Case: Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108 ; (1999) 91 FCR 463
Outcome: referred to
It is submitted by United Collieries that use of the phrase 'the action' in s 478(1)(d) refers to a specific instance of industrial action. The phrase is in the singular and the noun 'action' is governed by the definite article. It is used in contradistinction with the more general phrase 'industrial action'. It is submitted that this construction is assisted by consideration of s 441 dealing with the notification of industrial action. The phrase in that section 'the action' relates clearly to particular instances of industrial action rather than a general description. Reference was made to a passage from Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108 ; (1999) 91 FCR 463, per Wilcox and Cooper JJ with whom Burchett J agreed (at [85]): 'The subsection does not use the term "industrial action". Rather it uses the definite article, in speaking of " the intended action". It seems to us this implies a measure of particularity greater than would be conveyed merely by quoting the words of one of the paragraphs in the definition.' It is submitted that the same meaning should be attached to similar phrases in sections which appear in the same Part of the Act. It is submitted that ss 438 , 444 and 447 provide other examples where Parliament used the phrase 'the action' to refer to a specific instance of industrial action. Reference is also made to the definite article in s 452(1)(a) to make a similar point. 18 United Collieries also submits that the ability to extend the 30 day period referred to in s 478(1)(d) provides further support to its interpretation of the section (see s 478(3) and s 478(4)). It is submitted that, if the Union's interpretation of s 478(1)(d) is correct, s 478(3) and s 478(4) will have little utility. Support is also claimed from the examples of protected action ballots contained at the end of s 434. 19 United Collieries refers to the Explanatory Memorandum, the relevant portion of which was as follows: 'This section would establish that the object of a new Division is to provide employees with access to a process of fair and democratic secret ballots to determine whether protected industrial action should be taken. The provisions are designed to be faciltative (i.e. to provide the means for accessing protected action) not prohibitive (i.e. to outline the circumstances in which such action is not available).' 23 United Collieries attempted to outflank this obvious difficulty by accepting that there could be a predetermined, but specific, series of actions on particular dates or at particular times extending beyond the 30 day period. I can see no distinction in principle between employees authorising 24 hour stoppages after the 30 day period on predetermined days (accepted to be valid), compared with 24 hour stoppages after the 30 day period at times to be determined as the bargaining unfolds. As pointed out in Davids Distribution Pty Ltd v National Union of Workers (at [84]): '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 ... and changing circumstances.' There is some substance to the Union's contention that the construction favoured by United Collieries might drive more draconian mandatory industrial action than might otherwise be the case. 24 The gravamen of United Collieries' complaint is that, as the description of industrial action specified in each of the relevant questions on the ballot leaves open when industrial action should take place, Union officials will be given a role which is not provided by the legislation and which is inconsistent with the facilitation of decision making by the employees actually affected. The exclusion of Union officials from the process in that way is not spelled out in the legislation or in the extrinsic material. If the affected employees vote in favour of a form of industrial action which gives a discretion to Union officials, then industrial democracy has worked with that result. 25 The Act contemplates that negotiations during the bargaining period will be a power struggle with no holds barred, within limits. The secret ballot provisions are not intended to alter the balance of power in favour of employers against employees. They are to assist in ensuring that power is exercised by the affected employees. 27 I do not regard the decision or the reasoning in Davids Distribution Pty Ltd v National Union of Workers to be contrary to this conclusion. The particular question in that case concerned the provisions of another division of Pt 9 of the Act with a different focus to s 478 . The same may be said of the other examples given by United Collieries. The object of the Division and the passage referred to in the Explanatory Memorandum do not point to any different conclusion. 28 It follows that the action described in each of questions 1, 2 and 5 was commenced in the 30 day period beginning on the date of the declaration of the results of the ballot. The continuation of that action during the bargaining period is not prohibited by s 478(1)(d). The application must therefore be dismissed. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 14 July 2006 Counsel for the Applicant: Mr PM Kite SC Solicitor for the Applicant: Freehills Counsel for the Respondent: Mr SC Crawshaw SC with Mr AM Slevin Solicitor for the Respondent: Construction, Forestry, Mining and Energy Union Date of Hearing: 6 July 2006 Date of Judgment: 14 July 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/904.html