Should a lockout notice specify duration?

Cases

Should a lockout notice specify duration?

A judge of the federal Court has determined that there existed a serious question to be tried as to whether an employer's lockout notice was valid or effective because it did not state the duration of the lockout.

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A judge of the federal Court has determined that there existed a serious question to be tried as to whether an employer's lockout notice was valid or effective because it did not state the duration of the lockout.

In Automotive Food Metals Engineering Printing & Kindred Industries Union v ACI Mould Manufacturing [1999] FCA 1859Justice Goldberg issued an injunction sought by the union staying the operation of a lockout issued by the company. The test for issuing an injunction is whether there is a serious question to be tried and if so, whether the balance of convenience favours issuing the injunction.

The company's notice advised that it was going to lockout identified employees, the notice specified the time the lock out would commence for each of the four shifts at the Box Hill plant and the fact that employees would not be paid during the time they were locked out. The notice did not specify the duration of the lockout.

Section 170MO(5) of the Workplace Relations Act 1996requires that notice of intended industrial action (such as a lockout) must state the nature of the intended action and the day when it will begin. His Honour was not persuaded that the requirement under s 170MO(5) implying that Parliament did not intend there should be a statement about the duration of the lockout solved the question.

The union's application was before the Court on 24 December and in the short time available his Honour could not determine the matter. He drew upon an earlier judgment finding that a lockout notice that did not specify the commencement of the lock out was defective. He stated: 

The issue was touched on by the Industrial Relations Court in passing in Lennie v Hawkes (Marshall J, 4 October 1996, unreported), where at 22 Marshall J said in the context of considering a lockout notice:

It must be unambiguously clear to employees that they are prevented from performing work during a certain, ascertainable, period of time.

The notice which his Honour had before him was a notice which he ultimately found to be ambiguous because it did not specify the date when the lockout was intended to commence or was in fact to commence. 

The union advanced a number of other matters which his Honour found were not serious questions to be tried, but, on the basis of his finding regarding the duration of the lockout period, he ordered the company not to implement its lockout.

 
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