a business.  It is not appropriate to read “3 working days” as being the equivalent of 72 hours.  This was the requirement under the pre-1996 legislation:  see s 170PH of the Industrial Relations Act 1988.  It seems a deliberate decision was made to abandon that requirement in favour of three working days and this was because of a desire to ensure three clear days’ notice of the intended industrial action.

The relevant CEPU notice was dated 31 July.  It gave notice of a two week stoppage commencing at 3pm on the following day, 1 August.  Even assuming Curragh received the notice on 31 July, it is apparent not even one clear days’ notice was given.

Mr Crawshaw argued the requirement of s170MO(2) was not mandatory.  Because of its association with the now discarded mandatory/directory dichotomy, I prefer not to use the word “mandatory”; but the statute clearly indicates that, unless the required notice is given, particular industrial action is not “protected action” within the meaning of Division 8 of Part VIB of the Act.  Section 170MO(1) says that action taken by an organisation of employees, or a member, officer or employee of such an organisation “is not protected action unless the requirements set out in subsection (2) are met”.  Compliance with those requirements is an essential ingredient in the concept of protected action.  As the requirements of s 170MO(2) were not met in this case, either by CFMEU or CEPU, the industrial action taken by those of their members who were employed by Curragh was not protected action within the meaning of Division 8 of Part VIB of the Act.

In an endeavour to avoid the difficulties to his clients stemming from the inadequate time allowed in their notices of 29 July, Mr Crawshaw placed reliance on their earlier notices of action.  The first CFMEU notice was dated 16 April and took effect at nightshift on Sunday, 20 April 1997.  The position is not clear but it is possible this notice gave three clear days’ notice of proposed industrial action.  However, it identified the proposed industrial action as “overtime bans, bans on the use of contractors, work-to-rule, stop-work meetings and rolling stoppages”.  That type of industrial action is different in kind from a complete cessation of work, which was the form of industrial action in place on 6 August 1997.  Section 170ML(2)(b) of the Act requires “at least 3 working days’ written notice of the intention to take the action”.  No doubt some latitude is permissible, having regard to the dynamics of industrial conflict, but I think the Act should be construed as protecting only industrial action of the same kind as that described in the notice. 

CFMEU’s later notices all spoke of a “two (2) week stoppage”; thereby impliedly excluding a stoppage effective after the expiration of the two weeks.  In any event, it seems these notices all shared the vice of failing to give three clear days’ notice of the commencement of the two week stoppage.

The initial CEPU notice of 16 August 1997 may also have satisfied the requirement of three clear days’ warning of industrial action.  But it described the proposed action, in some detail, in terms that assumed a general continuance of operations.  Once again, this is action different in kind from a total cessation of work.  None of the later CEPU notices gave three clear days’ notice of the commencement of the relevant two weeks’ stoppage.

Neither applicant is able to use an earlier notice to overcome the problem sustained by the inadequate notice given of the two week stoppage commencing on 1 August.  The stoppage that was in effect on 6 August was not “protected action” within the meaning of Division 8 of Part VIB of the Act.

Orders

If the industrial action being undertaken at 6 August was not “protected action”, it was not a contravention of s 170MU(1)(b) for Curragh to threaten to injure its employees in their employment, or alter their position to their prejudice, partly because they were engaged in that action.  Section 170MU has no application to the case.  As this section is the foundation of all the applicants’ claims to relief, the claims must fail.  There is no advantage in my considering the form of relief that would have been appropriate had the claims been well-founded.  The appropriate order is that the Application be dismissed.

Associate:                                                        

Dated:              30 September 1998