[2012] FWA 5780FAIR WORK AUSTRALIADECISIONFair Work Act 2009 s.437 - Application for a protected action ballot order"
[2012] FWA 5780
•12 JULY 2012
[2012] FWA 5780 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
And Others
vBlueScope Steel Limited & BlueScope Steel (AIS) Pty Ltd
(B2012/1068 & 1069; B2012/1073 & 1074; B2012/1077; B2012/1087 & 1088)
COMMISSIONER MACDONALD | SYDNEY, 12 JULY 2012 |
Applications made by four trade union organisations for protected action ballot orders by employees of BlueScope Steel Limited and BlueScope Steel (AIS) Pty Ltd - all applications opposed but on varying grounds - hearing - one union withdrew its two applications - oral evidence from one trade union - submissions - objection to form of question - permissibility of “rolled up” question seeking a single Yes/No answer to whether multiple forms of industrial action are approved - objection to one union application on ground of not genuinely trying to reach an agreement - objections not upheld - applications for protected action ballot orders granted.
BACKGROUND
[1] Seven applications for protected action ballot orders were made by four trade union organisations as follows:
(a) B2012/1067 & 1068 - Australian Workers Union Port Kembla, South Coast and Southern Highlands Branch (“AWU”)
(b) B2012/1073 & 1974 - Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“CEPU”)
(c) B2012/1077 - Construction, Forestry, Mining and Energy Union (“CFMEU”)
(d) B2012/1087 & 1088 - “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (“AMWU”)
The applications were respectively made on 3, 3, 4 and 5 July 2012.
[2] The applications were made pursuant to section 437 of the Fair Work Act 2009 (“the Act”) for a protected action ballot to be undertaken by members of the four trade union organisations, being union members employed by BlueScope Steel Limited and BlueScope Steel (AIS) Pty Ltd (the Respondent or the Company) at its South Coast operations.
[3] The Company advised my Chambers that all applications would be opposed. The Hearing on the applications and objections was set down for Thursday 5 July 2012.
[4] The AWU was represented by Mr M Decarne, with Mr W Phillips in attendance.
[5] The CEPU was represented by Mr De La Cuardra, with Mr J Thornton and Mr A McKinnon in attendance.
[6] The CFMEU was represented by Ms S Hayward, with Mr D Kelly in attendance.
[7] The AMWU was represented by Mr J Kennedy who called Mr B Hattenfels, union official, to give evidence.
[8] The Company was represented by Mr K Brotherson, solicitor, who was assisted by Mr M Roucek, solicitor. Ms P Renkin, Manager Human Resources Manufacturing from the Company also appeared.
WITHDRAWAL OF TWO APPLICATIONS
[9] The four unions had no objection to the appearance of legal representation on behalf of the Company.
[10] During the early stages of the hearing, I raised the requirements of section 440 of the Act. That section states that an applicant for a protected action ballot order must, within 24 hours of making that application, give a copy of the application to the employer of the employees to be balloted and, relevantly in this case, give a copy to the Australian Electoral Commission (“the AEC”). Three of the trade unions advised FWA that they had evidence to show that they had given a copy of their application to the AEC. However, the AWU confirmed that it had not done so to the AEC. Consequently, the AWU withdrew on the record, its two applications and also withdrew from the proceedings.
SUBMISSIONS
For the Unions
[11] Mr M Decarne of the AMWU made the substantial submission on behalf of the three unions in support of the applications for protected action ballot orders, including referencing sections of the Act pertaining to Protected Action Ballot. He also referred to the evidence given by that Union’s witness, Mr B Hattenfels. 1
[12] Mr De La Cuardra gave submissions for the CEPU. Ms Hayward gave submissions for the CFMEU.
For the Employer
[13] Mr Brotherson gave submissions on behalf of the Employer against the protected action ballot order applications.
[14] As for the AMWU application, there were two grounds for opposing this application.
[15] Firstly, question 5 of the proposed section 437 Order went to the various types of industrial action that could be undertaken but the question was in the form of a rolled up/omnibus question. That is, the employees to be balloted had the choice of marking YES or NO to all types of industrial action. That omnibus form of a question, was to be contrasted to a disaggregated form of question where the employees to be balloted could then mark YES or NO against each type of industrial action. Case law was cited supporting having the disaggregated form of questioning for the undertaking of industrial activity.
[16] Secondly, the AMWU was not genuinely trying to reach an agreement. The witness statements of Mr Brad Hattenfels 2 sets out the state of the enterprise agreement negotiations between the parties but did not include the recent offer from the company made on 29 June.3 Further, this recent offer had not been communicated to the AMWU members for their consideration. By not communicating that offer to his members, then the AMWU was not meeting the good faith bargaining requirements per section 228(d). The AMWU, by its conduct, was not genuinely trying to reach an agreement and that infringed section 443(b). Accordingly, a protected action ballot order should not be granted by FWA.
[17] As to the CEPU and CFMEU applications, the submissions as to the omnibus form of the industrial action to be balloted, applied to the applications made by these two unions.
CONSIDERATION
Prerequisites for Section 437 Application
[18] There are certain prerequisites for obtaining a protected action ballot order. Those prerequisites are considered below.
[19] The three trade unions are bargaining representatives for different categories of employees and hence are entitled to make their applications for protected action ballot orders: section 437(1). The applications are not in respect of a Greenfields agreement or multi-enterprise agreement operations: s.437(2).
[20] The applications specify the group or groups of employees to be balloted: s.437(3)(a) and the question to be put to the employees to be balloted including the nature of the proposed industrial action: s.437(3)(b). The company takes issue with the rolled up form of the question to be put to the employees and FWA will deal with that issue below.
[21] The Australian Electoral Commission is conducting the ballot and hence s.437(4) has no application.
[22] The Company did not submit that the applications infringed s.437(5).
[23] Three of the trade unions had complied with sections 441 and 440. The AWU had not complied with the relevant mandatory requirement of s.440(b) and withdrew its applications.
[24] There were multiple applications before FWA but this was not an issue of concern for FWA: s.442.
[25] Section 443 is headed: When FWA Must Make A Protected Action Ballot Order. There are two limbs to s.443(1). The first limb is satisfied in that applications have been made for protected action ballot orders: s.443(1)(a).
[26] The second limb requires that FWA must be satisfied that each applicant is genuinely trying to reach an agreement with the employer of the employees to be balloted: s.443(1)(b). The Company raised as an issue that the AMWU was not genuinely trying to reach an agreement. No such claim was made against the CEPU and the CFMEU. I will deal with this issue against the AMWU below.
Issue: Rolled Up Question
[27] The Company opposed the granting of the protected action ballot order applications, because of the form of the question going to the industrial action to be voted on by the employees. The Company’s opposition applied to the three trade unions.
[28] Extracted below is the form of the question contained in the CEPU applications:
“QUESTIONS
[4] The question(s) to be put to the employees who are to be balloted are:
“In support of reaching an enterprise agreement with your employer, do you endorse the taking of protected industrial action by CEPU members against your employer, which may involve taking separately, concurrently and/or consecutively any or all of the actions set out below:
1 hour stoppages of work; 2 hour stoppages of work; 3 hour stoppages of work; 4 hour stoppages of work; 8 hour stoppages of work; 12 hour stoppages of work; 24 hour stoppages of work; 48 hour stoppages of work; 72 hour stoppages of work; stoppages for a period of one week; indefinite stoppages of work; indefinite or periodic bans on overtime.
Yes/No ”
[29] The form of the question extracted above is called a rolled-up form. That is, the employee(s) to be balloted can answer YES in support of all forms of industrial action or NO in opposition to all forms of industrial action.
[30] The company advocated that the form of the question is not clear and should be broken up into YES/NO for each type of industrial action being put to the employee(s) for voting. The overall result of such a ballot process could be YES to all forms of industrial action; NO to all forms of industrial action; YES to some forms of industrial action and NO to some forms of industrial action.
[31] In support of its opposition to the rolled-up form of question to be put to employees, the Company referred to case law and the facts of the case.
[32] As to case law, I was referred to: National Union of Workers - New South Wales Branch v FreshExchange Pty Ltd (Watson VP) 4 and Australian Municipal, Administrative, Clerical and Services Union v Pelican Point Power Limited (Bartel DP).5 Both cases support the position that the question to be put should not be in the rolled up form in order to avoid confusion in the minds of the employees to be balloted.
[33] As to the facts of the case, there were reasons why the rolled up question should be rejected. Firstly, the employees to be balloted were experiencing for the first time the concept of bargaining and the scheme of protected industrial action under the Act. These employees and their predecessors have been under New South Wales industrial regulation for some eighty years. There needs to be caution taken by these employees as to the question being asked of them in the context of being afforded statutory protection for any industrial action taken by them. They need to consider each question as to taking industrial action rather than just one consideration to a rolled up question. Secondly, the workforce is large and diverse. There are non-English speaking background people and accordingly, the rolled up question should be broken up so that people fully understand what each particular form of industrial action is.
[34] Having considered the submissions and evidence, I decline to uphold the objection taken by the Company to the form of the question, being a rolled up form.
[35] The Company relied upon two cases in supporting its opposition to the rolled up form of the question (Watson VP and Bartel DP).
[36] The unions put a contrary view and referred me to a decision of Lawler VP in CPSU, the Community and Public Sector Union v Australian Customs and Border Protection Service:
“I note that many ballot orders containing “rolled-up” questions have been made by members of Fair Work Australia (FWA). For the reasons that follow, I find myself unable to agree with the conclusion of Watson VP that such an approach is impermissible under the FW Act.” 6
The unions also referred to a decision of Gregory C in Health Services Union v Victorian Institute of Forensic Mental Health 7 for support of the rolled up question form. That decision does not, per se, support the rolled up question - nor does it oppose that form. The decision refers to a Full Bench Decision and Gregory C says it is appropriate to follow the approach taken in that Full Bench Decision to the question of the rolled up question versus YES/NO for each type of industrial action question being proposed: John Holland Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and The Australian Workers’ Union.
[37] The Full Bench in John Holland Pty Ltd did not have a rolled up question before it. On the contrary, the question was in the separate YES/NO form for each type of industrial action question being proposed. (The Company had no objection to the protected action ballot order applications having the separate YES/NO form of questioning.) But there was still an issue to be considered by the Full Bench as to an alleged ambiguity going to the wording about the nature of the industrial action to be put to the employees.
[38] After considering the relevant sections of the Act, the Full Bench rejected the employer’s submission as to ambiguity and lack of specificity in the question being put to the employees. The Full Bench put a general proposition about the form of the questions to be put to employees:
“[19] Moving now to the construction of s.437 itself, seen in its statutory context, all that the section requires is that the questions should describe the industrial action in such a way that employees are capable of responding to them. If the questions are ambiguous or lack clarity there may be consequences for the bargaining representative and the employees if reliance is placed on the result of the ballot in taking industrial action. If the question or questions give rise to ambiguity, the conclusion may be reached that the industrial action specified in a notice under s.414 was not authorised by the ballot and that the action is not protected for the purposes of s.409(2). It is true that ambiguity or lack of clarity in the description of the industrial action is undesirable, but these are matters more appropriate for consideration under other provisions. It follows that in most cases the drafting of the questions will be a matter for the applicant.” 8
[39] The foregoing general proposition made by the Full Bench is that the form of the question to be put to the employees is, in most cases, a matter for the applicant. And if the question(s) is/are ambiguous or lack clarity, then there may be consequences for the bargaining representative and the employees if industrial action is undertaken.
[40] Apart from making a general proposition about the drafting of the question to be put, the Full Bench specifically dealt with an alleged ambiguous question being put to employees, going to the taking of industrial action. Question 8 was framed as follows:
“Indefinite or periodic bans on overtime?
Yes/No “
[41] The Full Bench said of the objection to this rolled up question:
“[21] The criticism of question eight is unfounded. It might have been clearer to split that question into two parts, one dealing with indefinite bans on overtime and one with periodic bans. But the question is not meaningless. Seen in its full context the question asks whether employees will endorse bans on overtime which are either indefinite or periodic. An affirmative answer would indicate endorsement of both types of ban.” 9
[42] What can be taken from the Full Bench Decision is that the form of the question to be put to the employees is a matter, in most cases, for the applicant. That view is reinforced by the Full Bench not rejecting question 8 even though it was in the form of a rolled up question.
[43] Finally, on the case law, Gregory C pointed out in his Decision that the Pelican Point Power Limited Decision of Bartel DP (relied upon by the Company in the case before me for opposing the rolled up form of questioning) was a decision made after the Full Bench Decision of John Holland Pty Ltd, but did not refer to that Full Bench Decision. 10
[44] As to the facts of the case put by the Company for rejecting the Union’s protected action ballot order applications, I am not persuaded that the diverse and large workforce (including a non-English speaking background) would not understand the question(s) being asked of them in the ballot. This claim by the Company was a sweeping claim. There was no evidence brought that members of the workforce would not understand the question(s) being put for their consideration. Ms Hayward for the CFMEU countered to this understanding issue, that “there is a clear structure set out in terms of negotiations where the delegates pass on the information to the members, and there’s no indication that this would not occur in terms of explaining what the protection action ballot is and what would occur with it, ...” 11
[45] For the reasoning set out above I do not uphold the objections (based on case law and the facts of the case) raised by the Company for rejecting the protected action ballot order applications, because of the rolled up form of the question being asked.
Issue: Not Genuinely Trying to Reach Agreement
[46] The Company opposed the application by the AMWU on the additional ground that it had not genuinely tried to reach an agreement, as required by s.443(1)(b).
[47] The Company’s opposition relied upon questioning the witness statements of Mr Brad Hattenfels (union official for the AMWU) and also his unsatisfactory and evasive responses about matters put to him on the bargaining process between his Union and the Company. Specifically, Mr Hattenfel’s witness statement set out dates of negotiations (and some agenda items) between the parties, but did not refer to the Company’s recent offer of 29 June 2012. 12
[48] In considering the Company’s submission, I have turned to the meaning of “genuinely try to reach an agreement” as considered by the Full Bench in Total Marine Services Pty Ltd v Maritime Union of Australia. 13
“[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. 2 It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.
[32] We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement. At the very least one would normally expect the applicant to be able to demonstrate that it has clearly articulated the major items it is seeking for inclusion in the agreement, and to have provided a considered response to any demands made by the other side. Premature applications, where sufficient steps have not been taken to satisfy the test that the applicant has genuinely tried to reach an agreement, cannot be granted.”
[49] In light of that Full Bench Decision, I will now consider the evidence put by the AMWU as to the state of the negotiations that have taken place between the AMWU and the Company.
[50] There are two industrial instruments being the subject of the protected action ballot order applications.
[51] The nominal expiry date of the BlueScope Steel (AIS) Pty Ltd Port Kembla Steelworks Employees Award 2008, is 27 February 2012.
[52] The nominal expiry date of the BlueScope Steel Ltd - Springhill and CRM Employees Award 2008, is 27 February 2012.
[53] The AMWU formulated a log of claims to be served on the Company following consultation with its delegates and the AMWU membership.
[54] Several meetings have taken place with the Company over a proposed collective agreement: 13 January, 10, 17, 24 February, 2, 16 March, 7 May and 25 June 2012.
[55] The AMWU’s claim includes (but is not limited to) the following items which remain outstanding: Wages; Workers Compensation Top Up; Increased Redundancy Payments and Grader Trades review.
[56] Mr Hattenfels deposed that the AMWU has been willing to discuss its claim with the Company and has duly considered any offer or counter offer which the Company has made.
[57] In my view the above evidence as to the negotiations is of the type contemplated by the Full Bench in terms of the AMWU genuinely trying to reach an agreement prior to seeking a protected action ballot order.
[58] The Company’s submission that Mr Hattenfel’s witness statement was deficient in not referring to the Company’s latest wage offer is factually correct. But the failure to record that wage offer does not impact on my finding that the evidence discloses that the AMWU had already met the “sufficient steps” test to show it was genuinely trying to reach an agreement. Once that “sufficient steps” threshold has been met by a union, any subsequent offer(s) by a company does not impact on that threshold. Any subsequent offer(s) by a company does not start the “sufficient steps” test anew.
[59] The Company did not take issue with the other two unions (CEPU and CFMEU) that they were not genuinely trying to reach an agreement.
CONCLUSION
[60] This decision concerns the Company’s objection to the applications for protected action ballot orders by the AMWU, the CEPU and the CFMEU.
[61] The Company objected to all three union applications on the common ground that the question going to the type of industrial action to be decided by employees in a ballot, was in the form of a rolled-up question. FWA rejected that objection for reasons set out above.
[62] The Company objected to the AMWU application, as well, on the ground that it had not genuinely tried to reach an agreement. FWA rejected that objection for reasons set out above. Accordingly, the requirements of section 443(1)(b) have been met in respect of the company’s objection to the AMWU application on that ground.
[63] I will issue three Orders for Protected Action Ballot Orders in this matter.
COMMISSIONER
Appearances:
Mr M Decarne represented the AWU
Mr De La Cuardra represented the CEPU
Ms S Hayward represented the CFMEU
Mr J Kennedy represented the AMWU
Mr K Brotherson, solicitor with Mr M Roucek, solicitor, represented the Company
Hearing details:
Sydney
2012
5 July
1 Exhibits 4 and 5
2 Ibid
3 Exhibit 6
4 [2009] FWA 221
5 [2010] FWA 7739
6 [2010] FWA 8293
7 [2012] FWA 4633
8 [2010] FWAB 526
9 Ibid
10 [2012] FWA 4633 at [46]
11 Transcript PN 466
12 Exhibit 6
13 [2009] FWAFB 368
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