Construction, Forestry, Mining & Energy Union v Anglo Coal (Moranbah) North Management) Pty Ltd [2004] FCA 604

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining & Energy Union v Anglo Coal (Moranbah) North Management) Pty Ltd [2004] FCA 604 INDUSTRIAL LAW – protected action under s 170ML of Workplace Relations Act 1966 (Cth) – whether employer breached s 170MU of the Workplace Relations Act 1966 (Cth) – whether stand-down clause in award allows employer to stand-down employees participating in protected action – employer's motivation for standing down employees Workplace Relations Act 1966 (Cth) ss 4, 126, 170MI, 170ML, 170MO, 170MP, 170MT, 170MU, 170NC Acts Interpretation Act 1901 (Cth) subs 13(3), s 15AB THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v ANGLO COAL (MORANBAH NORTH MANAGEMENT) PTY LTD Q 154 OF 2003 DOWSETT J 13 MAY 2004 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 154 OF 2003

BETWEEN: THE CONSTRUCTION, FORESTRY, MINING & ENERGY UNION

APPLICANT

AND: ANGLO COAL (MORANBAH NORTH MANAGEMENT) PTY LTD

RESPONDENT

JUDGE: DOWSETT J

DATE OF ORDER: 13 MAY 2004

WHERE MADE: BRISBANE

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.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 154 OF 2003

BETWEEN: THE CONSTRUCTION, FORESTRY, MINING & ENERGY UNION

APPLICANT

AND: ANGLO COAL (MORANBAH NORTH MANAGEMENT) PTY LTD

RESPONDENT

JUDGE: DOWSETT J

DATE: 13 MAY 2004

PLACE: BRISBANE

REASONS FOR JUDGMENT

BACKGROUND 1 The applicant alleges that the respondent has acted contrary to ss 170MU and 170NC of the Workplace Relations Act 1966 (Cth) (the "Act") and seeks appropriate relief. The facts of this case appear from the agreed statement of facts which is Exhibit 1. I will attach it to these reasons. It is therefore not necessary to rehearse the facts in detail. 2 In September 2003 the applicant was seeking to negotiate the terms upon which its members would, in future, be employed in the Moranbah North coal mine. In particular, it wanted to negotiate an agreement of the kind described in the Act as a "certified agreement". Towards the end of September the applicant and its members took industrial action in support of their claims. In effect, various employees reported for work but declined to work their full shifts. The respondent stood down a number of those employees. These proceedings concern the legality of such stand-downs. 3 Part VIB of the Act deals with certified agreements. Division 8 of that Part establishes a regime pursuant to which parties seeking to negotiate such an agreement may take what is called "protected action" in support of their claims. In particular, s 170ML provides: '(1) This section identifies certain action (protected action) to which the provisions in section 170MT (which confers certain legal immunity on protected action) are to apply. (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) Subject to subsection (6), during the bargaining period, the employer is entitled, for the purpose of: (a) supporting or advancing claims made by the employer in respect of the proposed agreement; or (b) responding to industrial action by any of the employees whose employment will be subject to the agreement; to lock out from their employment all or any of the employees whose employment will be subject to the agreement and, if the employer does so, the lockout is protected action. Note 1: The existence of this entitlement does not affect any right of the employer to refuse to pay the employee where, under the common law, the employer is permitted to do so because the employee has not performed work as directed. Note 2: The existence of this entitlement also does not affect any authorisation of the employer to stand-down the employee as a result of a variation of an award under section 126, nor does it affect the Commission's powers under that section to vary an award to give such an authorisation. (4) The reference in subsection (3) to the employer locking out employees from their employment is a reference to the employer preventing employees from performing work under their contracts of employment without terminating those contracts. (5) If the employer locks out the employees from their employment in accordance with subsection (3), the employee is entitled to refuse to pay any remuneration to the employees in respect of the period of the lockout. (6) The employer is not entitled to lock out employees from their employment under subsection (3) unless the continuity of the employees' employment for such purposes as are prescribed by the regulation is not affected by the lockout. (7) This section has effect subject to the following provisions of this Division.' 4 The term "industrial action" is defined in s 4 of the Act. Save for par (f) that definition appears to describe actions by employees. Only by straining the language could one apply it to actions by employers. However par (f) clearly contemplates industrial action by an employer. This may be an artefact surviving from some earlier form of the definition. In any event, ss 170ML, 170MO and 170MP all contemplate "industrial action" by unions or employees and "lockouts" by employers. Pursuant to s 170MO, industrial action will only be protected if appropriate notice has been given by the relevant union or union member. A lockout will be protected under s 170MO if an employer has similarly given notice. 5 The nature of the "protection" attaching to protected action appears from ss 170MT and 170MU. Pursuant to s 170MT, a person involved in protected action is generally immune from legal proceedings arising out of such conduct. Section 170MU provides: '(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) Subsection (1) of this section does not apply to any of the following actions taken by the employer: (a) standing-down the employee; (b) refusing to pay the employee where, under the common law, the employer is permitted to do so because the employee has not performed work as directed; (c) action of the employer that is itself protected action. (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.' 6 On Friday 19 September 2003 the applicant gave notice pursuant to s 170MO of the Act. The notice stated that: 'The industrial action will commence on Tuesday, 23rd September 2003 and will take the form of: ۰ For the crews on the 12 hour shifts, namely A, B, C and D Crews, there will be a 6.25 hour stoppage of work each day from 1 am to 7:15 am from Tuesday, 23rd September 2003 up until and including Tuesday, 30th September 2003 ۰ For the Window Crews there will be a three hour stoppage of work from 1 am until 4:00 am on Tuesday, 23rd September 2003 and a 5.75 hour stoppage of work each day from 10:15 pm to 4 am the following day from Tuesday, 23rd September 2003 up until and including Tuesday 30th September 2003. ۰ ... .' 7 Mr Paul Rex Hendry, the Human Resources Manager of the respondent, swore in his affidavit that such action was taken, resulting in: '... crews on various shifts performing work for the first part of their rostered 12 hour shift, but commencing a stoppage of work approximately halfway through the shift until the end of the shift.' 8 Prior to 28 September 2003 the respondent did not respond to such action. However, on 28 September 2003 Mr Hendry stood down 24 employees who were employed on either the Night D crew or the Window D crew. He claimed that the decision to stand down the employees was taken for operational reasons which he explained in some detail. 9 The Window D crew commenced duty at 4.00 pm on 28 September 2003. It consisted of six employees. Pursuant to the notice given on 19 September, members of this crew were to stop work at 10.15 pm. At 7.10 pm Mr Hendry called the crew to the surface. He then addressed each member, following a prepared script which appears as annexure PRH 10 to his affidavit. In effect he directed each employee to work the full shift, indicating that if he did not agree to do so, he would be refusing to comply with a lawful direction, thereby breaching his contractual obligations. Mr Hendry further stated that such an employee would not be paid for the shift or any part of it unless he was prepared to work in accordance with the direction. Each employee was then asked if he understood what had been said and whether he refused to work as directed. Five members of the Window D crew refused to comply with the direction but indicated that they were willing to work that part of the shift not covered by the notified industrial action. They were stood down and left the mine. 10 The Night D crew was scheduled to commence work at 7.15 pm. The crew consisted of 27 employees. At the scheduled commencement time of the shift Mr Hendry issued an oral direction in the same form as that used in the case of the Window D crew. Nineteen members refused to comply with the direction and were stood down. On 29 September, Mr Hendry similarly stood down 21 employees, again members of the Window D and Night D crews. The various employees were not paid for the shift or part of the shift during which they were stood down. The applicant served further notices pursuant to s 170MO, and further industrial action was taken. However no further stand-downs occurred. 11 Stand down action was authorised by clause 4 of the Moranbah North Coal Enterprise Award which provided: '4.1 Employment will be by the month. 4.2 Employees will perform work as directed. 4.3 [The respondent] may require employees to perform any work within their skills, training, experience and knowledge. 4.4 [The respondent] may withhold payment for any period for which work is not performed in accordance with subclauses 4.2 and 4.3 above. 4.5 [The respondent] may stand down an employee for part or all of a day: 4.5.1 for refusal of duty; 4.5.2 for neglect of duty; 4.5.3 for misconduct; 4.5.4 if the employee cannot be usefully employed in the employee's usual classification because of a strike; or 4.5.5 if the employee cannot be usefully employed in the employee's usual classification because of a breakdown of machinery that has lasted for more than four consecutive working days. The day of the breakdown is counted as one of the four consecutive working days if it happens to be a working day. 4.6 An employee is not entitled to payment while stood down under subclause 4.5 above.'