Case note: Letters of thanks, letters from banks*

Australian Postal Corporation v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2009] FWAFB 599 (12 October 2009).

A Full Bench of Fair Work Australia comprising Senior Deputy President Acton, Deputy President Hamilton and Commissioner Blair have for the first time by a Full Bench, made a determination that an employer is sufficiently interested in an application for a protected action ballot made under the Fair Work Act 2009 (the Act) and that it can be heard not only below, but also on appeal.

This case dealt with the appeal against Orders, which had been made by Senior Deputy President Drake, which she issued providing for a protected action ballot for employees of Australia Post being members of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU).

The CEPU had made applications pursuant to s 437 of the Act for protected action ballots to be conducted.  The Act provides for immunity for industrial action, should it be protected action after the holding of a  sanctioned  ballot.  At common law, strike action is unlawful and can be either in breach of contract (see Gapes v Commercial Bank of Australia Ltd (1980) 41 FLR 27 at 33) or a tort.  The encouragement of strike action can be a tort under the rubric of an economic tort of conspiracy, intimidation or interference with contractual relations (see generally Macken’s  Law of Employment, 6^th  Edition,Thomson Reuters, 2009, Ch 13 “Industrial Torts” and the commentary therein regarding a recent House of Lords’ trilogy of cases being Douglas v Hello! Ltd [2005] EWCA Civ 595; Mainstream Properties Ltd v Young [2007] UKHL 21; OBG Ltd v Allen [2008] 1 AC 1). 

The decision at first instance had permitted Australia Post to be heard in relation to one aspect of s 437, that is whether the CEPU had been or was still genuinely trying to reach an agreement with Australia Post.  However, the employer was not permitted to be heard in relation to other matters (at [20]).  The Full Bench said that as a matter of natural justice or procedural fairness, Australia Post, as an employer, had a right to be heard, not only with respect to the matter in which it was permitted to be heard, but also, whether the applications were lawfully made under s 437 of the Act (at [21]). The real issue in relation to the proceedings before the Tribunal was the CEPU’s claim in relation to the use of contractors (at [51]). 

Permitted matters under the Act dealt with the employer/employee relationship.  The Full Bench referred to the decision of Justice French in Wesfarmers Premier Coal Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (No 2) (2004) 138 IR 362 at [109] in which it was held that a claim about contractors, either restricting or qualifying the employer’s right to use them, were not matters pertaining to the employment relationship. As a consequence, a jurisdictional prerequisite for the approval of a protected action ballot under s 437 had to be one pertaining to the employer/employee relationship.  Accordingly, the decision below was in error and was quashed (at [61]).

Further, given the authority in the Wesfarmers case, the Full Bench found that the CEPU could not have reasonably believed the claim in respect of contractors, which it had been pursuing, was a statutorily permitted matter, and consequently the CEPU could not therefore be genuinely trying to reach an agreement.

This case provides an important direction for applications such as this and allows the employer to be involved by way of submissions and if necessary, evidence concerning such ballots seeking protected action for industrial disputes.

*Night Mail by W.H. Auden