Employee notice may be given 'up to an instant' before lockout begins

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Employee notice may be given 'up to an instant' before lockout begins

The Federal Court has backed BHP Billiton mine operator Henry Walker Eltin’s last minute notice of a lockout to unions and employees saying under federal legislation the 'exigencies of ongoing industrial disputation may justify a rapid response by way of lockout action at short notice.'

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The Federal Court has backed BHP Billiton mine operator Henry Walker Eltin’s last minute notice of a lockout to unions and employees saying under federal legislation the 'exigencies of ongoing industrial disputation may justify a rapid response by way of lockout action at short notice.'

Background

Henry Walker Eltin Contracting Pty Ltd (HWE), which operates the WA Yandi Iron Ore mine under contract for BHP Billiton Iron Ore Limited, and the unions covering its employees at the mine site have been negotiating a new certified agreement since March this year. Negotiations broke down and industrial action ensued in July. In response to that industrial action, HWE imposed a lockout on its employees on August 1.

The two unions concerned, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and the Australian Workers’ Union (AWU) took action against HWE alleging that its lockout was in breach of the Workplace Relations Act 1996 because it did not comply with notice requirements. HWE said the lockout was protected action under the Act.

The court heard that the lockout was in response to industrial action by the two unions and their members. In addition to action carried out within the scope of protected action notices lodged with the AIRC, HWE employees set up ongoing pickets on access roads to the Yandi mine site on 25 July. On the afternoon of Saturday 31 July, management decided that HWE would institute a lockout of employees the following day at the change of shift in the morning.

HWE management told the court it had received reports of the sabotage of equipment prior to the stop-work and picketing on 25, 26 and 27 July. HWE was concerned that if it were to give notice of the proposed lockout while the employees were still at work, some employees would sabotage equipment and possibly cause a serious accident. It was also concerned that if employees were served with notice while they were at work they could refuse to leave the mine site when the lockout started. For this reason, it instructed that the lockout notices be served at the change of shift.

Notices in issue

Notices directed to the AMWU and the AWU were to be delivered to the unions’ Perth offices by HWE’s security firm. Neither office was attended when the security guard first went to the offices at 5pm on the Saturday evening and he could not locate any after-hours telephone numbers for the unions. Consequently, he went back the next morning at 5am and fixed a copy of the notice to each union’s door and also sent faxes to the secretary of each union. Copies were sent to the unions’ national offices at about 5.30am.

Personalised notices were prepared for each day-shift employee and were given out at the muster point where employees waited for transport from the accommodation village to the mine site. The company had placed a notice at the muster point stating that there would be a meeting at 5.30am. There were approximately 90 notices to be served and, though there was some debate over when the hand out began and finished, the court accepted HWE’s evidence that service started at about 5.20am.

Findings

Justice French agreed the purpose of the lockout was either to respond to industrial action or to advance HWE’s proposals and so was within the purposes for which protected lockout action could be taken under s170ML(3) of the Workplace Relations Act 1996.

On the question of whether requisite notice was given to the unions, he said that while the section prescribes a minimum of three days’ written notice, the minimum period does not apply if the lockout is in response to, and takes place after the start of, industrial action organised or engaged in by the relevant union (s 170MO(3)(a)):

'This recognises that the exigencies of ongoing industrial disputation may justify a rapid response by way of lockout action at short notice … By the notice requirement the Act imposes upon the dynamics of the bargaining period industrial disputation and action, rules of engagement that the parties are required to define and state to each other.'

Justice French said that in this case the notice requirement was met in so far as the unions were concerned: 'Even if the Act is to be construed as implying a requirement that efforts be made to give notice a reasonable time prior to the lockout it cannot be said in this case that [the security guard] could have done anything more than he did apart, perhaps, from ringing every J Ferguson and T Daly in the White Pages to see if he could contact the State Secretaries of the unions. There is no evidence that it would have made any difference to the unions’ awareness of the commencement of the lockout if he had affixed the notices to the doors of their State offices the night before, on 31 July.'

He also agreed that the notices of the lockout given to HWE’s morning shift employees at the muster point at Yandi Village were given prior to the commencement of the lockout even if some of them were not physically handed to the employees until 5.40am or 5.45am: 'In a practical sense the notice to each particular employee signalled the commencement of the lockout in respect of that employee. The company had posted a notice at the muster point calling a meeting. That meeting was for the purpose of handing out the notices. It preceded any possibility of movement to the work site and logically preceded the commencement of the lockout.'

Justice French interpreted the notice provisions of the Act to mean the company could notify employees 'up to an instant before the lockout actually commenced.'

Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union v Henry Walker El [2004] FCA 1274 (30 September 2004).

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