FEDERAL COURT OF AUSTRALIA

Australasian Meat Industry Employees’ Union v O’Connor [1999] FCA 617

INDUSTRIAL LAW –lockout of employees – determination of separate question – whether personal service of lockout notices required – whether contrary intention evinced by the Workplace Relations Act 1996 (Cth) – whether reasonable steps taken by the respondent to notify certain employees of the lockout – meaning of “other reasonable steps” in s170MO of the Act

WORDS & PHRASES – “other reasonable steps”

Workplace Relations Act 1996 (Cth) s170MO

Workplace Relations and Other Legislation Amendment Bill 1996 (Cth)

Acts Interpretation Act 1901 (Cth) s28A

Australasian Meat Industry Employees Union and Anor v G & K O’Connor Pty Ltd [1999] FCA 310, referred to.

AUSTRALASIAN MEAT INDUSTRY EMPLOYEES’ UNION and BARRY DONALD DAVIDSON v G & K O’CONNOR PTY LTD

V 102 OF 1999

MARSHALL J

13 MAY 1999

MELBOURNE

THE COURT ORDERS THAT:

1.                  Action taken by the respondent to lock out from their employment the persons whose names are set out below, in reliance upon a notification dated 15 March 1999 of a lockout intended to commence on 19 March 1999, was not protected action within the meaning of Division 8 of Part VIB of the Workplace Relations Act 1996 (Cth).

Brett Arter

Stan Blackwood

John Corbett

Barry Davidson

Oliver Drish

Peter Dyall

Kaye Garvey

Luke Grogan

Max Ingram

Nathan Knight

Stephen Martin

Tom McMaster

Kevin Milnes

Leigh Milner

Jeanette Mitchell

Ahmed Musse

Andrew Myers

John Patterson

Graeme John Pendergast

Paul Renahan

Anthony Reynolds

Dean Rodda

Andrew Taylor

Nigel Townley

Justin Van Schouten

Nathan Vigenser

Peter Voss

Lawrence Walsh

Louise Wealands

Mark Wealands

Christopher Whitfield

Collin Ross

2.                  At least 3 working days before 19 March 1999, the respondent gave the persons whose names are set out below written notice of the lockout which was intended to commence, and which did commence, on that day.

Neville Barnes

Peter Cornell

James Esson

James Gaunt

Troy Hade

Peter Larrieu

Bradley Laurie

Jeffrey McCraw

Daryl Milkins

Michael Kellett

3.                  At least 3 working days before 19 March 1999, the respondent took reasonable steps to notify the persons whose names are set out below of the lockout which was intended to commence, and which did commence, on that day.

Trevor Hodge

Joe Huni

Craig Mallowes

Andrew Ould

Damien Shanahan

James Taube

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

REASONS FOR JUDGMENT

1                     On 10 March the applicants filed an application with the Court in which they sought orders challenging the right of the respondent, G & K O’Connor Pty Ltd (“O’Connor”), to lock out 220 of its employees who were engaged to perform work at O’Connor’s abattoir at Pakenham in Victoria.

2                     On 22 March 1999 the Court rejected the applicants’ claim for interlocutory relief. See Australasian Meat Industry Employees’ Union and Anor v G & K O’Connor Pty Ltd [1999] FCA 310. The order numbered 2 of the orders made on 22 March 1999 was in the following form:

“2.       The notice of motion of the applicants of 18 March 1999 otherwise be dismissed, save as it relates to employees of the respondent who were not served with lockout notices 3 days before 19 March 1999.”

3                     On 1 April 1999 the Court made a consent order which included the following order:

“1.       That pursuant to Order 29 of the Rules of the Court the Court determine a separate question arising in the proceeding i.e. on the assumption that the Respondent validly locked out other of its employees on 19 March 1999 (which assumption is contested in the substantive proceeding), whether the lock out of the 48 persons whose names appear on the schedule is protected action in respect of those persons.”

4                     The schedule to that order contained 48 names commencing with Brett Arter and concluding with Chris Whitfield.

5                     The trial of the separate question was conducted on 3 and 5 May 1999. Dr C N Jessup QC with Mr F Parry of counsel, appeared for O’Connor and Mr E White of counsel appeared for the applicants. During final submissions counsel agreed that rather than make an order answering the separate question it would be more helpful to the parties for the Court to make declarations giving effect to its reasons for judgment and the partial agreement of the parties concerning O’Connor’s failure to give proper notice of the lockout to certain employees. The Court is content to adopt that course.

Factual Background

6                     These reasons for judgment should be read together with the reasons for judgment delivered on 22 March 1999 in the proceedings. In those reasons for judgment it was stated that “some 300” of O’Connor’s employees at Pakenham are processing employees. The actual figure at the material time was 220.

7                     At paragraphs 29 and 30 of those reasons the following is stated:

“29.     On 15 March 1999 Mr Kevin O’Connor wrote to each processing employee advising of a lockout to commence on 19 March 1999, being protected action under s170MO of the Act.

30.              Notices were served on all, except approximately 25, of the processing employees, by courier, within the 3 day time limit prescribed by the Act.”

8                     As is apparent from the list of names on the schedule to the order of 1 April 1999, the applicants contended in effect on that day that the reference to 25 employees in the reasons delivered on 22 March 1999 should have been a reference to 48 employees.

9                     On 5 May 1999 the parties handed to the Court a document headed Agreed Statement of Facts. In paragraph 2 of that document O’Connor accepted that 31 of its employees were not given written notice of the intended lockout on 15 March 1999 and that it had not taken other reasonable steps by 15 March 1999 to notify those 31 employees of the intended lockout. Those 31 employees are identified in the first of the declarations made by the Court today, commencing with Mr Arter and concluding with Mr Whitfield.

10                  There remained in dispute the issue as to whether 17 other employees of O’Connor were given notice of the 19 March 1999 lockout in accordance with s170MO(3) of the Workplace Relations Act 1996 (Cth) (“the WR Act”).

11                  The relevant facts concerning those 17 employees are as follows:

·        Neville Barnes found a notice from O’Connor advising him of the 19 March 1999 lockout in his letter box at 4.00 pm on 16 March 1999. A courier engaged by O’Connor left the notice in the letter box at about 10.19 pm on 15 March 1999.

·        Peter Cornell found his lockout notice in his front door on the morning of 16 March 1999. The notice was left there by a courier at some time before 10.35 pm on 15 March 1999.

·        James Esson found his lockout notice in his letter box on the afternoon of 16 March 1999. A courier had left it there on 15 March 1999.

·        James Gaunt was handed his lockout notice by his father on 16 March 1999. A courier had left the notice in the back door of Mr Gaunt’s residence on 15 March 1999.

·        Troy Hade did not find his lockout notice. However a courier had left it in the letter box at Mr Hade’s residence on 15 March 1999.

·        Peter Larrieu found his lockout notice in his letter box at 11.00 am on 16 March 1999. It had been left there by a courier at 7.14 pm on 15 March 1999.

·        Bradley Laurie did not find his lockout notice. A courier had left it behind the flywire screen at the entrance door to Mr Laurie’s residence.

·        Jeffrey McCraw found his lockout notice on 19 March 1999. It had been left in the back door of his residence by a courier on 15 March 1999.

·        Daryl Milkins did not find his lockout notice. A courier had left it at Mr Milkins’ residence on 15 March 1999.

·        A courier attempted to serve a lockout notice on Michael Kellett on 15 March 1999. The courier left the notice in a letter box at an address in Bayswater, which was Mr Kellett’s last known address. Prior to 15 March 1999, Mr Kellett had not advised O’Connor that he no longer lived at that address.

·        Trevor Hodge did not receive any notice from O’Connor on 15 March 1999. A courier attempted to deliver a notice to Mr Hodge on that day but did not have the correct address for him. It was the last known address for Mr Hodge, according to O’Connor’s records.

·        Joe Huni did not receive any notice from O’Connor on 15 March 1999. A courier attempted to deliver a notice to Mr Huni but was told by someone at the address O’Connor had for him that Mr Huni no longer resided there.

·        Craig Mallowes did not receive any notice from O’Connor on 15 March 1999. A courier attempted to deliver a notice to Mr Mallowes but the courier could not find the relevant address. In any event Mr Mallowes no longer lives at that address and did not notify O’Connor of his change of address.

·        Andrew Ould did not receive any notice from O’Connor on 15 March 1999. A courier attempted to deliver a notice to Mr Ould but the occupant at the address attended by the courier advised the courier that Mr Ould had moved and that he did not know his new address.

·        A courier attempted to serve a lockout notice on Collin Ross at an address in Cranbourne at about 6.21 pm on 15 March 1999. The courier was informed by the occupants of the relevant premises that Mr Ross had not resided there for a year. The occupants advised that they did not know where Mr Ross resided. Mr Ross gave evidence that he moved to an address in Pakenham in January 1998. He also gave evidence that O’Connor knew his current address because in December 1998 he completed a form relating to a Workcover claim. His current address details were set out in that form. O’Connor retained a copy of the form as did Mr Ross.

·        Damien Shanahan did not receive any notice from O’Connor on 15 March 1999. A courier attended at an address which was the last known address of Mr Shanahan to O’Connor. An occupant of the premises at that address advised the courier that Mr Shanahan no longer lived there. Mr Shanahan did not advise O’Connor of his change of address.

·        James Taube did not receive any notice from O’Connor on 15 March 1999. His relevant circumstances are materially indistinguishable from those pertaining to Mr Shanahan.

The Legislative Context

12                  Section 170MO(3)(b)(ii) of the WR Act provides that:

“If one or more of the negotiating parties is an organisation of employees, any action taken as mentioned in subsection 170ML(3) by the employer to lock out employees from their employment:

…

(b)               is not protected action in so far as it relates to a particular employee…

(ii)               in any other case – at least 3 working days before the lockout begins;

the employer has given written notice to the particular employee, or has taken other reasonable steps to notify the particular employee, of the intended lockout.”

13                  Section 28A(1)(a) of the Acts Interpretation Act 1901 (Cth) (“the Interpretation Act”) provides that:

“(1)     For the purposes of any Act that requires or permits a document to be served on a person, whether the expression “serve”, “give” or “send” or any other expression is used, then, unless the contrary intention appears, the document may be served:

(a)     on a natural person:

(i)            by delivering it to the person personally; or

(ii)          by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document;”

Was Personal Service of the Lockout Notices Required?

14                  Mr White acknowledged that the effect of s28A(1)(a) of the Interpretation Act was that personal service of the notice was not required unless the WR Act evinced a contrary intention. Mr White submitted that the WR Act did evince such a contrary intention. He relied upon the importance in the scheme provided by Part VIB of the WR Act for individual employees to be able to fully participate in the process which included steps leading to the making of certified agreements. Mr White also relied upon the seriousness of the consequences of a lockout for the individuals concerned.

15                  Dr Jessup submitted that there was nothing about the steps under the WR Act leading to a lockout which suggested that s28A(1)(a) of the Interpretation Act would not apply. He further submitted that there was nothing in the language provided by the WR Act to indicate that a relevant contrary intention appeared. The Court agrees with that submission. Notwithstanding the importance of individual employees being able to fully participate in the scheme provided by the WR Act for the making of certified agreements the Court does not discern from the text of that legislation any clear indication that the provisions of s28A(1)(a) of the Interpretation Act have been ousted.

16                  Mr White accepted that a consequence of the Court’s rejection of his submission that personal service of the notices was required would be that the following employees had received notice of the lockout in accordance with s170MO(3)(b)(ii) of the WR Act:

·        Neville Barnes

·        Peter Cornell

·        James Esson

·        James Gaunt

·        Troy Hade

·        Peter Larrieu

·        Bradley Laurie

·        Jeffrey McCraw

·        Daryl Milkins

·        Michael Kellett

Were Reasonable Steps Taken by O’Connor to Notify Messrs Hodge, Huni, Mallowes, Ould, Ross, Shanahan and Taube of the Lockout?

17                  In referring to “other reasonable steps to notify the particular employee” as an alternative to the giving of written notice to that employee, Mr White contended that s170MO(3)(b)(ii) of the Act required the taking of reasonable steps apart from the giving of written notice to an employee.

18                  Dr Jessup submitted that “other reasonable steps” contemplates, inter alia, reasonable steps to follow the primary procedure provided in the WR Act, that is, reasonable steps to give written notice.

19                  Mr White referred the Court to the Explanatory Memorandum which accompanied the Workplace Relations and Other Legislation Amendment Bill 1996 (Cth). The relevant part of the Explanatory Memorandum provided as follows with reference to proposed s170MO:

“9.176.   Under this section, at least 3 working days’ notice must be given of proposed protected action, unless the action (i.e., industrial action or a lockout) is taken in response to action by the other negotiating party. The notice must normally be in writing and given to the person concerned, but in the case of a lockout, other reasonable steps may suffice (eg, where all of the employees in a business are to be locked out, notices in newspapers or announcements on the radio or bulletins on noticeboards in the business may be appropriate steps).”

20                  It is pertinent to note that the “other reasonable steps” identified in the Explanatory Memorandum are given by way of example only. It does not purport to be an exhaustive list.

21                  The requirements of s28A(1)(a) of the Interpretation Act will have been met in the following situation:

·        A courier attends at the last known address of an employee who is the subject of a lockout notice.

·        That employee has, in fact, changed address.

·        Despite the employee no longer residing at that address the courier leaves the notice with current occupants.

22                  If the courier had decided there was no point in leaving the notice in such circumstances how can it be sensibly said that the courier did not take a reasonable step to notify the employee of the intended lockout? The acts of the courier in this context are, by way of agency, the acts of the employer.

23                  Consequently the Court does not view as preferable the construction of s170MO(3)(b)(ii) of the Act which does not contemplate a failed reasonable attempt to notify an employee of an intended lockout. “Other reasonable steps” to notify should not be construed as reasonable steps to notify other than by written notice but as reasonable steps other than by written notice, including reasonable attempts to give written notice. Therefore the Court accepts the submissions of Dr Jessup on this issue and rejects those of Mr White. The effect of that conclusion is that the following employees are persons in respect of whom O’Connor took reasonable steps to give notice of the intended lockout by seeking to deliver the notice to the address last known for them by O’Connor:

·        Trevor Hodge

·        Joe Huni

·        Craig Mallowes

·        Andrew Ould

·        Damien Shanahan

·        James Taube

24                  The position of Collin Ross is unique in this context. It is the Court’s view that O’Connor had been provided with his correct address albeit by reference to it by Mr Ross in his Workcover claim form. O’Connor should have adjusted its records by reference to that form. It has staff who are employed to perform the company’s administrative functions. There is no evidence of any obligation on employees pursuant to their employment contracts to notify O’Connor of each change of address by separate correspondence dedicated to that issue. Although O’Connor did ask its employees in October 1998 to up-date their addresses for administrative purposes it is conceivable that some employees, such as Mr Ross, may have forgotten to do so.

25                  In any event it is plain that in December 1998 Mr Ross, albeit not in a context specifically directed to that issue, informed O’Connor of his new address. It follows that O’Connor, by not attempting to serve Mr Ross at his Pakenham residence, did not take any reasonable step to notify Mr Ross of the intended lockout.

Order

The Court makes the following declarations:

1.      Action taken by the respondent to lock out from their employment the persons whose names are set out below in reliance upon a notification dated 15 March 1999 of a lockout intended to commence on 19 March 1999 was not protected action within the meaning of Division 8 of Part VIB of the Workplace Relations Act 1996 (Cth).

Brett Arter

Stan Blackwood

John Corbett

Barry Davidson

Oliver Drish

Peter Dyall

Kaye Garvey

Luke Grogan

Max Ingram

Nathan Knight

Stephen Martin

Tom McMaster

Kevin Milnes

Leigh Milner

Jeanette Mitchell

Ahmed Musse

Andrew Myers

John Patterson

Graeme John Pendergast

Paul Renahan

Anthony Reynolds

Dean Rodda

Andrew Taylor

Nigel Townley

Justin Van Schouten

Nathan Vigenser

Peter Voss

Lawrence Walsh

Louise Wealands

Mark Wealands

Christopher Whitfield

Collin Ross

2.      At least 3 working days before 19 March 1999, the respondent gave the persons whose names are set out below written notice of the lockout which was intended to commence, and which did commence, on that day.

Neville Barnes

Peter Cornell

James Esson

James Gaunt

Troy Hade

Peter Larrieu

Bradley Laurie

Jeffrey McCraw

Daryl Milkins

Michael Kellett

3.      At least 3 working days before 19 March 1999, the respondent took reasonable steps to notify the persons whose names are set out below of the lockout which was intended to commence, and which did commence, on that day.

Trevor Hodge

Joe Huni

Craig Mallowes

Andrew Ould

Damien Shanahan

James Taube

Future Conduct of the Proceeding

26                  The Court understands that the parties are agreed that any consequential monetary payments owing to the persons named in the first declaratory order will be determined consensually with reference to the Court if necessary pursuant to liberty to apply.

27                  The directions hearing in the substantive proceeding will be heard at 10.15 am tomorrow. If the Court is under a misapprehension regarding the issue of monetary payments it should be so advised at the directions hearing. It is also expected at the directions hearing that a process for the filing and service of additional affidavits and contentions of fact and law will be agreed and/or determined by the Court. The parties should also give consideration to the prospect of remaining issues being the subject of mediation.

Associate:

Dated:              13 May 1999