FEDERAL COURT OF AUSTRALIA Adelaide Brighton Cement v Australian Workers Union [2002] FCA 601 INDUSTRIAL LAW – industrial action – whether protection action – whether notices of intended industrial action complied with s 170MO of the Workplace Relations Act 1996 (Cth) – whether notices identified the intended action and the day when it will begin. Workplace Relations Act 1996 (Cth); ss 170ML, 170MO Davids Distribution Pty Ltd v National Union of Workers (1999) 165 ALR 550 referred to. ADELAIDE BRIGHTON CEMENT v AUSTRALIAN WORKERS UNION & OTHERS S 115 of 2002 von DOUSSA J 10 MAY 2002 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S115 OF 2002 BETWEEN: ADELAIDE BRIGHTON CEMENT APPLICANT AND: AUSTRALIAN WORKERS UNION AND OTHERS RESPONDENT JUDGE: von DOUSSA J DATE OF ORDER: 10 MAY 2002 WHERE MADE: ADELAIDE THE COURT DECLARES THAT: 1. All industrial action threatened by the first respondent on and after 7am on Thursday 2 May 2002 pursuant to the Notice of Intention to take Industrial Action dated 26 April 2002 is not "protected action" within the meaning of the Workplace Relations Act 1996 (Cth). 2. All industrial action threatened by the second respondent on and after 7am on Thursday 2 May 2002 pursuant to the Notice of Intention to take Industrial Action dated 26 April 2002 is not "protected action" within the meaning of the Workplace Relations Act 1996 (Cth). 3. All industrial action threatened by the third respondent on and after 7am on Thursday 2 May 2002 pursuant to the Notice of Intention to take Industrial Action dated 24 April 2002 is not "protected action" within the meaning of the Workplace Relations Act 1996 (Cth). THE COURT ORDERS THAT: 4. The first, second and third respondents, whether by themselves, their servants, agents or howsoever otherwise, are restrained from: 4.1 organising, inciting or otherwise encouraging industrial action or other action; and 4.2 continuing to organise, incite or otherwise encourage industrial action or other action; and 4.3 threatening to organise, incite or otherwise encourage industrial action or other action; pursuant to or in reliance upon the notices to the applicant dated 24 April 2002 and 26 April 2002 being exhibits KLS1 to KLS5 to the affidavit of Kathryn Leanne Spence sworn on 30 April 2002. 5. In the above declarations and orders "industrial action" means industrial action as defined by s 4 of the Workplace Relations Act 1996 (Cth) at the applicant's site located at Birkenhead in the State of South Australia on and after 7.00am on Thursday 2 May 2002. 6. Adjourn for further consideration the claims for penalties and for further relief against the fourth to seventh respondents to a date to be fixed. 7. Liberty to any party to apply on short notice. 8. Question of costs adjourned to a date to be fixed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S115 OF 2002 BETWEEN: ADELAIDE BRIGHTON CEMENT LTD APPLICANT AND: AUSTRALIAN WORKERS UNION AND OTHERS RESPONDENT JUDGE: von DOUSSA J DATE: 10 MAY 2002 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 The principal question in these proceedings is whether proposed industrial action intended by the respondents, or some of them, would be protected action under s 170ML of the Workplace Relations Act 1996. 2 The matter was listed to hear an urgent application for an interlocutory injunction. However as argument progressed, it became plain that there was no significant dispute about the background facts, and the issue in contention between the parties turned on the adequacy of purported notices of action given under s 170MO. In the circumstances, the parties agreed that the claims for a declaration and injunction should be immediately determined. At the conclusion of the hearing I announced that I considered that the notices relied on by the respondents did not comply with s 170MO, and I ordered that declarations and injunctions be made in the terms recorded at the end of this judgment. I said that I would publish reasons for that decision. These are the reasons. 3 The applicant, Adelaide Brighton Cement Ltd (ABCL), operates a plant at Birkenhead which produces clinker and cement through the processing of limestone. It produces between 4,000 and 4,100 tonnes of clinker and 2,700 to 3,000 tonnes of cement per day. Substantial quantities of clinker are exported to Western Australia and Queensland. ABCL is the sole supplier of cement to the local South Australian market, and also supplies cement to Independent Cement and Lime in Melbourne. 4 ABCL operates five shifts at Birkenhead. It operates seven days a week, employing forty workers in connection with its manufacture of clinker and cement and approximately fifty maintenance employees. The terms and conditions of the employment of the employees are governed by the Cement Manufacturing – Adelaide Brighton Cement Ltd Birkenhead Site Certified Agreement 1999 (the Agreement). The Agreement is a certified agreement pursuant to s 170LJ of the Act. It had a nominal expiry date of 30 June 2001 but presently continues to operate by force of law. 5 The three respondent unions in the present proceedings are parties to the Agreement. They are the Australian Workers Union (AWU) representing shift operators, operators in the bagging shed, the yard and the wharf, and cleaners; the Automotive Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) representing the metal trades employees, fitters and riggers; and the Communications, Electronic, Energy, Postal Telecommunications and Allied Services Union (CEPU) representing electrical trade employees. These three unions have been involved in negotiations for a replacement of the Agreement since 10 May 2001. The negotiations have not so far been successful. The fourth respondent, Mr John Gresty, is the AMWU delegate representing members of that union on the Birkenhead site. The fifth respondent, Mr John Braithwaite, is an organiser for the AWU. The sixth respondent, Mr Robert Johnston, is the Assistant Secretary of the electrical division of the CEPU in South Australia. The seventh respondent, Mr Geoff Munro, is an official of the CEPU representing interests of the CEPU employed at Birkenhead. 6 In the course of a meeting on 24 April 2002 between representatives of ABCL and the three unions to discuss enterprise agreement issues, the AWU served notice of intended industrial action. ABCL subsequently received a notice in similar terms from the AMWU. As there were apparent errors on the face of each of these notices, they were replaced by further notices, the one from the AWU bearing date 26 April 2002, and the replacement notice from the AMWU bearing date 24 April 2002. On 26 April 2002 ABCL also received a notice of intended industrial action from the CEPU. 7 The notice dated 26 April 2002 from the AWU reads: "NOTICE OF INTENDED INDUSTRIAL ACTION NOTICE IS HEREBY GIVEN that officers and employees of the Australian Workers' Union, (AWU) and members of the AWU employed by you intend to organise and engage in industrial action in accordance with the provisions applying to 'protected action' set out in s 170ML of the Workplace Relations Act 1996. The particulars of this notice are as follows: 1. On and from Thursday 2 May 2002, all members of the AWU employed by Adelaide Brighton Cement, engaged at Birkenhead in the State of South Australia, will commence industrial action, namely: 1.1 A series of rolling stoppages involving all AWU members of Adelaide Brighton Cements Birkenhead Operations, including yard, production, maintenance, bagging shed, wharf operators. The duration of each stoppage will be of 24 hours duration. The first stoppage will commence at 7.00 am on Thursday 2 May 2002. The rolling stoppages will continue until 7.00 am on Monday 30 September 2002. Frank Mateos Assistant Branch Secretary" 8 The notices from the AMWU and the CEPU are in similar terms, save that they refer to officers and employees of their particular unions. In the case of the AMWU there is one further difference. The paragraph giving particulars of the notice commences: "On and from Tuesday 16 April 2002 all members of the AMWU …" This wording reflects an error as to the date of the commencement of the notified action contained in the first AWU notice which was copied by the AMWU. The AWU later corrected the error in its notice dated 26 April 2002, set out above. 9 This error as to date in the AMWU notice is apparent on the face of the notice and in my opinion would not mislead the recipient of the notice. The reference to Tuesday 16 April 2002 is patently wrong as the notice itself was given on 24 April 2002. Any confusion that might be caused by that error is clarified in the penultimate sentence of the notice which advises that the first stoppage will commence at 7.00 am on Thursday 2 May 2002. Whilst ABCL did not concede the immateriality of this error, it was not the basis of its application. 10 The matter came on for hearing late in the afternoon of Thursday 2 May 2002. At that time members of each of the respondent unions were participating in a stoppage which had commenced at 7.00 am on 2 May 2002. The relief sought by ABCL included declarations that the industrial action which commenced on 2 May 2002 was not "protected action" as the relevant notices did not comply with the requirements of s 170MO, and injunctions restraining further industrial action threatened by the first, second and third respondents pursuant to the Notices of Intended Industrial Action (the Notices) upon which they purported to rely. 11 Section 170ML of the Act relevantly provides: "(1) … (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. (3) … (4) … (5) … (6) … (7) This section has effect subject to the following provisions of this Division." The expression "industrial action" is defined in s 4 of the Act. It is not suggested by ABCL that the action threatened by the first, second and third respondents pursuant to the Notices would be otherwise than industrial action as defined. 12 Section 170MO(1) provides that any action taken as mentioned in subs 170ML(2) is not protected action unless the requirements set out in subs 170MO(2) are met. Subsection 170MO(2) relevantly provides: "(2) The requirements are that: (a) … (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." 13 Subsection 170MO(5) contains another requirement for a notice given under s 170MO. That subsection provides: "(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." 14 In the present case there is no dispute that the Notices were given three working days before industrial action commenced as required by s 170MO(2)(b). 15 The applicants contend that the Notices fail to comply with s 170MO as they do not adequately state the nature of the intended action and the day when it will begin, as required by s 170MO(5). 16 In David's Distribution Pty Ltd v National Union of Workers (1999) 165 ALR 550 at 578 Wilcox and Cooper JJ (with whom Burchett J agreed on this point) said: "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 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. 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'. If we are correct in this approach, it follows that a notice that refers only to 'bans and rolling stoppages', without any indication of the nature of the bans or the location of the rolling stoppages, does not adequately disclose 'the nature of the intended action'." 17 Earlier in their judgment Wilcox and Cooper JJ at 577 – 578 had rejected the view that a notice would sufficiently comply with s 170MO if it merely described the intended action in terms of one of the paragraphs of the definition of industrial action in s 4 of the Act. Such a description, being general in nature, would not describe "the action" as required by s 170MO(2)(b), and would not sufficiently identify "the action" proposed to enable appropriate defensive action to be taken. 18 The degree of specificity in a notice sufficient to enable the employer to take appropriate defensive action must be judged against the nature of the employer's undertaking and the way in which that undertaking operates. 19 ABCL contends that the notices of intended industrial action fail to give sufficient information about the nature of the intended action and the day when it will begin to enable it to take appropriate defensive action. The affidavit filed on behalf of ABCL in support of the application deposes to the difficulty which the notices present to ABCL as follows: "46. The only thing that is clear is the duration of each subsequent stoppage being of 24 hours duration. 47. As a consequence of the notices issued by the Unions, ABCL has redirected staff employees into production positions to continue to run the plant from 7am on Thursday to (sic – 2) May 2002. 48. ABCL are planning to run two 12 hour shifts to try and continue business as normal from 7am on Thursday 2 May 2002. 49. After that, ABCL is not able to plan appropriate defensive action. 50. ABCL is not sure what time on what day and in what area it will need to allocate labour resources to maintain production. 51. If the company was provided with 3 clear working days notice of the industrial action prescribed by the Act, it would be in a position to plan rosters of staff to continue to run the plant. 52. Without that notice, staff might already have performed a 12 hour shift and be unavailable to continue production. 53. Likewise, if the workers who have threatened to take action say that they are available for a shift ABCL would be forced to stand-down those rostered staff. 54. Those staff would not lose pay as they are in receipt of a salary, but the company would lose the value of their service for that 12 hour shift. 55. If the staff were rostered to run the plant where labour had been withdrawn and are subsequently advised that the next shift of workers would be taking industrial action, the company would have to consider switching the plant off since it would have no resources to continue to run the plant. 56. I am informed by (the Operations Manager) that when the plant is switched off, it involves a very technical operation in accordance with a structured program. 57. Each time the plant is switched off, it is allowed to cool down and has a propensity to damage the refractory and shorten its life span. 58. The refractory is the protective brick insert that protects the metal of the kiln from melting. 59. Likewise, when it is time to turn the plant on again, an even more structured program is required to re-establish operation. 60. That takes upwards of 8 hours. 61. Again, risk of damage to the plant and equipment is heightened during this process. 62. The alternative to switching the plant on and off is to keep the plant 'boxed up' which is similar to a recondition mode whereby heat is retained in the system but there is no production of cement or clinker. 63. For each day that the plant is unable to produce, ABCL must absorb $120,000.00 per day in fixed costs which is made up of salaries, power, depreciation and overheads." 20 Counsel for ABCL contended that whilst the Notices indicate that each rolling stoppage taken by members of one of the unions will be for a 24 hour duration, the notices fail to indicate the frequency of the rolling stoppages, and whether action taken by the members of one union will be taken in conjunction with the action by members of one or both of the other unions. In the result, it is not known whether one 24 hour stoppage by members of a union will be followed immediately by one or more further 24 hour stoppages by members of that union, in which case the rolling stoppages become in substance a strike of unknown duration. Further, it is not known whether a rolling stoppage by the members of one union will be immediately followed by a 24 hour stoppage by members of one or both the other unions. The possible combination of stoppages by members of one, two or three unions at the same time or in staggered sequence adds to the uncertainty and confusion which arises under the notices. Counsel referred to the observations of Goldberg J in PWB Anchor Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union [2000] FCA 1482 at [25 – 27] when considering the arguments of counsel in that case which his Honour thought gave rise to serious questions to be tried arising from notices that referred to "rolling stoppages" and "rolling stoppages … to be imposed at random times" during a specified three month period. 21 Counsel for the respondents argued on behalf of the three respondent unions that the notices met the requirements of s 170MO, and that action of the kind notified would be protected action. Counsel contended that each notice was specific in that it described the nature of the proposed action, namely "a series of rolling stoppages"; it specified who would participate in the action, namely "all … members"; it nominated the location of the action, namely (by inference) the Birkenhead plant, and also specified sub-locations; it specified the duration of each rolling stoppage namely "24 hours duration"; and it specified when the first stoppage would commence and the last stoppages would end, namely 2 May 2002 and 30 September 2002 respectively. Counsel argued that ABCL was therefore given sufficient information to enable it to take defensive action. Counsel also relied upon an affidavit of the fifth respondent which deposed that: "In response to par 53 of the Affidavit (filed by the applicant in support of the application) I say that Adelaide Brighton Cement Ltd would not be forced to stand down rostered staff as those staff would simply revert to their normal duties." 22 In my opinion, notwithstanding the fact that the Notices are specific in the manner identified by counsel for the respondents, each Notice fails to meet the requirements of s 170ML(5), substantially for the reasons given by counsel for ABCL. Each Notice fails to give any indication of when 24 hour rolling stoppages after the first one will take place, with the result that ABCL does not know from day-to-day whether it will have to make provision for a stoppage of 24 hours duration. In this sense the Notices anticipate rolling stoppages at random times. From day to day ABCL will not know whether it must make provision for a possible stoppage of 24 hours duration or for a stoppage of 48 hours, 72 hours or some significantly longer period. The response of the fifth respondent to the effect that ABCL would not be forced to stand down rostered staff if a stoppage did not occur on a particular day as those staff could simply revert to normal duties fails to address the difficulties of rostering the staff in the first place to accommodate the possibility of back-to-back rolling stoppages each of 24 hours duration. 23 Further, in the circumstances in which each of the Notices was given, there can be no doubt that each of the three respondent unions was fully aware of the Notice to be given by each of the other two unions in anticipation of rolling stoppages by members of those unions. In judging whether each Notice is sufficient in its particularity to enable ABCL to take appropriate defensive action, the Notices given by the other two unions comprise part of the factual circumstances against which the position of ABCL must be assessed. 24 As I considered that each of the Notices failed to comply with s 170MO, with the consequence that industrial action threatened by them would not be protected action, I ordered that the declarations sought by ABCL be made, and injunctive relief be granted against the three respondent unions. I did not consider that on the facts before the Court there was any reason to suspect that the fourth to seventh respondents respectively would not respect the declarations, and accordingly I considered that the claims for injunctive relief against them should be stood over. 25 For the above reasons the following declarations and orders were made: 26 The Court declares that: 27 1. All industrial action threatened by the first respondent on and after 7am on Thursday 2 May 2002 pursuant to the Notice of Intention to take Industrial Action dated 26 April 2002 is not "protected action" within the meaning of the Workplace Relations Act 1996 (Cth). 28 2. All industrial action threatened by the second respondent on and after 7am on Thursday 2 May 2002 pursuant to the Notice of Intention to take Industrial Action dated 26 April 2002 is not "protected action" within the meaning of the Workplace Relations Act 1996 (Cth). 29 3. All industrial action threatened by the third respondent on and after 7am on Thursday 2 May 2002 pursuant to the Notice of Intention to take Industrial Action dated 24 April 2002 is not "protected action" within the meaning of the Workplace Relations Act 1996 (Cth). 30 The Court orders that: 31 4. The first, second and third respondents, whether by themselves, their servants, agents or howsoever otherwise, are restrained from: 32 4.1 organising, inciting or otherwise encouraging industrial action or other action; and 33 4.2 continuing to organise, incite or otherwise encourage industrial action or other action; and 34 4.3 threatening to organise, incite or otherwise encourage industrial action or other action; 35 pursuant to or in reliance upon the notices to the applicant dated 24 April 2002 and 26 April 2002 being exhibits KLS1 to KLS5 to the affidavit of Kathryn Leeanne Spence sworn on 30 April 2002. 36 5. In the above declarations and orders "industrial action" means industrial action as defined by s 4 of the Workplace Relations Act 1996 (Cth) at the applicant's site located at Birkenhead in the State of South Australia on and after 7.00am on Thursday 2 May 2002. 37 6. Adjourn for further consideration the claims for penalties and for further relief against the fourth to seventh respondents to a date to be fixed. 38 7. Liberty to any party to apply on short notice. 39 8. Question of costs adjourned to a date to be fixed. I certify that the preceding thirty-nine numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa Associate: Dated: 10 May 2002 Counsel for the Applicant: Ms R Layton QC Solicitors for the Applicant: EMA Legal Counsel for the Respondent: Mr S Dolphin Solicitors for the Respondent: Lieschke & Weatherill Date of Hearing: 2 May 2002 Date of Judgment: 10 May 2002