Australasian Meat Industry Employees Union, The

[2013] FWC 7091

[2013] FWC 7091

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.459—Protected action

Australasian Meat Industry Employees Union, The
(B2013/1219)

COMMISSIONER LEWIN MELBOURNE, 24 SEPTEMBER 2013

Application to extend the 30-day period in relation to B2013/1054.

Introduction

[1] On 16 September 2013, the Australasian Meat Industry Employees Union (AMIEU) made an application under s.459 (3) of the Fair Work Act 2009 (the Act) for the Commission to extend the 30 day period in which certain protected industrial action must be commenced by employees of Somerville Retail Services (Somerville), as a result of a protected action ballot conducted by the Australian Electoral Commission (AEC) and declared on 13 August 2013.

[2] S.459 of the Act is as follows.

459 Circumstances in which industrial action is authorised by protected action ballot

(1) Industrial action by employees is authorised by a protected action ballot if:

(a) the action was the subject of the ballot; and

(b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and

(c) more than 50% of the valid votes were votes approving the action; and

(d) the action commences:

(i) during the 30-day period starting on the date of the declaration of the results of the ballot; or

(ii) if the FWC has extended that period under subsection (3)—during the extended period.

Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.

(2) If:

(a) the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and

(b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;

then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).

(3) The FWC may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a) an applicant for the protected action ballot order applies to the FWC for the period to be extended; and

(b) the period has not previously been extended.

Hearing

[3] The matter was heard at Melbourne on Monday, 23 September 2013. Ms Houlihan, a lawyer, was granted permission to appear for Somerville. Mr Buckley, a National Industrial Officer, appeared for the AMIEU, via video link from Brisbane. Mr Jarrod Jones, who is an Organiser for the AMIEU, gave evidence of the circumstances under which the application is made. Mr Jones tendered a written statement which outlined developments in bargaining between the AMIEU and Somerville for a proposed Enterprise Agreement. Submissions were made in writing and verbally by the AMIEU and Somerville.

Background

[4] A protected action ballot order was granted on application by the AIMEU by the Fair Work Commission on 25 July 2013. 1

[5] The AEC conducted a ballot and declared the result of the ballot authorising protected industrial action by employees of Somerville accordingly on 13 August 2013.

[6] The 30 day period referred to in s.459 (1)(d)(i) of the Act for the protected industrial action to commence under the terms of the ballot declaration concluded on 12 September 2013. The period has not previously been extended. 2

Consideration

[7] Consideration of an Application for an extension as provided for by s.459 (3) was discussed by Commissioner Hampton in Maritime Union of Australia v DP World Adelaide Pty Ltd 3 (Re DP World). I respectfully adopt the following reasoning and observations set out by the Commissioner in that Decision.

[27] I am satisfied, and it is not in issue, that the prerequisites for the consideration of an order pursuant to s.459(3) of the Act have been made out. That is, a relevant period during which protected industrial action may be notified and taken has existed as contemplated by s.459(1)(d)(i) of the Act. Further, the MUA as the applicant for the protected action ballot has applied to Fair Work Australia to extend the 30 day period as contemplated by s.459(3)(a) and the period has not already been extended – so as to satisfy s.459(3)(b) of the Act.

[28] On that basis, the discretion to grant the application and extend the 30 day period is enlivened. This discretion is however real, in that an extension need not follow a finding that the prerequisites have been met. I must be positively satisfied on the basis of the material before Fair Work Australia that I should do so. The length of the extension, if one is granted, is also a matter of discretion provided that it is no longer than 30 days.

[29] The discretions in this matter are to be exercised judicially and all relevant considerations taken into account. This includes the scheme of the Act, the conduct and circumstances of the parties and the consequences of any extension that might be granted.

[30] The concept of protected action as part of the bargaining process is clearly part of the scheme of the Act. That is, subject to various limitations and of course the obligation to bargain in good faith, it is contemplated that the parties are able to take protected industrial action to further their respective bargaining positions and objectives.

[31] One of those limitations is that any protected industrial action that is taken must follow an authorised ballot of employees and be commenced within 30 days of the declaration of that ballot. Once commenced, the form of action taken can continue beyond that period provided it is in line with the ballot endorsed action. There is also the capacity for that 30 day period to be extended where Fair Work Australia determines to permit such upon application.

[8] I am likewise satisfied that the statutory prerequisites for the consideration of an Order pursuant to s.459(3) of the Act are met in relation to the AMIEU’s application in this matter. Both the AMIEU and Somerville have been bargaining in good faith for a proposed Enterprise Agreement, so much is not in dispute. Likewise, there is no dispute that the AMIEU has the necessary standing to bring the application. The relevant period has not been previously extended.

[9] The parties have come close to agreement on terms for an Enterprise Agreement, however, the evidence makes it clear that they have not reached agreement. On the evidence before me, authorised protected industrial action was not commenced within 30 days of the declaration of the ballot by the AEC, due to a misunderstanding between the AMIEU and Somerville, concerning the level of Agreement which had been reached about the terms of the proposed Enterprise Agreement. The AMIEU believed that Somerville had agreed to hourly rates of pay between $1.10 and $2.10 higher than Somerville intended should be the wage rates prescribed by the Agreement. When it became clear that this misunderstanding had occurred 4 application was made by the AMIEU for an extension under s.459 (3) of the Act.

[10] I am satisfied that the reason protected industrial action was not commenced within the 30 day period after the declaration of the ballot was because the employee’s bargaining representative, AMIEU, believed that agreement had been reached on the terms of the proposed Enterprise Agreement, including the wage rates to be prescribed by the Agreement. That belief was not properly founded. The wage rates to be prescribed by a proposed Enterprise Agreement are usually central to agreement being reached for an Enterprise Agreement to be made and are clearly in dispute in this matter.

[11] The discretionary power to extend the time in which protected industrial action may be taken is not conditioned by specific statutory direction. Ms Houlihan for Somerville submits that the misunderstanding between the AMIEU and Somerville is insufficient to ground the exercise of that power. Particularly, it was submitted, as the parties are continuing to bargain for the proposed Enterprise Agreement.

[12] No authority for the proposition inherent in this submission, that an undefined hurdle of some sort exists, such as a discontinuance of bargaining, before the discretion should be exercised was submitted by Ms Houlihan.

[13] Mr Buckley for the AIMEU referred to the decision of Commissioner Hampton cited in Re DP World. In that case the parties had reached in principle agreement on the terms of an Enterprise Agreement to be submitted to Fair Work Australia. Nevertheless, after lengthy consideration Commissioner Hampton extended the relevant period.

[14] In my view, it is not appropriate to invent preconditions to the exercise of the discretion to extend the relevant period where none appear in the legislation.

[15] Where parties are actively bargaining in good faith and have deferred industrial action because of a misapprehension that agreement has been reached, in my view, it would be consistent with the availability of protected industrial action as an incident of the enterprise bargaining system provided for by the scheme of the Act to extend the time in which industrial action may commence, in order to attempt to bring the bargaining to a conclusion.

[16] Other than the requirements for a protected industrial action ballot approving of such action by employees and notice of such action being given to an employer by a bargaining representative, in accordance with s. 414(1)(a) of the Act there is no statutory policy evident concerning when protected industrial action may be taken for a proposed Enterprise Agreement.

[17] In my view, to invent conditions precedent to the exercise of the power to extend the period for the taking of protected industrial action would be likely to undermine the clarity of the rules for the conduct of such action prescribed by Part 3-3 Industrial Action of Chapter 3 of the Act and run contrary to the Object of the Act 5.

[18] As Commissioner Hampton observed in the decision in Re DP World, previously referred to, it is appropriate to exercise the discretionary power conferred upon the Commission by s.459(3) of the Act having regard to the relevant scheme of the Act.

[19] Subparagraph (f) of S.3 Object of the Act is as follows:

(f) achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action;

[20] The object of Division 8 of Part 3-3 Industrial Action of Chapter 3 of the Act is, as follows:

436 Object of this Division

The object of this Division is to establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement.

Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.

[21] The Explanatory Memorandum of the Fair Work Bill 2008 6 refers to changes to the provisions of predecessor legislation regulating protected industrial action and relevantly provides as follows:

“r.285. The requirement to hold a mandatory secret ballot authorising industrial action will be retained. However, provisions will be streamlined and simplified, impacting positively on users of the system. Further details are provided below.”

“1175. Clause 436 states that the object of the Division is to provide bargaining representatives with access to a fair, simple and democratic secret ballot process in order to determine whether employees wish to take certain types of protected industrial action. The Division contains facilitative provisions designed to provide a means for assessing the level of support for protected industrial action. The process the Division establishes is not intended to delay or frustrate the taking of protected industrial action by employees.”

(All emphasis added)

[22] In Transport Workers’ Union of Australia 7I was required to consider the scheme of the Act, as did Commissioner Hampton in Re DP World. Having referred to the legislative provisions comprising the scheme of the Act and the Explanatory Memorandum, I identified various considerations applicable to an application made under s.459(3)(a) as follows:

“

• Would the granting or refusal of the application contribute positively to clarity in the rules governing relevant industrial action?



• Would granting or refusal of the application streamline and simplify the process whereby the relevant employees can take protected industrial action for the proposed enterprise agreement?



• The democratic process which has been followed;



• Would simplification in the process for the authorisation of industrial action for the proposed enterprise agreement be served by granting or refusing the application?



• Would granting or refusing the application be fair to the employees, who are the persons whose wishes are the subject of the provision of s.436 and the conduct of the ballot?



• Would the exercise of the discretion to refuse the application be likely to have the effect of delaying or frustrating the taking of protected industrial action of employees of MGC for the purposes of the proposed enterprise agreement?” 8

[23] In my view of the circumstances in this case, granting the application would contribute positively to clarify the rules governing protected industrial action for the proposed Enterprise Agreement. I also consider granting the application would streamline and simplify the process for taking protected industrial action for the proposed Enterprise Agreement. The democratic process followed as a result of the protected action ballot has authorised protected industrial action by the relevant employees of Somerville. Granting the application would simplify the authorisation of industrial action, whereas not granting the application or adjourning the application would complicate such authorisation. Granting the application would be fair to the relevant employees. Refusing the application would be likely to have the effect of delaying or frustrating the taking of protected industrial action by the employees 9 of Somerville for the proposed Enterprise Agreement.

[24] These considerations favour the exercise of the discretion to extend the period as sought by the application.

Decision

[25] In all the circumstances I consider it appropriate to extend the relevant period by 30 days. An Order will issue accordingly.

Appearances:

Mr C Buckley for the Applicant

Ms L Houlihan for Somerville Retail Services Pty Ltd

Hearing details:

Before Commissioner Lewin

2013

Melbourne:

23 September 2013.

 1   PR 539402.

 2 S.459(3)(b).

 3   [2010] FWA 7638.

 4   Exhibit A, para. 12.

 5 S.3 Fair Work Act 2009.

 6   Explanatory Memorandum, Fair Work Bill 2008.

 7   [2011] FWA 1097.

 8 Ibid. [28].

 9   National Union of Workers v SKF Australia Pty Ltd.

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