Case: NMHG Distribution Pty Ltd t/as Yale Asia Pacific v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 104 IR 158
Outcome: discussed
After argument, the applicant referred the Court, with leave, to the Commission's decision in NMHG Distribution Pty Ltd t/as Yale Asia Pacific v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 104 IR 158 (" NMHG "). This was an appeal to the Full Bench of the Commission, which raised the question "whether a ban imposed by the AMWU through its delegates employed by CUB at the Abbotsford plant on the performance of work by Yale employees at that plant [was] capable of coming within the meaning of the definition of industrial action in s 4(1) of the WR Act ". As to this the Commission said (at 160): [I]t is necessary to examine whether the ban is capable of constituting 'a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work' within the meaning of those words in pars (b) and (c) of the definition ... [I]n the Commissioner's view the action alleged could not constitute industrial action because it did not relate to the work of the delegates themselves, but to the work of the Yale employees. After referring to Davids and Giudice , the Commission said (at 161-2): Whilst these decisions provide some support for the construction of the definition advanced by the AMWU, in each of the cases referred to the Court was considering whether picketing was industrial action for the purposes of the definition. It follows that neither case constitutes binding authority on the question which arises in this case. Furthermore in [Giudice] the relevant passage was clearly not an integral part of the court's reasons for its decision, while in Davids the court based its decision for the most part on indications to be found in various sections of the Act that the legislature did not intend to include picketing in the statutory concept of industrial action ... This case is not concerned with picketing. In this case employees of one employer and their union ... placed bans on the performance of work by employees of another employer at the first employer's premises in circumstances where the employees of the second employer normally perform such work at those premises. ... As a matter of ordinary language, a prohibition by employees of CUB (and their union) on Yale employees carrying out work on the CUB premises when the Yale employees normally perform work on those premises can be described as a 'ban ... on the performance of work, or on acceptance for or offering for work' within the terms of pars (b) and (c) of the definition. There is no indication in the objects of the Act, in the objects of Pt VI or anywhere else in the Act that the legislature intended to exclude such conduct from the definition. We can see no basis for limiting the ordinary meaning of 'ban' where it appears in pars (b) and (c) of the definition to a ban imposed by employees in relation to their own work. 49 Of course, as the respondents noted, NMHG is not binding on this Court. It seems probable, however, that neither in Davids nor in Giudice was the Full Court considering the kind of situation that arose in NMHG . This supports the proposition for which the applicants contend that the effect of these two decisions must be assessed having regard to the context with which each was concerned. Further, it is plainly correct to say, as NMHG does, that the observation of the Full Court in Giudice was obiter dictum. The status of the observations in Davids is less clear, but, plainly enough, as already noted, the focus of Davids was on picketing. Accordingly, the observations in Davids on the scope of the definition of "industrial action" in s 4(1) of the WR Act are to be considered in this light. Furthermore, it is to be borne in mind that the Full Court in each case was not concerned with the BCII Act but with the WR Act , being different though related legislation. Whilst I must take such guidance from Davids and Giudice as I can, they provide no clear and definitive answer to the question whether or not the words "a ban, limitation or restriction on the performance of building work" in paras (b) and (c) of the definition of "building industrial action" in s 36(1) of the BCII Act refer to a ban, limitation, or restriction imposed only by employees, or can extend to union action. 51 Reference to s 3(1) of the BCII Act discloses that its main object is "to provide an improved workplace relations framework for building work to ensure that building work is carried out fairly, efficiently and productively for the benefit of all building industry participants". The BCII Act provides, in s 3(2) , that this object is to be achieved in numerous ways, including by "ensuring that building industry participants are accountable for their unlawful conduct". In the context of this Act, the CFMEU is undoubtedly a building industry participant. Further, s 38 of the BCII Act is, plainly enough, concerned with preventing unlawful industrial action. Paragraphs (b) and (c) of the definition of "building industrial action" in terms contain no limitation of the kind for which the respondents contend. The expression "a ban, limitation or restriction on the performance of building work" in paras (b) and (c) may as naturally comprehend that which is imposed by a union as by employees. On its face, the expression is apt to cover the imposition of bans, limitations or restrictions by unions, employees to whose work the prohibitions and restrictions relate and, depending on the particular circumstances, to other persons (see, e.g., NMHG ). There is little, if anything, in para (b) or (c) of the definition to indicate that the Parliament intended that the expression should apply only to employees in respect of their work and not extend to other building industry participants, such as unions. Moreover, the main object of the BCII Act is apparently better promoted by a wide interpretation as opposed to the narrower one for which the respondents contend. Absent any countervailing consideration, I would therefore adopt it: see Acts Interpretation Act 1901 (Cth), s 15AA. 52 There is nothing else in the BCII Act that would indicate that these paragraphs were intended to be limited in the way the respondents contend. Indeed, other provisions in the BCII Act support the more natural construction for which the applicant contends. The definition of "constitutionally-connected action" in s 36(1) of the BCII Act (set out in [9] above) contemplates that unions (being "organisations" within the meaning of para (a) of the definition of "constitutionally-connected action") may take "building industrial action". If the expression "a ban, limitation or restriction on the performance of building work" in paras (b) and (c) of the definition of "building industrial action" refer only to that which is imposed by employees in respect of their work, and cannot refer to a prohibition or restriction on the performance of work imposed by a union, then it is unlikely that union action could ever amount to "building industrial action" (for which the union could be held responsible under s 38). This would be the case notwithstanding that the action was "constitutionally-connected action", being "action taken by an organisation", and otherwise satisfied s 37 of the BCII Act . This is because paras (a) and (d), being the other paragraphs of the definition of "building industrial action" in s 36(1) , in terms most naturally apply to action by employees, rather than other persons or entities. As noted previously, such a construction would not apparently best promote the main object of the BCII Act . 53 The respondents sought to answer this by reference to s 48(2) of the BCII Act , which provides that a person who is involved in a contravention of a civil penalty provision such as s 38 is to be treated as having contravened the provision. The applicant submitted, however, that the drafting of ss 36 to 38 "contemplate[d] that a trade union may contravene s 38 of the BCII Act without the need to call in aid" s 48. The effect of s 48(2) is that, once a person has contravened s 38 , another person, "who is involved in [the] contravention" (within s 48(2)) is treated as having also contravened s 38 , without there being a need to satisfy the requirements of s 37 of the BCII Act . Before this liability can arise, however, there must be a principal contravention of s 38 , which satisfies the requirements of s 37 (including the existence of "constitutionally-connected action"). I accept the applicant's submission that the legislative drafting of ss 37 and 38 , as amplified by the definitions in s 36 , show that the Parliament contemplated that a trade union might contravene s 38 of the BCII Act , independently of s 48(2) of the BCII Act .