MEDIA ENTERTAINMENT AND ARTS ALLIANCE v BUNDABERG NEWSPAPER COMPANY PTY LTD & MEDIA ENTERTAINMENT AND ARTS ALLIANCE v TOOWOOMBA NEWSPAPERS PTY LTD [1997] IRCA 69

DECISION NO:69/97 CATCHWORDS INDUSTRIAL LAW - Industrial Action - Liability of employer to pay wages during a lockout - Standing down of employees - No Work, No Pay Principle - Payment for part performance of duties. Workplace Relations Act 1996 s 170PH, 170PK, 170PM, 178 Federated Municipal and Shire Council Employees Union of Australia v City of Northcote (1990) 34 IR 128 Unilever Australia Limited v Food Preservers Union (1992) 45 IR 12 No. NI 1426 of 1996 MEDIA ENTERTAINMENT AND ARTS ALLIANCE v BUNDABERG NEWSPAPER COMPANY PTY LTD No. NI 1427 of 1996 MEDIA ENTERTAINMENT AND ARTS ALLIANCE v TOOWOOMBA NEWSPAPERS PTY LTD MOORE J SYDNEY 13 MARCH 1997

IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY) No. NI 1426 of 1996 BETWEEN: MEDIA ENTERTAINMENT AND ARTS ALLIANCE Applicant AND: BUNDABERG NEWSPAPER COMPANY PTY LTD Respondent No. NI 1427 of 1996 BETWEEN: MEDIA ENTERTAINMENT AND ARTS ALLIANCE Applicant AND: TOOWOOMBA NEWSPAPERS PTY LTD Respondent JUDGE: Moore J PLACE: Sydney DATE: 13 March 1997 ORDER OF THE COURT THE COURT ORDERS THAT: 1. Applications NI 1426 of 1996 and NI 1427 or 1996 are dismissed NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules. IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY) No. NI 1426 of 1996 BETWEEN: MEDIA ENTERTAINMENT AND ARTS ALLIANCE Applicant AND: BUNDABERG NEWSPAPER COMPANY PTY LTD Respondent No. NI 1427 of 1996 BETWEEN: MEDIA ENTERTAINMENT AND ARTS ALLIANCE Applicant AND: TOOWOOMBA NEWSPAPERS PTY LTD Respondent JUDGE: Moore J PLACE: Sydney DATE: 13 March 1997 REASONS FOR JUDGMENT Two applications have been brought, under s 178 of what is now entitled the Workplace Relations Act 1996 ("the Act"), by the Media Entertainment and Arts Alliance ("the Union") against two newspaper publishers, the Toowoomba Newspapers Pty Limited ("Toowoomba Newspapers") and Bundaberg Newspaper Company Pty Limited ("Bundaberg Newspaper"). Both companies are subsidiaries of Australian Provincial Newspapers Pty Limited. It is convenient to deal with both applications in the one judgment. On 18 October 1995, letters were written to the general managers of both Toowoomba Newspapers and Bundaberg Newspaper by the joint federal secretary of the Union. The letters purported to be notice under s 170PD(2) of the Act initiating a bargaining period. I will discuss the legal significance of these letters shortly. The text of both letters was not materially different. They said: "Please be advised that the Media, Entertainment and Arts Alliance intends to try to reach an agreement under Division 2 of the Act with your company in settlement of the dispute found in C No. 20095 of 1991 in so far as it involves members of the Alliance employed by your company under the terms of the Journalists (Regional Daily Newspapers) Award 1994. The Alliance intends to have any agreement reached certified under Division 2. I would be grateful if you could contact either myself or Emma Walters of this office to organise a time to meet and commence negotiations on the claims set forth in the attached notification to the Australian Industrial Relations Commission." Attached to each letter was a notice seemingly in accordance with Form R8F of the Rules of the Australian Industrial Relations Commission ("the Commission"). The notice, among other things, identified a range of matters that it sought to be include in the agreement and, in this respect, took the form of a list of claims being made by the Union. On 30 October 1995, another letter was sent to the general managers of both Toowoomba Newspapers and Bundaberg Newspaper. Again it was in the same form and was said to be a notice of intention to commence industrial action of the type contemplated in s 170PH(3) of the Act. The Union does not rely on this notice so its contents are not material. Toowoomba Newspapers publishes a tabloid newspaper called the "Chronicle". On 2 November 1995, journalists employed to prepare the Chronicle refused to use new pagination software technology, Quark Express software, which had been introduced by the company in the period January to June 1995. Sub-editors indicated they would not use the technology but did not indicate they would not otherwise perform their duties. Late in the afternoon of 3 November 1995, the managing director of Toowoomba Newspapers, Mr Paul McMahon, who had been the recipient of the letters of 18 and 30 October 1995 from the Union, met with journalists working on the Chronicle to discuss industrial action they were engaged in. In due course Mr McMahon had a conversation with four sub-editors which took essentially the same form. Mr Mitchell requested the sub-editors undertake all their duties, including operating the pagination technology. Each refused. The four sub-editors were stood down by Mr Mitchell for a period for which they were not paid their wages and superannuation under the Journalists (Regional Daily Newspapers) Award 1991. The application under s 178 seeks payment of the wages and superannuation that would have been paid to the employees for that period. Similar events occurred with the journalists employed by Bundaberg Newspaper which publishes a tabloid newspaper called the "New Mail". The events concerning journalists employed by Bundaberg Newspaper are slightly more complex. There was not simply one instance of employees refusing to undertake their full range of duties and being stood down for a comparatively short period. However it is unnecessary to detail the events at the New Mail having regard to the issue raised by the Union in the application brought under s 178. An exception to this concerns the position of Mr Irvine, which I will discuss later. It is unnecessary to embark upon any more detailed consideration of the facts for two reasons. First, the way the case was argued by the Union meant that the material facts were limited in scope. Second, there was an agreement between the Union and both Toowoomba Newspapers and Bundaberg Newspaper that the evidence in affidavits filed by the two companies would prevail over the evidence in affidavits filed by the Union in the event of there being any inconsistency between them. There was agreement that it was unnecessary for any witness to be cross examined. Thus the affidavits filed in the proceedings constitute something akin to a statement of agreed facts. There were three qualifications to the agreement concerning the affidavits of the three witnesses called by the company, but again they are not material. The applications under s 178 raise a narrow issue. It concerns the operation of Part VIB of the Act, "Promoting Bargaining and Facilitating Agreements", and, in particular, Division 4 which deals with immunity from civil liability. The objects of Division 4 are set out in s 170PA. It provides: "(1) The object of this Division is to give effect, in particular situations, to Australia's international obligation to provide for a right to strike. This obligation arises under: (a) Article 8 of the International Covenant on Economic, Social and Cultural Rights (a copy of the English text of the Preamble, and Parts II and III, of the Covenant is set out in Schedule 8); and (b) the Freedom of Association and Protection of the Right to Organise Convention, 1948 (a copy of the English text of the Preamble, and Parts I and II, of the Convention is set out in Schedule 15); and (c) the Right to Organise and Collective Bargaining Convention, 1949 (a copy of the English text of the Preamble, and Articles 1 to 6, of the Convention is set out in Schedule 16); and (d) the Constitution of the International Labour Organisation; and (e) customary international law relating to freedom of association and the right to strike. (2) The Parliament considers that it is necessary to provide specific legislative protection for the right to strike, subject to limitations compatible with the existence of the right, in situations where: (a) there exists an industrial dispute involving an employer and one or more organisations members of which: (i) are employed by the employer to perform work in a single business, part of a single business or a single place of work; and (ii) are covered by an award; and (b) the employer and one or more of those organisations are negotiating an agreement under Division 2." The scheme of Division 4 centres on s 170PM which gives both employers and registered organisations and their members, officers and employees, an immunity from action. The section provides: "(1) An order made by the Commission under section 127 does not apply to protected action. (2) A bans clause does not apply to protected action. (3) Subject to subsection (4), an action does not lie under any law (whether written or unwritten) in force in a State of 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. (4) Subsection (3) does not prevent an action for defamation being brought in respect of anything that occurred in the course of industrial action." Before the immunity conferred by s 170PM arises there are several procedural steps that must be taken. The first is that either the employer or an organisation of employees initiates a bargaining period by giving written notice to the other party or parties, and to the Commission under s 170PD. Section 170PF provides that the bargaining period begins at the end of seven days after the day on which the notice was given though subject to qualifications which are not presently relevant. Of central importance to the submission made by the Union is s 170PG which provides: "(1) This section identifies certain action ("protected action") to which the provisions set out in section 170PM are to apply. (2) During the bargaining period, an organisation of employees that is a negotiating party, a member of such an organisation who is employed by the employer, or an officer or employee of such an organisation acting in that capacity, is entitled, for the purpose of supporting or advancing claims made by the organisation that are the subject of the industrial dispute, to organise or engage in industrial action directly against that 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 that are the subject of the industrial dispute; or (b) responding to industrial action by any of the relevant employees; or for both of those purposes, to lock out all or any of the relevant employees from their employment and, if the employer does so, the lockout is protected action. (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 employees from their employment in accordance with subsection (3), the employer 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 regulations is not affected by the lockout. (7) This section has effect subject to the following provisions of this Division." (emphases added) It can be seen that this section identifies action that may be undertaken by either an employer or an organisation of employees and, inter alia, its members. There are several references to "industrial action" in the section. Those words are defined in s 4 of the Act in the following way: ""industrial action" means: (a) 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 delay in, the performance of the work, where: (i) the terms and conditions of the work are prescribed, wholly or partly, by an award or an order of the Commission, by an award determination or order made by another tribunal under a law of the Commonwealth or otherwise by or under a law of the Commonwealth; or (ii) the work is performed, or the practice is adopted, in connection with an industrial dispute; (b) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, in accordance with the terms and conditions prescribed by an award or an order of the Commission, by an award, determination or order made by another tribunal under a law of the Commonwealth or otherwise by or under a law of the Commonwealth; (c) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, that is adopted in connection with an industrial dispute; or (d) 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; but does not include: (e) action by employees that is authorised or agreed to by the employer of the employees; or (f) action by an employer that is authorised or agreed to by or on behalf of employees of the employer;" The word "lock out" is not defined. A feature of the scheme in Division 4 is that the immunity conferred by s 170PM arises only if 72 hours notice is given of the intention to take the industrial action. An organisation of employees must give written notice to both the employer: see s 170PH(1), and the Registrar of the Commission: see s 170PK(1)(c). Similarly, an employer is obliged to give 72 written notice of its intention to lock out employees: see s 170PH(2), in order to secure the immunity conferred by s170PM. The submission of the Union was that when an employer and an organisation of employees are in a bargaining period of the type to which Division 4 applies, an employer is entitled only to respond to industrial action by locking out employees, and then only in the manner provided for in Division 4. In that respect, the Union submitted, Division 4 should be viewed as a code. It was necessary that 72 hours notice be given in the way contemplated in s 170PH. Thus the standing down of employees in the circumstances of this case was not authorised as no notice had been given. It was also submitted that the word "lockout" does not comprehend the conduct of both Toowoomba Newspapers and Bundaberg Newspaper in the present case. Thus it was not conduct permitted by Division 4 during a bargaining period. For the purposes of these proceedings, it was common ground that both Toowoomba Newspapers and Bundaberg Newspaper were lawfully entitled to refuse to pay the members of the Union who were stood down, except Mr Irvine, if the submissions of the Union about the operation of Division 4 was not accepted. The submission of both Toowoomba Newspapers and Bundaberg Newspaper was that the right conferred by s 170PG only concerns industrial action which is protected action. Further, Division 4 does not prevent an employer from undertaking or engaging in any other lawful response to industrial action. Rather, it simply confers on an employer a right to lock out employees without the attendant risk of civil proceedings. It was common ground that, at common law, an employer who locks out employees is liable to pay wages to the employees if the employees remain ready, willing and able to work. In my opinion, the submission of the Union misconceives the effect of Division 4. It is a simple one clothed in, and thus some what disguised by, a complex array of procedural requirements. The Division's purpose is simply to enable organisations of employees, and their members as well as employers to engage in action which might otherwise expose them to civil liability actionable in a civil court. What its operation is, if any, in relation to the criminal law is a matter I need not address. Division 4 neither expressly nor, in my opinion, impliedly, prohibits lawful conduct of an employer arising from industrial actions by its employees. Similarly, it does not prohibit industrial action of an organisation of employees or its members which might be unlawful in the sense that it might be actionable as a civil wrong, whether in tort, contract or otherwise. The Division simply confers a right to engage in such conduct immune from civil liability if the various statutory preconditions to the operation of s 170PM are satisfied. For these reasons I do not accept the primary submission of the Union. In my opinion, both Toowoomba Newspapers and Bundaberg Newspaper were lawfully entitled to refuse to pay the members of the Union who were stood down. As noted earlier, that conclusion is based on a concession by the Union that this result flows from the rejection of its argument about the effect of Division 4. While, on one view, it is unnecessary to deal with the submission of the employer that the reference in s 170PG(3)(b), to industrial action should be treated as a reference to "protected action", I should do so. The definition of "industrial action" is in wide terms. The context within which those words appear in para (b) does not suggest they should be given any meaning other than the defined meaning. Moreover, the industrial action referred to in para (b) is industrial action by any of the relevant employees. The expression "relevant employees" is found in s 170PD(1) and is a reference to any employee employed by an employer in relation to whom an agreement might be made. However, the protected action on which s 170PM operates is action undertaken by an organisation of employees, a member or an employee or officer of the organisation. Thus, protected action is industrial action undertaken by this identified class of people or bodies. That class would not include some relevant employees if there are employees of an employer who are not members of an organisation. If industrial action for the purposes of s 170PG(b) can be undertaken by people who cannot engage in protected action then it is difficult to see how the former is intended to be a reference to the latter. Moreover, if, as I earlier indicated, Division 4 does not preclude an organisation of employees or its members from engaging in industrial action which might be unlawful in the way I earlier discussed, then it would be a curious result, and in my opinion, an unintended result, that the Act did not confer a right on an employer to lock out employees in those circumstances, but did when the industrial action was protected action. I now consider the position of Mr Irvine. His evidence, contained in a affidavit of 9 July 1996, was that on 3 November 1995 a representative of the Union informed the general manager of Bundaberg Newspaper, Mr Malcolm Smith, that members of the Union would not be using the new pagination technology for 24 hours. While he does not say so directly, I infer that it was not used on 4 November 1995. On 5 November 1995, the ban on its use was continued for another 24 hours. On 6 November 1995, a committee of members of the Union indicated the ban would continue for another 24 hours. It was on that day that Mr Irvine, along with other employees of Bundaberg Newspaper, were asked to use the new pagination technology. It was also then that Mr Irvine, along with other members of the Union, were told that if he refused to use the new technology he would be stood down. However, Mr Irvine, unlike the other employees, had not been trained to use the new technology. The account of the conversation in Mr Smith's affidavit was as follows: "Me: 'The Company understands that you are presently committed to not performing all your normal duties during this shift because you will not use the new technology. The Company will not accept any form of part performance of your duties. Unless you give me an undertaking that you will perform all your duties for the whole of your shift you will not be required to perform any duty under your contract and you will not be paid. Will you now give me an undertaking to perform all your normal duties for the whole of your shift?' Mr Irvine: 'No I won't give you the undertaking remember Malcolm that I haven't been trained on the new technology but I have to stick with the Union anyway - I would not use the technology even if I could.'" Mr Irvine said that he was then asked by Mr Smith to leave the premises. After a meeting with a representative of the Union and other members, Mr Irvine returned to his work place. However, a stop work meeting took place at 11.00am and Union members went on strike till 3.00pm. I infer that Mr Irvine was one of the striking employees as he was a member of the Union. The following day, 7 November 1995, the committee of Union members indicated that the ban on the new pagination technology would continue for a further 24 hours. That led to a conversation between Mr William Makim, who was the editor of the News Mail and a member of the Union. Other members, including Mr Irvine, were present. In the course of this conversation Mr Makim said: "You don't have to leave the building but you will not be paid for any work if you refuse to use the Quark system. You can use the Atex system but any work that you do on the Atex system will not be used in the newspaper." The Atex system was older technology which, I infer, had been superseded by the Quark Express software. Each sub-editor, including Mr Irvine, was given a letter in the following terms: "You have chosen to place yourself in a position where you have advised the Company that you will not perform work in accordance with your contractual obligations. It is a matter for you to decide when you return to work, as work is available; and you should advise that you will perform your duties in accordance with your contractual obligations." Thereafter Mr Irvine continued to work using the Atex system and perform his duties. The duties that the journalists, including Mr Irvine, refused to perform were not limited to work involving the use of the Quark Express software. They also refused to handle hard copy provided to the newspaper. That is, they refused to process information derived from sources outside the newspaper which was in a printed, typed or written form. This was a duty Mr Irvine refused to perform for the period 3 November 1995 to 7 November 1995 inclusive. It may be accepted that the reason given by representatives of Bundaberg Newspaper why salaries would not be paid in full related only to the refusal to use the Quark Express software. It was also plainly the case that Mr Irvine did not have the skills necessary to do that work and his failure to do it could not have justified a refusal to pay him his entire salary. However the relevant legal issue is whether Irvine was entitled to payment of his wages and superannuation and the employer had unlawfully failed to make payment. The burden of establishing a case under s 178 falls on an applicant. There is evidence from which I infer that Irvine refused to do some work which fell within his normal duties for a period of several days. There was also a period of 4 hours on 7 November 1995 when no work was done. There is no direct evidence which establishes the period in respect of which payment of Mr Irvine's salary was not made. However in an affidavit of Mr Ryan of 28 May 1996, it was asserted that Mr Irvine has not been paid for 22.5 hours. Mr Ryan was the Union's advocate in these proceedings. While Mr Ryan's affidavit was not formally read, I think that was most likely an oversight. In any event, it was asserted from the bar table that Bundaberg Newspaper had failed to pay Mr Irvine 22.5 hours and this was not contradicted. There was also an agreement that included a term that "the Respondents accepts the affidavits of the Applicants (sic)" with qualifications that do no bear upon the period for which Mr Irvine was not paid. In these circumstances I consider I am able to proceed on the basis that Mr Irvine was not paid for 22.5 hours. I infer that the 22.5 hours includes the 4 hours in which Mr Irvine was on strike and performing no duties. Thus I infer from the chronology I earlier set out, that there is a period of 18.5 hours for which Mr Irvine was not paid but in which he was performing most but not all of his duties. The work he was not doing was handling hard copy. However the fundamental difficulty that continues to confront the Union in pursuit of the claim under s 178 in relation to Mr Irvine, is the deficiency in the evidence. There is no evidence as to what Mr Irvine was paid and what he should have been paid. Indeed the Journalists (Regional Daily Newspapers) Award 1991, under which payment was said to arise, is not in evidence. The law is this area cannot be said to be settled: see G. McCarry, "Employer Acquiescence in Work Bans" (1991) 4 Australia Journal of Labour Law 57 and the cases cited, Federated Municipal and Shire Council Employees Union of Australia v City of Northcote (1990) 34 IR 128; Unilever Australia Limited v Food Preservers Union (1992) 45 IR 12. The application of the law to unproved facts in patently impossible. The deficiencies in the Union's evidence can, in a sense, be understood given that the principal issue sought to be raised concerned the operation of part VIB. At one stage Mr Ryan proposed, in relation to Mr Irvine, something akin to decision-in-principle on the basis that the details could be agreed. However this proposal was never accepted and I think it can fairly be said that the approach adopted by counsel for Toowoomba Newspapers and Bundaberg Newspapers, Mr Goot, was that it was the Union's application and they had to make out their case. Having said that, it was also plain that Mr Ryan and Mr Goot were co-operating to ensure the hearing was conducted expeditiously and with minimum formality. Nonetheless, there is no evidence concerning the elements of the Union's application as it concerns Mr Irvine. Accordingly both the applications fail in their entirety. I dismiss both applications.