Federated Engine Drivers' and Firemens' Association of Australasia Queensland Branch, Union of Employees (Jones) v Mackay City Council; Federated Engine Drivers' and Firemens' Association of Australasia Queensland Branch, Union of Employees (Senini) v Mackay City Council; Federated Engine Drivers' and Firemens' Association of Australasia Queensland Branch, Union of Employees (Callaghan) v Mackay City Council; The Australian Workers' Union of Employees, Queensland (Sologinkin) v Mackay City Council [2006] QIRC 42 (2006) 181 QGIG 477

[Extract from Queensland Government Industrial Gazette, dated 31 March, 2006, Vol. 181, No .13, page 477-492] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 278 recovery of unpaid wages Federated Engine Drivers' and Firemens' Association of Australasia Queensland Branch, Union of Employees (Donald Jones) AND Mackay City Council (B/2005/1213) Federated Engine Drivers' and Firemens' Association of Australasia Queensland Branch, Union of Employees (Noel Senini) AND Mackay City Council (B/2005/1214) Federated Engine Drivers' and Firemens' Association of Australasia Queensland Branch, Union of Employees (Mark Callaghan) AND Mackay City Council (B/2005/1225) The Australian Workers' Union of Employees, Queensland (Paul Sologinkin) AND Mackay City Council (B/2005/1248) VICE PRESIDENT LINNANE 17 March 2006 Application to recover unpaid wages - Employees taking protected industrial action involving partial performance of duties - Employer made it clear to most employees that performance of work would not be accepted unless prepared to carry out full duties - Unions argue that employer's action constituted a "stand down" or "lockout" of employees - Held that where employer advised employees that they would not accept part performance of duties there was no "stand down" or "lockout" of employees - Employer within their right not to accept partial performance of duties - Where employer failed to advise employee that full performance of his duties was required then employer required to pay for day - Industrial Relations Act 1999 s. 278. DECISION [1] This decision relates to the following four separate applications: (a) B/2005/1213 - an application by the Federated Engine Drivers' and Firemens' Association of Australasia Queensland Branch, Union of Employees (FEDFA) in respect of Donald Jones, a plant operator, for recovery of unpaid wages in the amount of $131.92; (b) B/2005/1214 - an application by the FEDFA in respect of Noel Senini, plant operator, for recovery of unpaid wages in the amount of $121.76; (c) B/2005/1225 - an application by the FEDFA in respect of Mark Callaghan, plant operator, for recovery of unpaid wages in the amount of $126.80; and (d) B/2005/1248 - an application by The Australian Workers' Union of Employees, Queensland (AWU) in respect of Paul Sologinkin, grave digger, for recovery of unpaid wages in the amount of $292.00. [2] Each of the individual employees was employed by the Mackay City Council (Council) at the relevant time. The quantum of the claims is not in issue. Mr Jones, Mr Senini, Mr Callaghan and Mr Sologinkin were employed pursuant to the terms of the Mackay City Council State Award - Certified Agreement (No. CA339 of 2004) and the Local Government Employees' (Excluding Brisbane City Council) Award - State 2003. [3] In 2003 the FEDFA and AWU were engaged, along with other industrial organisations of employees, in enterprise bargaining negotiations with the Council. On 6 November 2003 the FEDFA and the AWU forwarded to the Council notices in accordance with s. 175 of the Industrial Relations Act 1999 (Act) advising that employees intended to engage in protected industrial action pursuant to s. 174 of the Act. On 12 November 2003 there was a stop work meeting of employees involved in the enterprise bargaining negotiations at the Council administration grounds. Following that meeting the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (AMEPKU), on behalf of other industrial organisations of employees including the FEDFA and the AWU, faxed correspondence to the Council which relevantly provided as follows: "Please be advised that pursuant to our correspondence of November 6 in relation to our Notice of Industrial Action, the industrial action will include:  a ban on all communication via radio and telephone excepting emergencies or instances that may compromise health and safety; and  a return to the depot for all meal breaks, rest breaks and finish times. -- 1 of 17 -- 2 This will be effective immediately.". [4] Following receipt of this correspondence the Chief Executive Officer of the Council, Kenneth Gouldthorp, received information from the Executive Manager of Infrastructure Services, Stuart Holley, that there had been some interference with the Council's two-way radio and mobile telephones which involved staff failing to answer mobile telephone calls and two-way radio calls and there was evidence of "clicking". "Clicking" occurs when another operator clicks their two-way radio when a call is attempted to be made with the consequence being that the original operator's call cannot be properly transmitted. Council officers had apparently experienced this "clicking" during industrial action by officers at an earlier time not connected with this industrial action. [5] Mr Gouldthorp formed the view that the bans, including the "clicking", were compromising the ability of Council to respond to emergencies and were also compromising workplace health and safety. There was no evidence that "clicking" formed part of the industrial action that was advised to the Council in the AMEPKU correspondence of 12 November 2003 or was part of any resolution passed by members of either the FEDFA or the AWU at the meeting on 12 November 2003. [6] Mr Gouldthorp then asked Mr Holley to further investigate the matter. Mr Holley then made a request on the two- way radio to the effect "would any operators who can receive this message please respond". Mr Holley identified himself through use of the base number when making the request. Mr Holley received only one attempted response, the transmission of which was interfered with by the "clicking" of another operator. The outcome of this investigation was reported to Mr Gouldthorp on the afternoon of 12 November 2003. [7] Mr Gouldthorp then responded to the correspondence received from the AMEPKU by sending correspondence to, inter alia, the FEDFA and the AWU dated 12 November 2003 in the following terms: "Further to your facsimile of 6 November 2003 notifying of your intent to undertake Industrial Action and despite Council's response of 10 November 2003, it is understood that a ban has been implemented on the use of two-way radio and mobile phones. Council is not prepared to tolerate the refusal to use two-way radios or to interfere with the use of the two- way radios by others because: 1. It represents an unacceptable Workplace Health & Safety Risk to employees and others. 2. Use of two-way radios is provided to enable efficient and effective work directions to be provided to employees. As part of work required operating plant and machinery fitted with two-way radios, it is a requirement that operators of that plant and equipment act in accordance with the work instructions provided by two-way radios. Refusal to use two-way radios in accordance with that requirement will result in plant and equipment being garaged or depoted with the operators' pay being docked until operators are prepared to operate plant in accordance with these lawful directions.". [8] This correspondence must have been faxed to the industrial organisations on 12 November 2003 because the Mackay Secretary of the Queensland Council of Unions - Mackay responded on 12 November 2003 with correspondence relevantly providing as follows: "The monthly meeting of the Queensland Council of Unions held today has discussed the matter of Council's threatened action in response to the Unions' lawful protected action. The Q.C.U. Mackay condemns the heavy handed tactics adopted by yourself in this matter and finds it shameful and inappropriate that these low tactics be used against Mackay's Council workers. The Q.C.U. Mackay urges you to withdraw from your position immediately and urgently begin discussions with the Unions to bring about a resolution...". [9] Mr Gouldthorp then caused to be prepared an internal memorandum addressed to "All state award employees having access to two-way radios and mobile phones". The memorandum was in the following terms: -- 2 of 17 -- 3 "In relation to the ban being imposed on the use of two-way radios and mobile phones I am writing to advise as follows: Council is not prepared to tolerate the refusal to use two-way radios or mobile phones because: 1. It represents an unacceptable Workplace Health & Safety Risk to employees and others. 2. Use of two-way radios and mobile phones are provided to enable efficient and effective work directions to be provided to employees. As part of work required to operate plant and machinery fitted with two-way radios, it is a requirement that operators of that plant and equipment act in accordance with the work instructions provided by two-way radios. Refusal to use two-way radios in accordance with that requirement will result in plant and equipment being garaged or depoted with the operators' pay being docked until operators are prepared to operate plant in accordance with these lawful directions.". [10] That memorandum was then distributed by Council officers at meetings of employees on 13 and 14 November 2003 although it would appear that not all employees received copies of the memorandum. [11] On the afternoon of 12 November 2003, Mr Gouldthorp also prepared a script to be read out to staff at the Council depots on the following day. Mr Gouldthorp made arrangements for he and Mr McKinlay to address employees at the Bedford Road Depot and for Mr Holley to address employees at the Ness Street Depot on the morning of 13 November 2003. [12] Meeting of 13 November 2003: As Council employees attended for work on 13 November 2003 at the Bedford Road Depot some employees were handed the memorandum referred to earlier. In addition to the Council employees, Gary Flack, an organiser with the FEDFA, and Darren Trask, an organiser with the AMEPKU, were also in attendance at the Bedford Road Depot on this morning. The employees assembled in front of the administration building. There were some employees who were not taking part in the work bans who did not assemble. Mr Gouldthorp and Mr McKinlay stood on the veranda of the administration building and, according to the evidence of Mr Gouldthorp, Daniel McKinlay, the Council's Executive Manager, Financial and Information Services, and David Walker, the Council's Manager of Parks and Recreation, Mr Gouldthorp read from the following script prepared on the previous afternoon: "Council is aware that a ban has been placed on the use of two-way radios and mobile phones. Council is not prepared to tolerate the refusal to use two-way radios or mobile phones because: 1. It represents an unacceptable Workplace Health & Safety Risk to employees and others. 2. Use of two-way radios and mobile phones are provided to enable proficient and effective work directions to be provided to employees. As part of work required to operate plant and machinery fitted with two-way radios, it is a requirement that operators of that plant and equipment act in accordance with the work instructions provided by two-way radios. Refusal to use two-way radios in accordance with that requirement will result in plant and equipment being garaged or depoted with the operators; pay being docked until operators are prepared to operate plant in accordance with these lawful directions. Therefore, operators are not to access plant or remove it form the depot unless they are prepared to utilise two-way radios and mobile phones and carry out all lawful instructions.". [13] Following this the Union officials spoke with the employees and they, and a large number of employees, eventually left the area of the meeting. It seems that these persons then formed a picket line off the main front entrance and the side entrance to the Council administration centre. [14] It is common ground that the employees who gathered at Bedford Road Depot on 13 November 2003 and who did not return to work withdrew their labour for that day. This included Mr Jones, Mr Senini and Mr Callaghan. The claim for recovery of wages in respect of these three employees does not relate to 13 November 2003. -- 3 of 17 -- 4 [15] Meeting of 14 November 2003: On the following morning it appears that most of the employees attending at the Bedford Road Depot attended with the intention of working on that day. Mr Gouldthorp and Mr McKinlay also attended at the Depot at about 6.00 a.m. on 14 November 2003. All four employees the subject of these applications attended this meeting. Once again some of the memoranda mentioned previously were handed out to some employees. A large group of employees all arrived at the same time together with Mr Flack and Mr Trask and it appears that these employees were not handed the memoranda on this day. The employees again assembled in front of the administration building. Mr Gouldthorp's evidence is that he again read the prepared script word for word. As he was reading the script Mr Flack kept repeating "so are you standing us down". Mr Gouldthorp says that he was particular not to use the words "stand down" at any time. He had reinforced this to his managers on the afternoon of 12 November 2003. Mr Gouldthorp said that when he finished reading the script he responded to Mr Flack by saying "no, I am not standing the men down. Those who wish to work and are willing to work are welcome to do so. However for those who are not willing to do their full job, and will apply the bans, we will not release the plant". [16] Mr Gouldthorp says that he read the script a second time. Mr Flack continued to repeat his statement "so, you are standing us down". Mr Gouldthorp's evidence is that he responded by saying "no, those who wish to work and are willing to work are welcome to do so. However for those who are not willing to do their full job, and will apply the bans, we will not release the plant". At one point Mr Gouldthorp said that he responded to Mr Flack with the following words "Gary you can call it what you like, that's not the case". Eventually a number of the employees left with the Union officials and commenced to picket the administration building. Mr Gouldthorp is adamant that he did not affirm that employees were being stood down. He says that he was particularly careful to avoid the use of the term. Some of this evidence by Mr Gouldthorp is disputed by witnesses for the FEDFA and the AWU. [17] According to the evidence of Mr Gouldthorp it is not a question of whether the bans involve less than 5% of the daily tasks of these employees. Rather that communication with plant operators is integral to the operational efficiency of the plant operators themselves and their work units and is also integral to ensuring the health and safety of Council employees and the public. [18] The evidence is clear that when the four employees, the subject of these applications, arrived for work on 14 December 2003 they were still participating in the bans and limitations that had been imposed on 12 November 2003 following the stop work meeting, i.e.  a ban on all communication via radio and telephone excepting emergencies or instances that may compromise health and safety; and  a return to the depot for all meal breaks, rest breaks and finish times although some witnesses had a different view as to whether this industrial action actually required a return to the depot. [19] The four applicants were not provided with mobile telephones so it was the ban on radio communications that were in issue in these proceedings. On 14 November 2003 the four individual employees, the subject of these applications, were not returning to work to perform all of the duties of their positions. They were still intent on not using the two-way radio communications except in emergencies or instances that may compromise health and safety. They were also returning to work on the basis that they would return to their depots and/or the nearest toilet facilities rather than remaining at their work sites as is the common work practice. [20] The matter was ultimately referred to the Queensland Industrial Relations Commission with a Member conducting a Conference on the afternoon of 14 November 2003. The outcome of this Conference was that all employees returned to work at the Council on the following Monday. Witness Evidence [21] A summary of the evidence adduced from witnesses, other than Mr Gouldthorp, in respect of the Bedford Road Depot is as follows: [22] Mr Jones is a FEDFA delegate. His evidence is that at a meeting on 5 November 2003 it was decided that the protected industrial action that the Council employees would engage in was: that they would not use mobile phones or radios to communicate; and that they would return to the nearest Council depot for any breaks - this was contrary to normal practice. In relation to the bans, Mr Jones says that the workers agreed that they "would still use the radios or phones in the case of any emergency or safety issue". In the grader that he used, a two-way radio and a UHF were installed. His evidence is that he uses the UHF about six times a day to communicate with fellow workers about work related matters and he uses the two-way radio "very rarely", he might use it "up to 6 times a -- 4 of 17 -- 5 month" in circumstances where he has "a break down or someone else has an emergency". Mr Jones says that he had no opportunity to enforce the bans on 12 November 2003. [23] It is Mr Jones' evidence that Mr McKinley handed him the internal memorandum on the morning of 13 November 2003 prior to him attending the meeting. He can recall Mr Trask suggesting to the workers that they "increase the industrial action and suggested we withdraw our labour for the day". A vote was taken and it was unanimously agreed that "we withdraw our labour for the day". Further, it was agreed that the workers would meet at the front of the Council depot on the following morning. [24] At the meeting on 14 November 2003 Mr Jones says that it was agreed at the union meeting that they "would return to work however ... we would keep the bans in place". Mr Jones says that as he went to commence work on that day he was met by Mr McKinley and told to attend a meeting with Mr Gouldthorp in front of the foreman's office. His evidence is that Mr Gouldthorp said "if we were keeping the bans in place that we could not start work" and further, that it was "a health and safety issue". Mr Jones could not see how it was a safety issue given that "years ago there were no communication and it was not an issue then". [25] Mr Senini is a water truck driver. His evidence is that on 5 November 2003 it was decided that protected action would be "a ban on the use of mobile phones and radios except in the case of an emergency" and further that "[w]e would also return to the nearest Council depot to have our breaks etc.". In his truck he has a two-way radio and a UHF. He says that he uses the UHF several times a day to communicate with fellow workers about where he needs to put water. He uses the two-way "only very rarely like if I have a break down or someone else has an emergency". He says that he might use it six times a month. Mr Senini also says that he had no opportunity to enforce any radio bans on 12 November 2003. [26] Mr Senini also received a copy of the memorandum from Mr McKinlay prior to attending the meeting on 13 November 2003 and read the memorandum. Mr Senini then says that he attended the meeting. He says that at this meeting Mr Trask suggested that the workers "increase the protected action and withdraw our labour for the day". It was then unanimously agreed to withdraw their labour for the day and to attend a further meeting at 6.00 a.m. the following morning. According to Mr Senini, at that 6.00 a.m. Union meeting it was agreed that "we would return to work however ... we would keep the bans in place". Following this meeting Mr Senini says that he was asked by Mr McKinley to attend a meeting in front of the foreman's office. Mr Senini says that Mr Gouldthorp asked the gathering whether they were going to keep the bans in place and that many of the workers called out "yes". He says that Mr Gouldthorp told the meeting it was a "safety issue". It was Mr Senini's evidence that Mr Gouldthorp said that "we were all stood down" and that the words "stood down" were used several times. Mr Gouldthorp also advised the meeting that the workers "were not allowed to use any of the equipment while the bans were on". [27] Mr Callaghan's evidence is that at the meeting on 5 November 2003 the employees agreed that they would impose "bans on the use of radios and mobile phones as well as resolving to return to the nearest Council depot for breaks etc.". He says that in relation to the bans it was further agreed that "we would continue to use the radios and phones in cases that were of concern to health and safety or in an emergency situation". Mr Callaghan's evidence is that he has a two-way radio which he only uses in an emergency "like if I broke down or something". He and his foreman communicate face to face each morning and therefore there "is no need to communicate" with his foreman during the day over the radio. He did not consider that he had imposed any bans on 12 November 2003. [28] On 13 November 2003 Mr Callaghan says that he saw Mr McKinlay handing out the memoranda but he did not receive one himself. He attended the meeting at which he recalls Mr Trask suggesting that they withdraw their labour for the day and this was unanimously agreed to. He also attended the Union meeting on 14 November 2003 where he says it was agreed that the workers would return to work. He was also told by Mr McKinley to attend a meeting with Mr Gouldthorp on that morning. According to Mr Callaghan, Mr Gouldthorp asked the meeting whether they intended to keep the bans in place. The workers said "yes" but they would still use the phones and radios in cases of emergency. Mr Gouldthorp said that it was a safety risk. Mr Callaghan says that, before he left the meeting, he could recall Mr Flack asking Mr Gouldthorp "if the men were being stood down". He says that Mr Gouldthorp responded by saying that "yes the men are being stood down". [29] Mr Sologinkin gives no evidence of attendance at any meeting prior to 14 November 2003. According to his statement he attended work at the Mount Bassett Cemetery on 13 November 2003 when he was told by his "supervisor" that "we were to go home". He attended the meeting on 14 November 2003 at the Bedford Road Depot. He says that during the course of the meeting Mr Gouldthorp told the "outside workforce that they were stood down in a voice that was clear". [30] Mr Flack is an organiser with the FEDFA. Whilst he was unable to attend the 5 November 2003 meeting he says that he was advised that "the workforce had taken a vote to take industrial action in the form of bans on -- 5 of 17 -- 6 communicating via radios and mobile phones". His evidence is that the employees decided on 13 November 2003 to "increase the level of industrial action and decided to withdraw their labour for the day". Mr Flack was in attendance at the Union meeting on 14 November 2003 where he says "the workers decided to return to work but to keep the bans in place". He says that, as the employees went through the gate to return to work, they were advised to attend a meeting with Mr Gouldthorp. He also attended this meeting. Mr Flack's evidence is that Mr Gouldthorp asked the workers "if they would drop the bans". A number of workers called out that they would not. Mr Flack then says that Mr Gouldthorp said that if they would not remove the bans that they were "stood down". [31] Mr Flack said that he asked Mr Gouldthorp whether he was standing the workers down in a manner that all those in attendance could hear. He says that Mr Gouldthorp then said that he wanted all workers who were not going to lift the bans to leave Council premises. Mr Flack said that the bans were eventually lifted on the following Monday. [32] Mr Holley, as the Executive Manager of Infrastructure Services, gave evidence that the primary emergency response function of Mackay Water is to deal with water mains and water service leaks and sewage leaks/spills. These are carried out by Council plumbers, who respond usually by mobile telephone and two-way radio in their vehicles. The emergency response capability is very important to ensure the integrity of the Council's water mains system and water supply to all sections of the community and where there is a serious sewage leak/spill the emergency response is important for health and public amenity reasons. [33] According to Mr Holley, the main functions of the Works Section are road maintenance, road construction, street sweeping and drainage maintenance. Communication by two-way radio is vital as this is the means of communication between plant operators and staff on site. He regards the use of the two-way radio as an essential duty of a plant operator. Council has invested heavily on two-way radio and mobile telephone communication. Effective communication is also important to minimise the effect on the general public of Council works. [34] The primary functions of the Parks and Recreation Section of the Council is, according to Mr Holley, the general maintenance and upkeep of public parks, gardens and foreshore areas including the cleaning of public amenities in the parks and gardens. It has an emergency response function to deal with instances such as a tree falling on a road and otherwise the function is to ensure proper access to roads and property. Various operators self-operate, e.g. ride on mower machines, and their safety is compromised and the efficient and effective directing of work is compromised if there is a breakdown of communication between supervisors and staff who are self-operators. [35] Mr Holley sees the workplace, health and safety and operational concerns of the communication bans as follows:  emergency response times could be compromised by both the ban and the "clicking";  coordination of operations and the efficient and effective distribution of work directions would be significantly compromised;  when a request is received from the general public it is difficult to assess whether it is an emergency or not prior to an inspection of the site and the ban would interfere with such inspection; and  good communication has the result of avoiding emergency situations arising in the first place. [36] On 12 November 2003 it was Mr Holley's advice to Mr Gouldthorp that Council must, for operational and safety reasons, insist upon Council employees complying with Council requirements for mobile telephones and two-way radio communications by plant operators. Mr Holley says that at all times it was his understanding that Council was acting in response to the industrial action being undertaken by employees and that it was not standing down employees. [37] Mr Walker's evidence is that he attended the meeting on 13 November 2003 at about 6.15 a.m. He helped to hand out the memoranda to some of the workers attending the meeting. He does not recall what was said at the meeting except that Mr Gouldthorp read from a document. He recalls Union representatives interjecting and Mr Gouldthorp disagreeing with what they were saying. Mr Walker also attended the meeting at Bedford Road Depot on 14 November 2003. He said that a number of the Works Department employees were not in attendance on 14 November 2003 as they were on a rostered day off. Mr Walker recalls a Union official asking Mr Gouldthorp "[a]re you going to stand us down?" and Mr Gouldthorp responding "[i]f you continue not to work in accordance with lawful actions then you will not be able to work" or words to that effect. He recalls Mr Flack repeatedly asking Mr Gouldthorp whether the men were being stood down. Mr Walker says that Mr Gouldthorp never agreed that the men were being stood down. Mr Walker's evidence is that he did not recall Mr Gouldthorp or any other Council Manager using the words "stand down" on either 13 or 14 November 2003. He says that he had been -- 6 of 17 -- 7 instructed by Mr Gouldthorp on 12 November 2003 that the words "stand down" were not be to used. Mr Walker said that most Parks and Recreation staff remained at work on 14 November 2003. [38] Mr Walker said that Parks and Gardens are located throughout the Mackay district and that the communication system was thus very important for the efficient operation of the Department. The two-way radio and mobile telephones are the only ways to communicate work directions to the employees and to coordinate the activities throughout the day. For some Parks and Gardens employees it is necessary to keep in contact with them through the day in order to send them on to the next work site. For other employees, Mr Walker says that their task may be allocated for the day and thus they may not need to be contacted throughout the day for operational reasons. According to Mr Walker, interference with the use of the two-way radio by operators "clicking" would create a safety issue as there is then no way to communicate a serious accident or emergency. The examples of emergencies he identified were responding to tree falls, oil spills and accidents involving Council employees or property. [39] Mr Walker also said that the resolution requiring workers to return to the nearest depot for breaks would significantly disrupt work. He cited the position of Mr Callaghan who is a self-operative ride-on mower operator who drives the mower from the depot to the work site which may be some distance away. If Mr Callaghan was to be working at Slade Point then his drive back to the depot would be 15 minutes. If the limitation were imposed then this would involve Mr Callaghan in four additional trips per day and thus a loss of productive time of approximately one hour. [40] Mr Walker also referred to Mr Sologinkin being a ganger at the Mount Basset cemetery where the vehicles are fitted with a two-way radio for operational and safety reasons. Need for Two-way Radios and Mobiles [41] The Council's Manager of Works, Ian Wright, was not at work during the period 12 - 14 November 2003 however he gave evidence about the importance of communication involving the two-way radios and mobiles provided to Council employees. According to Mr Wright, the Council uses these forms of communication to coordinate the work crews. The two-way radios are installed in all Council vehicles and plant and are used for communications back to the depot and communications with gangers and supervisors. Within a crew some operators have a UHF two-way radio which is used for communications within the crew. [42] According to Mr Wright, Council work crews operate over a diverse terrain and carry out diverse functions, e.g. filling potholes, digging drains, constructing new roads and slashing long grass. Wherever such heavy machinery is involved there is a workplace health and safety risk that needs to be managed and the mobile phones and two- way radios are a crucial part of responding to such issues. According to Mr Wright, if employees were engaged in "clicking" on their two-way radios then transmission is disrupted. In such circumstances emergency messages cannot be communicated. Response times which are critical in such circumstances can be delayed. Mr Wright considers that "clicking" is an unacceptable workplace health and safety hazard. He also sees the refusal to answer a mobile telephone or two-way radio to be an unacceptable workplace health and safety hazard. A combination of these two practices creates, in Mr Wright's opinion, a situation of heightened health and safety risk. [43] Mr Wright also expressed the view that the bans imposed on 12 November 2003 affected reaction times to customer complaints. The Council apparently has specified response times for customer complaints such as potholes and footpaths. Mr Wright's evidence is that restricted communications severely limit the Council's ability to respond to those issues. Mr Wright also stated that the bans affected the coordination of the work crews throughout 2,800 square kilometres of shire area. His evidence is that many tasks are response driven and are of short duration which means that unrestricted mobile phone and two-way radio communication is vital for efficient operation. The whole supervisory structure of the Works Department is, according to Mr Wright, designed around there being two-way radio and mobile telephone communication. Supervisors would not have enough time, without the benefit of these types of communication, to coordinate work crews and plan ahead for work to be performed. [44] I accept the evidence of Mr Wright as to the operational and health and safety aspects of the two-way radios and mobile telephones. Return to Depot for Breaks [45] Mr Wright's evidence is that the Council, and the Works Department, services more than 1,500 kilometres of roads. A ban requiring work crews to return to the depot would cause significant inefficiencies for work crews outside of a reasonable distance from the depot. Some crews operate at a distance some 50 kilometres or more from the depot. If the resolution were to be applied then some workers would spend most of the day travelling -- 7 of 17 -- 8 rather than performing work. In those circumstances Council could not schedule work for the more distant areas and then those ratepayers would be disadvantaged. I accept Mr Wright's evidence that the scheduling of work for those employees performing in distant areas would disadvantage ratepayers in those distant areas. I also accept his evidence that those employees employed in distant locations would spend a considerable part of the work day travelling to the depot and back rather than working if the terms of the resolution passed on 12 November 2003 were carried out. Clicking [46] The evidence is that it is unknown who was responsible for the "clicking" on 12 November 2003. It is also unknown as to how many employees were involved in the "clicking". One can understand the concerns of the Council's management given that this "clicking" had occurred during previous industrial action by Council employees although that industrial action was not related to the industrial action of 12, 13 and 14 November 2003. It is a process that should not be engaged in by any Council employee as it has the potential to mean that health and safety of employees and others are not addressed at the appropriate time. FEDFA Submission [47] The FEDFA contends that their members, the subject of these applications, were ready and willing to work on 14 November 2003. They submit that it was the action of the Council in denying employees access to work on that day that constituted a lockout of those employees. Schedule 5 of the Act defines a lockout as: "lockout means an employer's action in closing a workplace, or suspending or discontinuing the employer's business, or any branch of it, or an employer's failure to continue to employ a number of employees, with intent- (a) to compel or induce employees to agree to employment conditions or to comply with demands made on them by the employer, or another employer, contrary to this Act; or (b) to cause loss or inconvenience to employees; or (c) to incite, instigate, aid, abet or procure another lockout; or (d) to help another employer to compel or induce employees to agree to employment conditions or comply with demands made by the other employer.". [48] In so submitting, the FEDFA say that the memorandum, from Mr Gouldthorp (Attachment KG6 to Exhibit 9) which stated that plant and vehicles would be "garaged or depoted", communicated to employees that the plant and vehicles would be "closed off" from the employees until such time as the "demands of management had been met" as the plant and vehicles were essential tools required for the employees to undertake their normal duties. It is contended that this act of denying access to essential plant and materials had the effect of locking the employees out of the workplace. The FEDFA also rely upon the correspondence to the FEDFA dated 12 November 2003 and the oral address to the meeting at Bedford Street Depot by Mr Gouldthorp on 14 November 2003 as evidence of the Council communicating its intention to lockout the employees. [49] As for the "intent" referred to in the definition of "lockout", the FEDFA submits that the intent of the Council "was to cause loss or inconvenience to employees until the employees agreed to withdraw from the industrial action that had been communicated to the Council", i.e. the intent was to "break the bans that the employees had resolved to implement once they commenced work". [50] It is then argued that the "lockout" was not lawful in that s. 174 and s. 175 of the Act stipulate the circumstances in which industrial action may be found to be protected action and the Council did not comply with the provisions of s. 174(1)(b), s. 174(2), s. 174(5) and s. 175 of the Act. Section 174 and s. 175 of the Act provide as follows: "174 Protected industrial action (1) This section applies to industrial action that is organised, or engaged in, by a protected person or the employer for the purpose of- (a) supporting or advancing claims made in relation to a proposed agreement; or (b) responding to industrial action by the employer or the relevant employees. -- 8 of 17 -- 9 (2) An action for the industrial action taken after the peace obligation period does not lie under any law, unless the industrial action has involved or is likely to involve- (a) personal injury; or (b) wilful or reckless destruction of, or damage to, property; or (c) the unlawful taking, keeping or use of property. (3) However, subsection (2) applies to- (a) a strike by a protected person, only if the protected person has genuinely tried to reach agreement before the strike starts; and (b) a lockout by an employer, only if the employer has genuinely tried to reach agreement before the lockout starts. (4) Despite subsection (2), an action for defamation may be brought in relation to anything that happened during the industrial action. (5) If the employer lawfully locks out an employee, the employer may refuse to pay the employee remuneration for the period of the lockout. (6) The employer can not lock out an employee unless the continuity of the employee's employment, for the purposes prescribed under a regulation, is not affected by the lockout. (7) In this section - protected person means- (a) an employee organisation that is a negotiating party; or (b) an officer or employee of the employee organisation acting in that capacity; or (c) an employee who is a negotiating party or a member of the employee organisation. 175 Notice of industrial action to be given (1) Section 174(2) does not apply to industrial action unless the person intending to take the action gives all of the negotiating parties - (a) if the action is in response to, and is taken after the start of, industrial action by another negotiating party in relation to a proposed agreement - written notice of the intended action; or (b) otherwise -at least 3 working days written notice of the intended action. (2) However, an employer who is negotiating an agreement with employees may take other reasonable steps to notify the employees of the intended action, instead of giving a written notice. (3) A notice must state the nature of the intended action and the day when it will begin. (4) A notice may be given before the end of the peace obligation period if the intended action does not start before the end of the period.". [51] The Council, according to the FEDFA submission, did not give the requisite notice prior to engaging in protected industrial action. [52] The FEDFA relies upon s. 180 of the Act in making these claims as the section provides a remedy for employees who have been injured in their employment for engaging in protected industrial action. For s. 180 to be applicable, there must be a finding that an employer has contravened s. 179 of the Act. Section 179 provides as follows: "179 Employer not to dismiss employee for engaging in protected industrial action (1) An employer must not- -- 9 of 17 -- 10 (a) dismiss an employee, injure an employee in his or her employment or change an employee's position to the employee's prejudice; or (b) threaten to dismiss an employee, injure an employee in his or her employment or change an employee's position o the employee's prejudice; wholly or partly because the employee is proposing to engage, is engaging, or has engaged, in protected industrial action. (2) Subsection (1) does not apply to any of the following actions taken by the employer- (a) standing-down the employee; (b) refusing to pay the employee if, under common law, the employer is permitted to do so because the employee has not performed work as directed; (c) action of the employer that is itself protected industrial action. (3) In proceedings under section 183 for an alleged contravention of subsection (1), it is to be presumed, unless the employer proves otherwise, that the alleged conduct of the employer was carried out wholly or partly because the employee was proposing to engage, was engaging, or had engaged, in protected industrial action.". [53] The FEDFA submit that the result of the employees having been locked out on 14 November 2003 was that each of them suffered the loss of one day's wages i.e. each of the individual employees the subject of these claims was injured in their employment to the extent of the loss of one day's wages. Section 179(2) of the Act however provides three exceptions to s. 179(1). [54] As for the exception in s. 179(1)(a) of the Act, the FEDFA contend that the Council, at all times throughout the course of the hearing, denied that the employees were being stood down. However, the FEDFA went on to deal with the issue of stand downs. In particular, the FEDFA dealt with s. 98 of the Act which enables an employer to stand down employees in certain situations. In the current circumstances s. 98(2) has no relevance. The FEDFA submit that in cases of stand down, the employer bears the onus of proof in showing that the stand down under s. 98 is permissible: see: Federated Engine Drivers' and Firemen's Association of Australasia Queensland Branch, Union of Employees v Vassallo (2002) 171 QGIG 7 and Harris Scarfe Ltd. v Federated Storeman and Packers Union of Australia (1928) 26 car 392. The FEDFA then went on to deal with the specific criteria which must be established before an employer could successfully stand down an employee. This criteria was said to be:  The reasoning for the stand down must address the circumstances of each specific employee. It was submitted that the Act in s. 98 refers to the singular employee and does not enable an employer to stand down a group or a class of employees. This submission does not however address the effect s. 32C of the Acts Interpretation Act 1954. In this regard the FEDFA submit that the Council has not produced sufficient evidence to establish that appropriate consideration was given to each individual employee's circumstances prior to the action being taken against them: see Federated Engine Drivers' and Firemen's Association of Australasia Queensland Branch, Union of Employees v Vassallo (2002) 171 QGIG 7 and The Australian Workers' Union of Employees, Queensland v Cattle Creek Co-operative Sugar Milling Association Limited (1987) 125 QGIG 891. The FEDFA submit that Mr Gouldthorp, in addressing the meeting on 14 November 2003, asked the meeting whether the bans on communications were still in place and when the group as a whole replied that the bans were in place, Mr Gouldthorp advised the group that they could not start work and had to leave the premises. That was not however the extent of the evidence before me of what Mr Gouldthorp said at the meeting. The evidence of Mr Gouldthorp was that in responding to a question of Mr Flack he said "[n]o I am not standing the men down. Those who wish to work and are willing to work are welcome to do so. However for those who are not willing to do their full job, and will apply the bans, we will not release the plant". I accept the evidence of Mr Gouldthorp that the employees were advised that if there were willing to work and perform their full duties that work would be found for them to perform. I also accept his evidence that employees were told that if they were not willing to do their full job then plant and equipment would not be released to them. The FEDFA further submit that the evidence of Mr Callaghan, Mr Senini and Mr Jones was that they were capable of being usefully employed on 14 November 2003 even though the communication bans were in place as they only use the two way radio infrequently.  It must be proven that the employee can not be usefully employed. In this regard the FEDFA submit that individual employees, the subject of their applications, could have been usefully employed because the use of the communications equipment for purposes other than emergencies or safety matters constituted only a small -- 10 of 17 -- 11 element of their overall duties. The FEDFA relied upon the following statement of Spicer CJ and Smithers J in Re Carpenters and Joiners Award (1971) 17 FLR 330: "An employee can not be said to be one who cannot be usefully employed if there is useful work available, the performance of which is within the terms of his contract of employment, although the work of the class upon which he is usually employed or was last employed is not available. In cases where a man is employed to work generally as a carpenter under the award then the work within the terms of his contract of employment would extend to all the aspects of the work of a carpenter... The expression "usefully employed" necessarily connotes that by the employment in contemplation there will be a net benefit to the employer's business by reason of the performance of the particular wok done. If the performance of the work done will prejudice the conduct of the employer's business then it is not useful to him although the work in itself would probably, to some extent, contribute to production.". The FEDFA submit that the usual work of the three members that they represent was to operate plant such as trucks, graders, mowers etc. That, it is said, is their primary job with only some 5% taken up with doing ad- hoc jobs, such as preparing for the days work and taking and giving instructions via two-way radios or mobile telephones.  It must be proven that something has happened for which the employer is not responsible and it must be proven that something has happened over which the employer has no control. In respect of these two criteria the FEDFA submit that the Council was not responsible for the imposition of the communications ban and it had little or no control over the matter. In this regard, however, the FEDFA contend that the Council could not establish that the impact of the communication ban was so significant that it necessitated the standing down of the employees. [55] Alternatively the FEDFA submit that should it be found that the Council did not stand down the employees in question and that the Council instead relied upon its common law right of "no work as directed, no pay" then the following submissions are relevant:  protected action in the form of bans may involve the "no work as directed, no pay" principle however the construction of this requires that work must first be performed and then it must subsequently be established that the work has not been performed as directed;  where the employee refuses to undertake particular duties, e.g. imposes bans, an employer may be entitled to decline to accept performance of the balance of the duties or alternative duties: see Gapes v Commercial Bank of Australia Ltd (1980) 37 ALR 20;  whilst there may be a right at common law for an employer to withhold payment from an employee for "no work as directed, no pay", there is no right at common law for an employer to suspend an employee: see Henley & Pease & Partners (1915) 1KB 698 per Lush J;  in the instant case, the Council did not ask the individual employee to follow a direction and the individual employees refuse to follow such a direction, rather the employees were asked as a whole if the bans were still in place. When the group as a whole advised that the bans were in place, Mr Gouldthorp then advised the group that they could not start work and were to leave the premises. This however is not the whole of the evidence. Mr Gouldthorp's evidence is that the employees were told if they were prepared to perform all of their duties then they were to remain at work and, where necessary, alternative duties would be found. [56] In their submission the FEDFA also dealt with the issue of whether the claim was a request for strike pay. The FEDFA says that the notice provided to the Council by the AMEPKU on 12 November 2003 notifies industrial action which would fit the description of "strike". Further, that s. 238 of the Act contains certain protections for employers against industrial action taken in pursuit of strike pay. The FEDFA contends that s. 238 has no relevance to the current matter as it allows an employer to pay, or not to pay, an employee whist engaged in a strike as defined. All s. 238 does is prevent an employee from engaging in a strike with the intent of coercing the employer to make a payment in respect of a period for which the employee was engaged in a strike as defined. There is no evidence of any strike action to coerce the Council into paying employees for a period during which they were on strike. A.W.U. Submission -- 11 of 17 -- 12 [57] The claim by Mr Sologinkin is for payment for both 13 and 14 November 2003. The position of Mr Sologinkin on 13 November 2003 is different from the position in respect of the other three employees the subject of these claims. The AWU submit that there is no contrary evidence to that of Mr Sologinkin in respect of 13 November 2003, and that therefore his evidence must be accepted i.e. that on 13 November 2003 he was at the Mount Basset Cemetery waiting to go to work as a grave digger when his supervisor informed him that "we were to go home". Mr Sologinkin assumed that the supervisor had received a phone call from his supervisor so he went home. [58] The AWU submit that the actions of the Council on 14 November 2003 constituted a lockout of those employees. The AWU's submission on this point is similar to that of the FEDFA. Further, the AWU contend that the lockout was unprotected industrial action and, like the FEDFA, rely on s. 174 and s. 175 of the Act to argue that there is a clear requirement for notice to be given prior to any party engaging in protected industrial action. It is said that the Council communicated its intention to lockout the employees via the letter to the AWU dated 12 November 2003, the internal memorandum dated 12 November 2003 and the oral address to employees on 13 and 14 November 2003 and that each of these communications failed to comply with s. 175(3) of the Act, in that, the notice made no attempt to identify the day on which the action will begin. In an industrial or employment situation, notice is expected to be provided prior to an event or action occurring. The evidence indicates that the employees were informed at the meeting at 6.00 a.m. that the Council would not accept part performance of their duties on that day. They were similarly informed on 14 November 2003 in connection with the performance of work on that day. The AWU submit that it should not be accepted that the Council has sufficiently complied with the intent of the legislative provision and therefore the protection that may be afforded by s. 174(2) of the Act cannot be relied upon and the lockout is unprotected action. [59] The claim by the AWU in respect of Mr Sologinkin is also a claim under s. 180 of the Act in respect of a contravention of s. 179(1) of the Act. On the issue of stand down, the AWU's submission on s. 180, s. 179 and s. 98 of the Act is similar to that of the FEDFA and I do not intend to repeat the submission. [60] The AWU also dealt with s. 238 of the Act and the definition of "strike" contending that the main thrust of the section is to ensure that employees and/or unions do not engage in strike action or the threat of strike action to coerce an employer into paying for a period when employees were on strike. The AWU contend that there was no evidence that employees of the Council engaged in any activity that would contravene s. 238 of the Act. It is the submission of the AWU that the employees did not engage in any strike action on 14 November 2003 and that, before they had the opportunity to commence work and potentially commence any strike action, the Council locked the employees out of the workplace. The AWU submit that the threat of a strike is not a strike: see Niceski v Dowell Aust Ltd 1981 AILR 157 and that a stand down or lock out to avert the threat of strike action is not a permissible use of the stand down or lockout provisions. Council Submission [61] It is the position of Council that work bans and limitations were imposed by the four employees the subject of these applications on 12 November 2003. These four employees then went on strike on 13 November 2003. At no time were officers of the Council notified by the four employees or their union representatives that their actions on that day were anything other than a withdrawal of labour. Whilst the term "stand down" was used by Mr Flack and Mr Trask, particularly at the meeting on 14 November 2003, Council officers at both the meetings on 13 and 14 November 2003 did not "identify or direct or adopt a stand down of Council employees". It is Council's position that on 14 November 2003 the employees withdrew their labour just as they had done on 13 November 2003. [62] Council contends that the work bans were in existence from 12 November 2003 and were not withdrawn until the employees returned to work on Monday 17 November 2003. All four employees (including Mr Sologinkin) the subject of these applications, agreed to impose the communication bans at a meeting on 12 November 2003. [63] In respect of s. 179 and s. 180 of the Act, the Council submits that the FEDFA and AWU are relying upon the four employees establishing an "injury to an employee in his or her employment" or a relevant threat to injure. The Council contends that neither was established on the evidence and consequently the submissions based on s. 179 are misconceived. In that regard the Council relies on the decision of Ryan J in Independent Education Union of Australia v Canonical Administrators (1988) 87 FCR 49 at 68 where the following was said in relation to a comparable provision of the Workplace Relations Act 1996 (Cth): "I entertain considerable doubt whether the exercise of a claim or right to withhold payment of salary or wages amounts to injuring an employee in his or her employment or alteration of the position of an employee or employee's prejudice within the meaning of s. 170MU(1).". [64] I tend to agree with Ryan J's expression of doubt. -- 12 of 17 -- 13 [65] The Council relies on the evidence of Mr Jones, Mr Senini, Mr Callaghan and Mr Gouldthorp to the effect that the use of the two-way radio communications was a duty of the four individual employees. The evidence of Mr Gouldthorp is that the use of the two-way radios was part of the position description of a plant operator at the relevant time and that the four individual employees were required to operate the radios in accordance with lawful work directions and not to interfere with the use of two-way radios. Mr Gouldthorp's evidence is that readiness to comply with the Council's lawful instruction for the proper use of two-way radios and mobile telephones is "integral to Council operational and safety issues". Council submits that it was a duty of the positions held by the four individuals that they were required to use two-way radios as lawfully directed. [66] In agreeing to implement the work bans, the four individuals, as from 12 November 2003 were not ready and willing to perform certain work duties, being duties of the positions they held within the Council and which the Council lawfully required the four individual employees to perform. The Council further submits that service, or at least a readiness and willingness to perform their contracts of employment, is a prerequisite to the payment of wages and relies upon the following passage in Re Hide, Skin, Wool Dumping Stores Award - Southern Division (1973) 82 QGIG 4 at 6: "It is clear that the employees refused to carry out their normal duties at certain times. They were not therefore at such times available and willing to perform the work as agreed upon. The fact that they reported to and remained at their place of employment does not alter the position. The test is whether they were available and willing to perform the work." and the statement of Justice Rogers in Csomore v The Public Service Board (NSW) (1987) 10 NSWLR 587 at 595 that: "Unless an employer waives the usual requirement of a contract of employment, that an employee perform the full range of work properly assigned to him or unless the award under which the employee works makes a contrary provision, payment of wages is conditional upon performance by the employee of the full range of work assigned, or at least, a readiness and willingness to do so.". [67] In circumstances where the Council has not waived the requirement for the employees to perform the full range of work properly assigned to them, and in the absence of any award provision indicating a contrary provision, the imposition of the bans as and from 12 November 2003 until at least close of business on 14 November 2003, indicated that the four individual employees were not ready and willing to perform certain aspects of their work duties which the Council required them to perform. The four individual employees were thus not entitled to payment for the days on which the Council did not accept performance of something less than full performance of their duties, i.e. 13 and 14 November 2003. [68] The Council contends that its actions on 13 and 14 November 2003 did not constitute a "lockout" or "stand down" of the four individual employees and it relies upon the correspondence faxed to the FEDFA and the AWU on 12 November 2003, the address by Mr Gouldthorp to employees assembled at the Bedford Road Depot on both 13 and 14 November 2003 and the memorandum distributed to some, but not all, employees on 14 November 2003. In this regard the Council also points to the following evidence:  Mr Jones - who agreed that Mr Gouldthorp, at least on the Friday, made it clear to employees that anything less than performance of 100% of the duties, which included use of the communications equipment, would not be accepted by the Council and who further agreed that he was given the memorandum on Friday 14 November 2003;  Mr Senini - who acknowledged receiving the memorandum on Thursday 13 November 2003 and agreed that Mr Gouldthorp advised the meeting that if the employees were not prepared to use the two-way radios, the plant would be garaged and anyone that used the plant would be dismissed and that Mr Gouldthorp did say that it was a safety issue;  Mr Callaghan - accepted that the majority of the what was contained in Exhibit 2 was advised to the employees and in particular that Mr Gouldthorp told the meeting on Friday 14 November 2003 that Council would not accept employees performing less than 100% of their duties and that the meeting was told that the performance of the work was deemed to be unsafe; and  Mr Gouldthorp - that he read the script which is Attachment KG7 to Exhibit 9 to both the meetings on 13 and 14 November 2003, that he advised the meeting on 14 November 2003 that the use of two-way radios was a critical part of their work and that communication was a workplace health and safety issue and he was not prepared to let heavy plant and equipment leave the depot unless the communication equipment was -- 13 of 17 -- 14 going to be used correctly, that he made it clear that those at the meeting who were prepared to do their job were "more than welcome, but actually encouraged to stay at work". [69] The Council submits that it was entitled to reject part performance of the four individual employee's obligations under their employment contracts and further that the Council had a right at common law for it to withhold payment from an employee for "no work as directed, no pay". The Council further contends that at no time was there any suspension of employees. [70] The Council further submits that the decision in Henley and Pease and Partners is not relevant as it did not involve a reaction by the employer to the statement by the employee that he/she was not ready, willing and able to perform his/her duties but rather involved a unilateral action by the employer to exact a penalty on the employee other than dismissal. [71] The proper construction of the conduct of each of the four employees is that they participated in strike action in connection with existing enterprise bargaining negotiations and that strike action commenced on 12 November 2003 and continued through 13 and 14 November 2003. Thus s. 238(1) relieves the Council of having to pay wages whilst that strike occurred once it indicated to employees that it was not prepared to accept part performance of the duties. In this regard the Council relies on the view expressed by Ryan J on the effect of s. 187AA of the Workplace Relations Act 1996 in Independent Education Union of Australia v Canonical Administrators (1998) 157 ALR 531 at p. 73. [72] Section 238 of the Act is said by Council to mean that when an employee is on strike, the employee is not entitled to be paid. The strike action of the four individual employees commenced on 12 November 2003 and therefore was taking place or had taken place before the Council refused to make payment. Ness Street Depot [73] Whilst none of the employees covered by the applications attended at the Ness Street Depot I did have evidence before me about events at the Ness Street Depot on 13 and 14 November 2003. Darryl Rankin is an organiser with the AWU and he gave evidence about the Ness Street Depot meetings on 13 and 14 November 2003. His evidence is that on 13 November 2003 at approximately 6.00 a.m. he was at the Ness Street Depot waiting for management to stand the employees down. [74] The management representatives at the Ness Street Depot were Mr Holley and Jason Devitt, the Council's Manager of Mackay Water. Mr Holley's evidence is that he attended the Ness Street depot on 13 November 2003 with Mr Devitt. As Council employees arrived for work he handed out copies of the internal memorandum by Mr Gouldthorp. When the employees assembled he read out the script prepared by Mr Gouldthorp word for word. After he finished reading out the script Mr Rankin then addressed the group and said words to the effect that "Council's position was inappropriate". Mr Rankin was using his mobile telephone and he advised the group that he was being informed as to what action was taking place at Bedford Road Depot. Mr Rankin asked him on a number of occasions if the men were being stood down. He said that he responded by words to the effect that the men were not being stood down and that it was an issue that safety would be compromised by the bans. Mr Holley says that he advised those workers who were not plant operators but were reliant on plant operators to get to their job sites that they would be found alternative duties if they stayed at work. Eventually, Mr Rankin advised the employees that "they're all leaving the depot at Bedford Road. We'll do the same here." Mr Holley said that he arranged for the staff who remained to be taken to other work sites and for the apprentices to be taken to the Bedford Road Depot to be supervised there. [75] Mr Holley says that he also attended the Ness Street Depot on 14 November 2003 where there were less employees gathered than on the previous day as it was an RDO for many staff. A number of the staff were preparing to leave the depot in Council vehicles. Mr Rankin also advised him that staff were prepared to work but would still enforce the bans. Mr Holley said that he reinforced to the group his comments of the previous day. Mr Holley said that he also had a discussion with Mr Gouldthorp who confirmed that staff that were to continue with the bans would not be permitted to use Council plant and equipment. Mr Holley denies using the term "stand down" at the meetings as Mr Gouldthorp on the afternoon of 12 November 2003 had specifically instructed officers that the words "stand down" were not to be used. Mr Holley confirmed that he informed the group of employees that work would be provided for those employees who were prepared to work and follow workplace instructions and not apply the workplace bans. Mr Holley generally denied much of Mr Rankin's account of what Mr Holley said at the meeting. [76] Mr Devitt says that he went to the Ness Street Depot to assist Mr Holley on the morning of 13 November 2003. The employees in his department generally commence work at 6.30 a.m. and therefore arrived after other employees who generally commence work at 6.00 a.m. Mr Devitt says that he handed out a few of the memoranda signed by Mr Gouldthorp to Water Department employees. Where he was located he was unable to hear what -- 14 of 17 -- 15 went on at the meeting but does recall that after the meeting some employees came past where he was located saying "[t]hat's it, we're out". Mr Devitt did confirm that a number of Water Department employees remained at work because water is an essential service. With the numbers of employees remaining at work the water operations were able to be kept going. [77] Mr Devitt's evidence is that he also was told by workers who report to him that there were some difficulties in communicating with Council employees on 12 November 2003. He said that he was alarmed at that advice because the two-way radio is used for operational reasons, i.e. ensuring that there is a smooth flow of work. In the Water Department the jobs to which employees respond may be of relatively short duration and these employees need to be communicated with a number of times during each day in order to be directed as to the next job. Mr Devitt was also concerned that the ability of employees to respond to an emergency would also be compromised with the ban. This would include responses to breaks in water lines and also sewage spills which happen on a daily basis and employees need to respond as soon as possible. [78] On the evidence before me as to the meetings at the Ness Street Depot I do not think there is much to distinguish the circumstances of the employees who attended at that Depot from the circumstances of those employees who attended at the Bedford Road Depot. Conclusion [79] I accept that all four employees commenced industrial action on Wednesday 12 November 2003. The industrial action engaged in was a ban on all communication via radio and mobile telephone excepting emergencies or instances that may compromise health and safety and a return to the depot for all meal breaks, rest breaks and finish times. This industrial action was advised to Council on 12 November 2003. The evidence reveals that, in respect of the return to depot industrial action, the individual employees saw it as a return to the closest amenities although there is no evidence that this was conveyed to Council. No issue was taken that the industrial action was protected industrial action under the Act. The four individuals continued with that industrial action on 13 and 14 November 2003. [80] I accept that the use of two-way radios is an essential part of the duties of all four individual employees. It is not a question of how often the two-way radio is used but rather that it is responded to when used by other Council officers or is used by the particular four individual employees at times when it is needed. I accept that the two-way radios, and for that matter the mobile telephones, are generally used throughout the Council for the allocation of work to plant operators, although that may not have been the case with the particular duties being performed by the four individual employees. I also accept that the use of the two-way radio is an essential aspect of the Council's workplace health and safety policy and is essential for emergencies in the day to day operations of the Council. [81] As for the industrial action that required employees to return to the depot for meal breaks and rest breaks I have little before me other than it is custom and practice for employees to have such breaks at the work site rather than return to the depot. I accept that in some instances, if employees were to return to the depot for all such breaks, little work might be achieved by some employees. [82] The Council's reaction to the industrial action instituted by the four individual employees and others was to respond by saying that if you don't perform all the work, including use of two-way radios, then we will not accept any work being performed by you. That in my view is not a stand down or lockout by the employer. Employees were advised at all times that if they lifted the bans then work would be found for them. A number of employees remained at work and performed duties and were paid for those duties. [83] At no time did the Council waive its right to have employees ready and willing to perform the full range of work contemplated by their particular contracts of employment: see Csomore v Public Service Board (1986) 10 NSWLR 587 and cf Gapes v Commercial Bank of Australia (1979) 41 FLR 27 and Welbourn v Australian Postal Commission [1984] VR 257 where the respective employers accepted the benefit of part performance of the duties of employees when selective bans were imposed. [84] In Csomore v Public Service Board at 595, Rogers J observed that: "Unless an employer waives the usual requirements of a contract of employment that an employee perform the full range of work properly assigned to him or unless the award under which the employee works makes a contrary provision, payment of wages is conditional upon performance by the employee of the full range of work assigned or, at least, a readiness and willingness to do so.". [85] There is no contrary provision in either of the industrial instruments applicable to the employment of the four individual employees. -- 15 of 17 -- 16 [86] Here the four individual employees were not ready and willing to perform the full range of work properly assigned to them on 14 November 2003. Each had been informed by Mr Gouldthorp that the Council was not prepared to accept performance of part of the duties, albeit a reasonable part of the duties. I accept that Mr Gouldthorp did read from the prepared script on both 13 and 14 November 2003. There was no acceptance by the Council of the benefit of alternative work done and the Council did not receive the benefit of any work on 14 November 2003 i.e. except for Wednesday 12 November 2003 when the employees were paid for the part performance. Further there is evidence that some of the individuals received the internal memorandum which clearly stated that Council was not prepared to accept part performance of their duties. [87] Does the fact that the four individual employees were involved in protected industrial action under the Act provide a different outcome? In my view s. 238 of the Act operates in the same way as s. 187AA of the Workplace Relations Act 1996 was said to operate by Ryan J in Independent Education Union of Australia v Canonical Administrators, Barkly Street, Bendigo and Ors, i.e. to prevent an employer from making a payment to an employee where the employee has engaged in industrial action whether such action is protected action or not. Chapter 6 of the Industrial Relations Act 1999 is designed to create a framework in which negotiations for a certified agreement are undertaken and the immunity provisions, which attach to protected action, allow employees to take industrial action and employers to lock out their employees during the bargaining period without exposing themselves to legal action and, in respect of employees, without being dismissed from, or injured in, their employment when the Certified Agreement has been concluded. As Ryan J concluded, the consequence of that protected industrial action is normally loss of remuneration in respect of the period of the industrial action and for employers it is the loss of production attendant on a lockout. Section 238 is there to ensure that the loss of remuneration is not recouped after the bargaining is over and necessarily applies to protected action. [88] Here the individual employees were told that their work would not be accepted unless they carried out the full range of duties. Nothing in the Act places an obligation on an employer to accept a willingness on the part of employees to perform some of their duties but not others. The Council was entitled to reject the offer of partial service and insist on the full range of duties being performed. As was stated by Rogers J in Csomore and Anor v Public Service Board of New South Wales at 599: "[i]t is not for the employee to make a choice of what he or she will do and not do". [89] I do not know what else the Council could have done to declare its intention not to accept partial performance of work duties. The Council corresponded with the FEDFA and the AWU on 12 November 2003 in the appropriate terms, it handed out an internal memorandum to many of its employees on both 13 and 14 November 2003 and it specifically advised employees of its position orally at meetings on 13 and 14 November 2003. [90] In all the circumstances I dismiss all four applications in respect of the claim for payment for 14 November 2003. [91] As for Mr Sologinkin's claim for payment for 13 November 2003 it is the uncontested evidence that he imposed the bans on 12 November 2003 and that those bans continued in place at least to the close of business on 14 November 2003, that he turned up for work at Mount Basset Cemetery on 13 November 2003 and he was told by his supervisor that he was to go home. There is no evidence that Mr Sologinkin was advised that the Council was no longer waiving its right to accept partial performance of his duties as it obviously had done on 12 November 2003. Mr Sologinkin was not cross-examined on the evidence he gave about 13 November 2003. Mr Sologinkin was not cross-examined about whether the person who informed him to "go home" did so in the capacity as his supervisor or in some other capacity. [92] In all the circumstances I cannot be assured that Mr Sologinkin was advised by any Council officer that Council would not accept part performance of his duties on 13 November 2003 and that if the bans weren't lifted by him that Council would not release plant and equipment to him to perform his duties. It may be that Mr Sologinkin was in a significantly different position to most employees of the Council who attended meetings at either the Bedford Road Depot or the Ness Street Depot. I have formed the view that Mr Sologinkin should, on the evidence before me, be paid for 13 November 2003. Order accordingly. D.M. LINNANE, Vice President. Hearing Details: 2006 21, 22 February Appearances: Mr J. Stein of the Federated Engine Drivers' and Firemens' Association of Australasia Queensland Branch, Union of Employees. Mr C. Simpson of The Australian Workers' Union of Employees, Queensland. Mr M. Long of the Local Government Association of Queensland (Incorporated) for the Respondent. -- 16 of 17 -- 17 Released: 17 March 2006 Government Printer, Queensland The State of Queensland 2006. -- 17 of 17 --