Case: Davids Distribution Pty Ltd v NUW [1999] FCA 1108 ; (1999) 91 FCR 463
Outcome: referred to
This, the applicant said, was because in order to comply with s 441(6) of the Act a notice must describe the nature of the industrial action with sufficient particularity to enable an employer to take appropriate defensive action: Davids Distribution Pty Ltd v NUW [1999] FCA 1108 ; (1999) 91 FCR 463 at 494-5. 80 There are, according to the applicant, two difficulties with the Protected Action Notice. Firstly, the Notice of Action states: The employees to whom this notice relates are those employees of CSBP Limited who are members of the LHMU, who would be subject to the proposed collective agreement dealt with in bargaining period BP2007/8 and work as process technicians. 81 The applicant contends that it is ambiguous as to whether some or all of the process technicians, who are members of the respondent, are intended to take the threatened industrial action. 87 The applicant referred to Adelaide Brighton Cement v AWU [2002] FCA 601 , when faced with similar issues, von Doussa J, after considering Davids Distribution noted at [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. In that case, as here, the employer operated 12 hour day and night shifts and was left not knowing at what time on what day it would need to allocate labour to maintain its operations. His Honour found there was a serious question to be tried that the notice of industrial action failed to meet the requirements of s 170MO(5) (now 441 (6) of the Act ). 92 I am satisfied that there is a serious question to be tried that the Protected Action Notice does not adequately state the nature of the intended action and was therefore not a valid notice. In Davids Distribution Pty Ltd v NUW , Wilcox and Cooper JJ (with whom Burchett J agreed on this point) said of then s 170MO(5), which was in the same terms as s 441(6) of the Act : 84. . . . Parliament did not indicate what degree of specificity it intended by the term "nature of the intended action". To interpret this term, on the one extreme, as requiring no more than an indication of industrial action, as argued by NUW, would be significantly to devalue s 170MO(5); the notice would provide little information. To interpret it, on the other extreme, as requiring precise details of every future act or omission would be to impose on the giver of a notice an obligation almost impossible to fulfil. Industrial disputes are dynamic affairs. Decisions as to future steps often need to be made at short notice, sometimes in response to actions of the opposing party or other people, including governments, and changing circumstances. It would be a major, and unrealistic, constraint on industrial action to require a party to specify, three clear working days in advance, exactly what steps it would take. An unduly demanding interpretation of s 170MO(5) would seriously compromise the scheme of Div 8 of Pt VIB of the Act ; it would be difficult for a party to an industrial dispute to obtain the protection contemplated by the Division . ... 87. 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. 93 The appropriate defensive action referred to by von Doussa J in Davids Distribution Pty Ltd included, by way of example, the shutting down of a sophisticated item of equipment, although in the context of potential damage to the equipment if precipitately shut down. In this case, whatever be the consideration concerning damage to the plant, there are very substantial safety issues concerned both with the shutting down of the plant safely but also in monitoring the plant whilst it is shut down: see the Woodside Petroleum and Burswood Resort cases referred to above. Arguably the Protected Action Notice should have specified the Process Technicians, if any, who would be available for safety duties during the proposed period of the industrial action. Whilst, at the hearing, this safety issue was resolved, by agreement, that fact does not assist the respondent in relation to the question of the efficacy of the Protected Action Notice: a question which falls to be considered in light of the content of the Notice, unaffected by the agreement reached at the hearing before me.