C2013/5324, Transcript of Proceedings [2013] FWCTrans 646 (7 August 2013)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1048570-1

COMMISSIONER BLAIR

C2013/5324

s.418 - Application for an order that industrial action by employees or employers stop etc.

Paper Australia Pty Ltd T/A Australian Paper
and
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2013/5324)





Melbourne

9.33AM, TUESDAY, 30 JULY 2013

PN1

THE COMMISSIONER: Good morning, appearances please.

PN2

MR A. FARR: If the commission pleases, my name is Farr initial A. I appear on behalf of the applicant in this matter together with MR R. BEALES. Commissioner, I am a legal practitioner and seek your permission to appear today.

PN3

THE COMMISSIONER: Thank you, Mr Farr.

PN4

MR K. REIDY: If the commission pleases, Reidy, K., on behalf of the CEPU and I don’t oppose Mr Farr appearing today, Commissioner.

PN5

THE COMMISSIONER: Thanks, Mr Reidy. Permission is granted, Mr Farr. Mr Farr.

PN6

MR FARR: Thank you, Commissioner. You have our application in respect of this matter and it attaches the section 414 notice which is the subject of the issues between the parties. It’s a very narrow issue, Commissioner, and that is whether or not the notice which was served by the ETU on 19 July 2013 complies with the requirements of section 414 subsection (6) of the Fair Work Act. In particular our criticism is this, Commissioner: the notice outlines that there will be an unlimited number of indefinite or periodic bans on and then there’s three different forms of ban; (1) temporary planning and scheduling duties; (2) performance of higher duties; and (3) use of all sight - s-i-g-h-t - communication devices between 10 am and 11.59 am each day.

PN7

We have two criticisms in particular; one is that the term “an unlimited number of indefinite or periodic bans,” are in essence mutually exclusive. You either have an indefinite ban or you have a periodic ban. You don’t have both at the same time because in those circumstances how could an employer take defensive action to the industrial action, and our second criticism is that the use of all sight -
s-i-g-h-t - communication devices. That is a typographical error which the ETU sought to correct by email to Australian Paper to correct that to be s-i-t-e and I’ll return to that at the end of my submissions, Commissioner.

PN8

So in our submission, the fact that this is an unlimited number of indefinite or periodic bans means that the industrial action is not protected. That’s because the words “unlimited number of indefinite or periodic bans” are both ambiguous and it’s misleading. As I say, is it an indefinite ban, in which case we can take particular responsive action. We might cancel leave for managers to take on some of those duties. We might bring contractors in to do that. Or is it a periodic ban in which case we might absorb the industrial action or we might take different responsive action.

PN9

To the best of our knowledge, Commissioner, this particular use of terminology has not been considered in the sense of section 414 subsection (6) and that’s essentially why we are here. It has been considered in the context of an application under section 437 of the Act for a protected action ballot and the wording has been held to be acceptable, rolling up the questions together to ask employees to approve an indefinite or periodic ban on whatever that ban may be is acceptable in accordance with the Act. However, Commissioner, I take you to a decision of O’Callaghan SDP. The decision is the AMWU in respect of a protected action ballot of ASC Pty Ltd. If I could just hand that decision up.

PN10

So in that particular case, Commissioner, his Honour was considering this rolled-up question and whether or not that would be acceptable for the purposes of section 437 and ultimately found that that was the case, that it was acceptable. But at paragraph 24 and paragraph 25 his Honour had cause to consider the impact of such a question if it were to form part of a section 414 notice, so paragraph 25 talks about the question proposed by the AMWU. His Honour says at paragraph 24:

PN11

The first part of this question goes to the absence of a limitation on the number of bans. I do not regard this component of the question as unclear. It simply reflects a request that employees endorse a multiplicity of bans. The second part of the question goes to the extent to which those bans may be indefinite or periodic. Again, it reflects a request that employees endorse bans of an indefinite or periodic nature.

PN12

So that resolved that issue from a 437 perspective. In the last line of paragraph 24, Commissioner, his Honour goes further to say - or the last sentence:

PN13

On balance and on approach adopted in John Holland I consider this to be a legitimate request for authorisation of industrial action.

PN14

Now paragraph 25:

PN15

That said, I do not regard the question to be anywhere near adequate for the purpose of a notice of employee claim action pursuant to section 414. It does not define what actions will be taken or the basis upon which those actions will occur. In my view, unless the question is substantially refined in the notice of intended industrial action, it could leave the AMWU and, most particularly, employees themselves at a very real risk of taking industrial action which would not be regarded as protected industrial action on the approach generally applied by the courts.

PN16

So here his Honour is wrestling with that’s fine to ask the question from a protected action ballot but could it form the proper basis of a section 414 notice issued to the employer.

PN17

Most recently, your Honour, the full bench has considered the requirements of notice in the Energy Australia Lorne Pty Ltd v CFMEU decision 2013 FWCFB 3793, which I’ll hand to you, a decision which I’m sure, Commissioner, you’re very familiar with. I’m happy to take you, Commissioner, through the full bench’s analysis which really starts at about paragraph 36 about the history of the decisions as they relate to what were previously the MO notices and now the 414 notices. Would it be of assistance if I took the commission through that?

PN18

THE COMMISSIONER: Not really.

PN19

MR FARR: Thank you, Commissioner. So in our submission, it’s quite a straightforward issue. If this notice was redrafted, Commissioner, so that there were two forms of industrial action, so instead of a rolled-up question the first form of industrial action was an unlimited number of indefinite bans on point 1, point 2, point 3, and then the second form of industrial action was an unlimited number of periodic bans on point 1, point 2, point 3, that doesn’t save this. In fact it shows the degree of ambiguity or uncertainty as what is intended by the 414 notice and that’s essentially what the ETU is asking us as the employer to do, that there are two forms of industrial action and we say they are mutually exclusive and they need to tell us what form of industrial action they intend to take in order to comply with section 414.

PN20

Commissioner, I mentioned that I would touch on this issue of the word “sight” within the notice. So we receive a notice later about the word “sight”. Now, in our respectful submission, where there is something as serious as industrial action, we say that you need to look at the typographical error in the context of the notice as issued and the notice as issued says, “Use of all sight communication devices.” That is unambiguous. It is clear on its own wording. It can stand or fall. It has a meaning. That could be all sorts of things in a workplace. It’s not up to us to then go and take this notice and check it against the protected action ballot to see in fact whether this notice is consistent with the application that was made, the approval by the employees. We can take this notice on face value and it stands or falls by its drafting.

PN21

If it falls because there’s a typographical error about something that is unambiguous, in our submission, Commissioner, although that was cured by the ETU, pursuant to section 414 subsection (2) they are required to give us three clear days’ notice which they did not do in this circumstance. So they can cure a defect but the three-day notice period starts again and, why I say they can cure the defect, from my reading of the Act, Commissioner, there is no form of notice prescribed in the Act per se. There is a requirement to put the employer on notice about certain aspects set out in section 414 but there is nothing to prevent a union by amending a notice in whatever form it does. It could do it by letter. It could do it by email. It could do it by facsimile so long as they give the requisite three days’ notice which they have not done so that element of the industrial action fails for all purposes on that basis as well.

PN22

Commissioner, in our respectful submission, this industrial action is unprotected industrial action. It’s vague. It’s uncertain. It fails the requirements of section 414 subsection (6) and, in those circumstances, a section 418 order must issue. It’s our submission that the order should issue for three months. This is a site with significant history of unprotected industrial action. This is a site where there is a robust enterprise bargaining negotiation on foot and, in our respectful submission, three months is the appropriate time for an order to issue.

PN23

THE COMMISSIONER: What would be the purpose of an order for three months if the union simply withdrew the notice that they issued on 19 July, got rid of the vagaries and then reissued a new notice that addresses the issue of “sight” and addresses the issue of vagaries that you say and the opposites, if you like, in point - sorry, the heading, “An unlimited number of indefinite or periodic bans”? If they did that, the 418 order would have no effect.

PN24

MR FARR: I accept that, Commissioner. The primary issue in terms of motivation here, Commissioner, is the requirement that the employer must not pay strike pay.

PN25

THE COMMISSIONER: Right.

PN26

MR FARR: So once we have formed the view that it’s unprotected industrial action, we cannot pay any employee who is working pursuant to this order, even if it’s only a ban or a limitation, so the consequences of this notice and the consequences for their members is so significant - we haven’t introduced this by way of evidence but we put the union on notice that we considered it unprotected. We pressed the union on that issue and they stood resolute in their view that it was protected industrial action notwithstanding the consequences. So we’ve invited the union to withdraw its notice, to amend its notice and it hasn’t done so. So I do accept your position, Commissioner, as to what is the utility of a 418 application if that notice is withdrawn but the union has resolutely said that it will not and that it defends this form of wording and, in those circumstances where there is this issue, we say that the 418 order should issue.

PN27

THE COMMISSIONER: Okay, thanks, Mr Farr. Yes, Mr Reidy.

PN28

MR REIDY: Thank you, Commissioner. The applicant says, Commissioner, that our notice is misleading and vague and that it doesn’t understand or it can’t take defensive action on the basis that the information contained within that notice, specifically its argument, seems to be that because we have said that these bans can either be indefinite or periodic the company can’t properly take defensive action against the bans that we’ve imposed.

PN29

Now, these periodic bans, say for example if we were to impose periodic bans of one hour and for those bans to run consecutively, they could go on for an indefinite period of time. Likewise we could simply impose the bans on an indefinite period which by its definition means that there would be no end to it until we decided it comes to an end. In either case the company would be in the same situation. What seems to be the argument of the company is at ETU convenience because it would like to know if the bans are going to be indefinite or if they’re going to be periodic. That’s a real question here or the real issue for the company. It’s seeking information from us which we’re not required to give by a notice.

PN30

This is an issue that was dealt with in the decision, the Energy Australia decision where the full bench went through the relevant authorities on the matter and those authorities consistently came up with there needs to be a balance between the company being giving sufficient information for it to be able to take defensive action on the one hand but not being required to get so much information that the taking of the industrial action by our members is rendered nugatory because the company is able to know in all situations what we will be doing and that’s referred to in paragraph 27 of the Energy Australia decision. The full bench in that decision really does warn away from an over-legal approach being taken to notices because it’s not always feasible to be drafting notices and as is this case here. This is information that came to us through our organiser Mr Mooney and that was put on a notice. We don’t use that as an excuse because you don’t see that there is any deficiency in the notice. It provides the company with the information which it needs and that is that we may take indefinite bans or we may take periodic bans and it gives the nature of the bans that we’ll be taking.

PN31

Going to that, if you look at point 3 of the notice, the various types of industrial action which we propose to take, we’ve even gone to the trouble of saying with the site communication devices the ban will only apply from 10 am to 11.50 am each day. That’s not information which we believe we technically have to provide but we provided it to the company, provided additional information because we wanted to give them or put them in a position where they knew that. We didn’t want to create - be necessarily or deliberately vague but that doesn’t mean that the company should impose an obligation on us to provide more information still. It knows the types of bans that we can be taking.

PN32

Once again, it just goes to a matter of convenience for the company and they don’t seem to be able to provide much more detail on why the notice is deficient apart from this issue about their ability to take defensive action: if it was an indefinite ban, then they might call managers back from leave; if it was periodic bans, they may take different steps. That’s not something that should be a consideration for you, Commissioner. The way the company takes defensive action, the type of action that the company may take, is something for the company but all it needs to know is these are the types of action which may be taken.

PN33

THE COMMISSIONER: But that’s not exactly correct because you quote the United Energy Australia or Energy Australia decision, so does Mr Farr, and they quote in that decision Davids Distribution. Now, that dealt with section 170M05 but they did say in that David Distribution:

PN34

We think that section 170M05 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.

PN35

And then it goes on and gives some examples. So why wouldn’t that be part of the commission’s considerations?

PN36

MR REIDY: Sorry, Commissioner, maybe I overstated the point. The notification that we give to the company needs to be sufficient that the company is in a position to know what bans will be applied and the types of bans and what those types of bans will be, and I think in Davids Distribution they give the example of the company telling its suppliers that industrial action is being taken so that’s one form of defensive action, that there might be machinery that needs a few days to be shut down in order so it’s not damaged. In this case we’ve told them what the worst case scenario is. We will be imposing indefinite bans starting on 25 July and that the form of the bans will be this, this and this. That’s the information the company has.

PN37

And the company, we say, should take that as, at the worst case scenario, that’s what could happen, so we can either act that way or we can act some lesser way. That’s for them to decide but the thing is we’ve given them the information.

PN38

THE COMMISSIONER: Well, I’ve got to say I think O’Callaghan SDP was right in identifying the significance of the problem. It’s one thing to ask in a ballot one question - and he then goes to the issue of its application which is what Mr Farr goes to so the question is okay and it’s been deemed to be okay but it’s the application that causes the uncertainty and, again, look at Davids Distribution. So what difficulty would there be - and we deal with the issue of whether the order should go anyway in order to protect the interests of the employer on the issue of payment - what difficulty would there be to withdraw your notice and serve another one that takes away the vagaries and corrects any spelling mistakes, which I’m very surprised that Mr Mooney picked up but anyway - - -

PN39

MR REIDY: The difficulty for us, Commissioner, would be that our members would effectively be agreeing that they take an unprotected industrial action starting from last Thursday and that’s not something we’re willing to do because we went through - we didn’t go through the process of putting in an application, having an order made by you, Commissioner, having the vote conducted by the AEC, issuing a notice so that then we could take unprotected industrial action. The point was that we went through all of that so we had the immunity provided by the Act.

PN40

THE COMMISSIONER: But what if the commission says that you have and it issues the order?

PN41

MR REIDY: Well, either way we put the same as - on one side you’re telling us, Commissioner, this is a decision you’ve reached. On the other we’d be saying we agree that we’ve done the wrong thing.

PN42

THE COMMISSIONER: To me your argument seems to be a question of pride.

PN43

MR REIDY: Not at all, Commissioner. We believe the Energy Australia decision comes down on our side in this matter.

PN44

THE COMMISSIONER: Do what?

PN45

MR REIDY: Comes down on our side.

PN46

THE COMMISSIONER: Energy Australia decision?

PN47

MR REIDY: Yes, insomuch as it says the requirements of what’s provided to be in the notice, it says you can essentially pick up the questions that are in the ballot, put them into your notice but then add the start date for the industrial action, and we’ve done more than that. At least the preamble to the notice is in exactly the same terms as the valid application - - -

PN48

THE COMMISSIONER: No, but again that goes to the point that O’Callaghan SDP made. The question is one thing, the application is another.

PN49

MR REIDY: I suppose there’s a difference between the decision of O’Callaghan SDP and the full bench in Energy Australia where they say something else. We’re relying upon a full bench decision.

PN50

THE COMMISSIONER: What part of the full bench decision do you say endorses?

PN51

MR REIDY: If I take you to paragraph 48 of that decision, Commissioner, there the full bench is talking about requirements of section 437 of the Act which obviously is the question that’s in the original application 443(3) which is a notice that is in the ballot paper and then section 414(6) which is obviously the matter which is on today and it talks about consistency between the question that is asked, or the requirement, sorry, of each of those provisions. This is about halfway down and it says - - -

PN52

THE COMMISSIONER: Yes.

PN53

MR REIDY: I’ll leave you to read that, Commissioner.

PN54

THE COMMISSIONER: It’s all right. You can keep talking. I can do both.

PN55

MR REIDY: They say:

PN56

There is much to be said in our opinion for an argument that the detail of which is required when specifying the nature of the action as required by each section should be read consistently. If that is so, it seems to us that acceptance by the commission of question 4 in the protected action ballot order adequately specified the nature of the proposed industrial action. That will be taken then the use of the words in the section 414(6) notice may be adequate to comply with the requirements of this section. The only additional requirement will be to state the day on which the action would start -

PN57

and there was no issue in this appeal that the requirements had been satisfied. I note that it does say “may” but we say in this case we provided more information than was on the original notice and, in furtherance to this point, the full bench says it’s significant that under the old MO notices there were no secret ballots that were conducted. It was a whole different regime.

PN58

In this case we produce a ballot application which we sent to the company so they can have a look at the questions. The company has an opportunity to raise the matter with the commission if it believes the questions aren’t clear and then it goes out to the ballot on the basis of the order and, on that basis, if the company hasn’t opposed a question then the company has an understanding, it doesn’t have a problem, of the way the questions have been phrased and that’s what has occurred here. I don’t believe that the company objected to the form of words we used in our original application and the order made.

PN59

We say that there needs to be significant weight given to the right of our members to be able to take protective industrial action and that’s something the full bench in Energy Australia picked up on when they referred to another decision of Bissett C in the Berkley Challenge Pty Ltd t/as Spotless v United Voice, that she made that point, and that’s something that needs to be weighed up and considered by you, Commissioner, and the way that we’ve gone about things. We haven’t gone about things to take up the test of industrial action. This is simply a technical argument about whether or not our notice complies with the requirements of the Act which we say that it does.

PN60

The purpose of the notice - the notice serves its purpose. There’s sufficient information there for the company to simply say, “Well, yes, we understand the type of bans that are going to be applied here.” It’s disingenuous for the company to say that they don’t understand and, in any case, the best they can say is, “Well, we’re not sure if it’s indefinite or periodic and they’re mutually exclusive.” Well, they’re not mutually exclusive because you could take indefinite and definite bans. You can impose an indefinite ban on one day and then the next day impose a periodic ban for four hours if you wanted to.

PN61

They can’t run concurrently but it’s not beyond the realms that say the type of industrial action in point 1 could be an indefinite ban on one day and the type in point 2 could be a periodic ban. That’s up to us. What the company is after is something that is referred to the Energy Australia decision. It’s something that’s been raised in the Alcoa v AWU decision where the company simply requires more specifics on the industrial action that’s going to be taken and that’s no reason for you to find that our members have taken up protected industrial action because this notice is defective.

PN62

In regards to the use of the word sight - s-i-g-h-t - - -

PN63

THE COMMISSIONER: I’m going to say it looked perfectly good to me.

PN64

MR REIDY: Yes, if you say it out loud you’re fine. There has been a couple of decisions, in particular the Energy Australia decision at paragraph 22 of that decision and then at 28 the company stated the time industrial action would be taken and the company in that case said, “Well, look, we don’t know if you mean Australian eastern daylight savings time or market time,” whatever it was there. The commissioner in her decision, and it’s noted in the full bench decision, said, “That’s mischievous,” because it was clear what was meant.

PN65

Further and more significantly is a decision of - I’ll just hand up the decision of Chubb Security Services Ltd. It’s a decision of Bull C. Now, in that case, Commissioner, the CEPU had issued a notice and they’d actually put the wrong date in. They put - so this is a more significant matter actually stating the date when the industrial action would be taken. In the context it was obvious - the commissioner found it was obvious that it had simply put down the wrong date. They wrote Monday and they meant Tuesday because the date had actually past so the notice would’ve been redundant from the very beginning. Nonetheless, the commissioner took the view that at paragraph 28:

PN66

Having given notice that the industrial action was to commence on Monday, 19 November 2012, the only sensible conclusion to draw from a further reference to Monday, 20 November 2012 is that it should have read Tuesday, 20 November 2012.

PN67

Accordingly, the commissioner found that there was no defect with the notice because the only sensible conclusion to draw was they’d written the wrong date. In this case we’ve got a ballot order that was made. It wrote site - s-i-t-e - which the company was provided with and we have the actual ballot declaration which states the form of words that our members voted on and which they agreed to -
s-i-t-e once again. Then our notice turns up and it’s spelt slightly differently and the company says, “Well, we don’t know what you mean. We have no idea and we’ll jump on that and say your notice is defective.”

PN68

Nonetheless we picked up - we sent that on Friday, 19 July around about 2.30, 3 o’clock, and we sent an email at around about 8.52 the following Monday to say, “Look, we’ve sent you a notice. We’ve used the wrong word. This is the word that we meant,” just to clarify the issue,” and the company is now saying, “Well, you didn’t give us three days’ notice because we didn’t know what you meant by that because it doesn’t conform with the ballot application,” and so on. This is a ridiculous argument, Commissioner. It’s an obvious typographical error. That’s all it is. Bull C dealt with a more significant issue and he had no problem with the notice because he believed apply your commonsense and logic and you’ll get there, and that same approach should be taken here.

PN69

Just on that there was a decision of the Federal Court in Allied Brighton Cement, which I’ll hand up. In that case there was a fault in the notice sent by I think a few unions in a notice. I think they cut and pasted a notice and they all had the same error so they all ran into the same problem. The AWU, the AMWU and my own union were before the court. It’s a fault they’d noticed where I think the wrong date had been put in. Once again, that’s at paragraph number 8, Commissioner, there’s an error in the actual start date of the industrial action so it’s similar to the decision involving Bull C. In this case his Honour
von Doussa J found that that error, and this is paragraph 9. He says:

PN70

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.

PN71

That lines up with what Bull C found. We believe the same should apply here. It’s not as significant as a start date being wrong. It’s simply a typo which the company would have been well aware of despite the fact that they protested that they were not because it didn’t line up exactly with the word as it was written. Of course there would be outcome if our members were found to take unprotected industrial action on the basis of the word site being spelt wrong is in the context of everything that had come before that, Commissioner.

PN72

So just in summary, Commissioner, we do not believe that this is a case where our notice was vague or misleading as the applicant contends. We believe that the authorities line up with us, in particular the full bench in Energy Australia. What this seems to us is to be a case where the company is inconvenienced by our notice in the way that it’s written. That is the entire point of industrial action. It’s not to give a notice so every eventuality can be covered off by the company so it doesn’t actually suffer any damage by the industrial action and the point of industrial action has been noted in the authorities in the Energy Australia decision. It’s no secret that causing inconvenience is the point. So that’s the company’s response to it. The company could have taken response action itself but rather it will try and knock off our notice on spurious grounds.

PN73

On the second matter of the use of the word “sight”, well, our position is that’s completely ridiculous. The company was well aware of what was meant. They didn’t even raise the issue with us before we responded and told them, “Here’s some more information just in case you weren’t aware of the error and what it was actually supposed to be there,” so we’ve taken remedial measures, not that that was required, but we’ve done it and we don’t believe that this notice is in any way misleading or deceptive. It’s effective and you should not find it that way either, Commissioner, if the commission pleases.

PN74

THE COMMISSIONER: Thanks, Mr Reidy. Yes, Mr Farr.

PN75

MR FARR: Thank you, Commissioner, just a couple of small matters. Commissioner, you touched on the decision in Davids and the full bench extracted a number of paragraphs in its Energy Australia decision. If I take you to paragraph 37 which is actually the last of that paragraph extracts Davids on page 13 about halfway through. It extracts paragraph 88 of the Davids decision and it gives examples of how industrial action would be described and I quote:

PN76

It will be apparent we think it necessary and sufficient for parties to describe the intended action in ordinary industry English: for example, an indefinite strike of all employees; a lockout of all employees employed in the A.B. 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.

PN77

It’s clear the court in that instance giving some clear guidance as to the type of drafting that would go into an MO notice in that circumstance and it wasn’t dealing with this rolled-up question issue which we find ourselves dealing with now.

PN78

My friend took you to paragraph 48 of the decision of the full bench in the Energy decision about satisfying that if the section 437 protected action ballot has a question that is put to the employees, essentially the submission is that by putting that in your section 414 subsection (6) notice, then that would satisfy the requirements of section 414 subsection (6). It’s a little more complicated than that, in our submission, Commissioner, and the full bench does not decide that point. The effect of the submission, what the CFMEU is saying to the full bench is, “You should dismiss this appeal on the basis that the employer did not object to the question at the time,” and if the employer doesn’t object, then that should be essentially as far as the matter goes.

PN79

And my friend took you to the parts in the middle of paragraph 48 where the full bench rightfully acknowledges that use of those words in section 414 subsection (6) notice may be adequate to comply with the requirements of that section. Importantly, the full bench goes further at the end of that paragraph to say:

PN80

The appellant suggests that this is of some consequence but the argument, not having been put below and principally arising on appeal because of questions from the bench, was not developed further. We were not persuaded to rely upon this ground to dispose of the appeal. Whether this construction of the relevant sections of the Fair Work Act is correct is best left to another occasion when an opportunity arises for it to be fully addressed.

PN81

In our respectful submission, such an opportunity arises before this commission and, in that light, the commentary by O’Callaghan SDP in the ASC protected action ballot matter is of guidance to this commission where he wrestles, as per my previous submissions, Commissioner, he wrestles with this issue that it’s quite permissible to have a question as put but that doesn’t necessarily resolve the issue in regard to the section 414 subsection (6) notice and our submission is quite clear. The two are mutually exclusive; an indefinite ban, a periodic ban. We are entitled to know what form of industrial action is taking place. We don’t have to guess as to what that is and, where it is unclear, where it is vague, where it is uncertain, that does not meet the requirements of section 414 subsection (6). It comes down to simply we’re entitled to know what the industrial action is and the notice should comply with that.

PN82

In respect about the issue which my friend raised in respect of the site, Bull C did deal with this issue in respect of a typographical error of the using of the word Monday rather than Tuesday but he goes further in paragraph 29 and beyond the quote my friend gave you to say:

PN83

Had the notice not already referred to industrial action being taken on Monday, 19 November 2012, Chubb’s argument would have had more force in alleging confusion with the reference to Monday, 20 November 2012.

PN84

It goes further, paragraph 31:

PN85

I’m not persuaded, having regard to the intent of the legislation which is to provide the employer with three clear working days’ notice of the impending protected industrial action, that the notice provider has not achieved this despite the acknowledged typographical error by the author.

PN86

Our submission is simply this, Commissioner, the term sight - s-i-g-h-t - communication device is clear on its face. It is unambiguous. We’re entitled to rely on that notice and it’s not for us to raise that this is a matter that is not consistent with the protected action ballot. On its face we have clear understanding that this is industrial action that’s intended to take place. Now, the union the following Monday by email, so that is 22 July, clarifies what they intend that to mean and that does not give us three clear days’ notice before the commencement of that industrial action and therefore they have not complied with section 414 subsection (2) and that whole industrial action in respect of ban number 3 of the notice on 19 July is unprotected on that basis. Unless I can be of any further assistance?

PN87

THE COMMISSIONER: No, thanks, Mr Farr. All right, well, it’s an application under section 418 in which the commission must determine basically straightaway. The commission is not inclined to issue the 418 order on the following grounds. One is I could understand the argument of the company if the notice provided by the union said, “An unlimited number of indefinite and periodic bans,” but it doesn’t say that . It says, “indefinite or it can be one or the other”. I note the point made by Mr Reidy that you can have some periodic bans that go indefinitely. I don’t accept that there’s any vagary in that whatsoever.

PN88

Secondly, in regard to the third point, “use of all sight communication devices,” it’s very clear in the commission’s mind that the parties understand very clearly what is meant by the term “sight” although spelt incorrectly. It has, in my view, the same application and the parties know that very well. There are no vagaries in that and I’m satisfied that the notice does meet the requirements of section 414 subsection (6). That says, “A notice given under this section must specify the nature of the action and the day on which it will start.” It specifies three points of action and the date in which that all started is from 7 am on 25 July 2013.

PN89

Therefore the commission will reject the application for an order under section 418 and we’ll stand adjourned. Thank you.

<ADJOURNED INDEFINITELY [10.20AM]