Australian Municipal Administrative, Clerical & Services Union v TAB Limited [2001] FCA 626

FEDERAL COURT OF AUSTRALIA

Australian Municipal Administrative, Clerical & Services Union v TAB Limited [2001] FCA 626

industrial LAW – application for interlocutory relief – threat of lockout – requirement to genuinely try to reach an agreement – discretionary factors going to award of interlocutory relief. Workplace Relations Act 1996 (Cth), ss 170MU, 170NC, 10ML, 170MP(3), 170MT(2), 298K(1), 298L(1). Automotive Food Metals Engineering Printing & Kindred Industries Union v ACI Mould Manufacturing [1999] FCA 1859, cited Australasian Meat Industry Employees Union v G & K O'Connor Pty Ltd [1999] FCA 310, applied AUSTRALIAN MUNICIPAL ADMINISTRATIVE, CLERICAL & SERVICES UNION v TAB LIMITED N325 of 2001

MADGWICK J 4 APRIL 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N325 of 2001

BETWEEN: AUSTRALIAN MUNICIPAL ADMINISTRATIVE, CLERICAL & SERVICES UNION

APPLICANT

AND: TAB LIMITED

RESPONDENT

JUDGE: MADGWICK J

DATE OF ORDER: 4 APRIL 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application for interlocutory relief is dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N325 of 2001

BETWEEN: AUSTRALIAN MUNICIPAL ADMINISTRATIVE, CLERICAL & SERVICES UNION

APPLICANT

AND: TAB LIMITED

RESPONDENT

JUDGE: MADGWICK J

DATE: 4 APRIL 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: 1 This is an application for interlocutory relief principally relying on ss 170MU, 170NC, 298K and 298L(l) of the Workplace Relations Act 1996 (Cth) ("the Act"). The applicant is a federally registered industrial organisation of employees and I will refer to it as the ASU. It has a number of members employed by TAB Limited ("TAB"), the well known betting establishment, at premises at Ultimo, a Sydney suburb. 2 Mr Foley is the Secretary of the ASU's New South Wales and Australian Capital Territory (Services) Branch to which I will refer as the Services Branch. Mr Foley purported, on behalf of the ASU, to initiate a bargaining period for the purposes of Division 8 of Part VIB of the Act. He gave notice that the ASU rather than the Services Branch intended to try to make an agreement falling within s 170MI of the Act. He signed a notice, directed to the TAB, describing himself as the secretary of the Services Branch. It was attacked by the TAB on the basis that s 170MI implicitly requires that the person acting on behalf of an organisation of employees, in giving such a notice, be clearly authorised by or under the rules of the union to do so. It is enough if I say that, in my opinion, there is at least a very arguable case to the contrary. 3 The notice of initiation of the bargaining period was followed by a letter from Mr Foley to the human resources manager of the TAB in which he asked for an appointment, obviously to discuss what was said to be the union's wish to negotiate an enterprise agreement. The TAB replied that it was currently considering its position and would shortly contact the ASU. 4 On 20 March 2001, there was served on the TAB a notice of the giving of authorisation to engage in industrial action. In it Mr Paul Slape, the national secretary of the ASU said: "Under section 170MR, of the Act, notice is hereby given to the Registrar that the members of the ASU have been authorised to engage in Industrial action, within the bargaining period, against TAB Limited." On the same day, Mr Slape by letter, gave notice, albeit on Services Branch letterhead: "…that all members of the ASU employed by TAB Limited will take industrial action in the form of a stop work meeting or stop work meetings between 1pm and 8pm on Saturday the 24th of March 2001. The industrial action is in support of the notice contained in Annexure A [which set out subject matters for discussion] of the Notification of Bargaining Period" 5 On 21 March 2001, the TAB replied so far as is material: "After careful consideration, TAB limited does not wish to negotiate an enterprise agreement with your Union. TAB already has a comprehensive state award with the Federated Clerks Union of Australia, NSW Branch ("FCU") which prescribes the terms and conditions of our PhoneTAB operators' employment until 1 July 2002. Such comprehensive award was only made by the Industrial Relations Commission of NSW on 8 February 2001. TAB is bound by that award to make no further claims for alterations in conditions until 1 July 2002. TAB intends on honouring that obligation. TAB only recognises the FCU as having been accorded rights under the relevant industrial instrument on behalf of its PhoneTAB operators. You should note that this remains TAB's position until a Court of competent jurisdiction orders it to do otherwise. In the meantime, we note that your Union is proposing to organise industrial action. In order that we can properly consider our position in relation to that industrial action, could you please provide us with a list of PhoneTAB Operators you say are members of your Union and a copy of the resolution of the National Executive of the ASU authorising the Initiating of Bargaining Period and the said industrial action. In the absence of this material we will be forced to assume that the industrial action is unprotected." 6 Stop work meetings then occurred at 2.30 pm and at 7pm and a good many employees attended, though a good many did not. On 28 March, the solicitors for the TAB forwarded a letter to Mr Foley which said: "In the event that your contention, that the activities engaged in by our PhoneTAB employees…[were] protected action within the meaning of the Workplace Relations Act 1996 (Cth) ("the Act"), please find enclosed by way of service on your Union a Notice to Lock Out Employees pursuant to Section 170MO of the Act." A notice indicating an intention to lock out all ASU members employed by the TAB at Ultimo from 8.30 am Saturday 31 March until 9.00 am Monday 30 April 2001 was enclosed. However, in deference to the proceedings in this Court, by agreement, the TAB did not proceed with a lock out pending the hearing of these interlocutory proceedings. 7 On 28 March, a letter was given to all TAB employees thought by the TAB management to have been likely to have attended the stop work meetings. That letter was in the following terms: "RE: YOUR UNAUTHORISED ABSENCE FROM WORK ON SATURDAY 24 MARCH 2001 We refer to our earlier letter to all PhoneTAB Operators of 21 March 2001. As you would be no doubt aware, the Autumn Carnival racing calendar is the Company's second busiest trading period of the year. It is paramount that the Company is able to service all its PhoneTAB customers during this period. We confirm that our records show that you attended a stop work meeting on Saturday 24 March 2001. As your actions indicate that you are unable to give the Company your commitment to work, and to remain at work, during this busy trading period, the Company does not require your services until you give us your commitment that you will work and continue to work in accordance with your contract of employment and the reasonable lawful directions of the Company, or until Monday 30 April 2001, whichever comes first. We note that the Australian Services Union asserts that your conduct is "protected action" for the purposes of the Workplace Relations Act 1996 ("the Act"). You are aware that TAB has received advice that the action is not protected. In any event, to avoid doubt, we herewith give you notice that if you wish to maintain that your absence was protected industrial action we will act on that assertion and you are herewith notified that you are "locked out" for the purposes of the Act from Saturday 31 March until Monday 30 April 2001. Unless we hear to the contrary before Saturday 31 March 2001 we will assume that you maintain that you absence was pursuant to protected industrial action and you will be locked out. Such lock out is the Company's right pursuant to the terms of the Workplace Relations Act 1996 in response to the ASU Services' industrial action. If you wish to access the TAB Credit Union during this time, please contact your Call Centre manager on 92181231 and access will be arranged. Otherwise, you will not be required to work, nor will you be given access to the Company's Ultimo or Granville offices, until Monday 30 April 2001."