Australian Education Union - Northern Territory Branch v Commissioner for Public Employment

[2013] FWC 7567

[2013] FWC 7567

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Australian Education Union - Northern Territory Branch
v
Commissioner for Public Employment
(B2013/237)

VICE PRESIDENT CATANZARITI SYDNEY, 27 SEPTEMBER 2013

Proposed protected action ballot by employees of the Northern Territory public service - form of question.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (the Act) by the Australian Education Union - Northern Territory Branch (AEU-NT) for a protected action ballot order in relation to certain employees of the Northern Territory public service. The Office of the Commissioner for Public Employment (the OCPE) had no substantive opposition to an order being made, but did object to the form of the question proposed by the AEU-NT.

[2] The question proposed by the AEU-NT is as follows:

“In support of reaching an enterprise agreement do you endorse taking protected industrial action in the form of an unlimited number of Territory wide, Regional or Sub Branch stoppages of work of 1 hour to one whole working day in duration or bans or limitations on the manner in which work is undertaken, which may be taken separately, concurrently or consecutively?”

[3] The OCPE objected to the form of the question on the basis that the question, as drafted, does not provide sufficient clarity to enable the employees to make an informed choice.

[4] In response, the AEU-NT relied on the decision of Lawler VP in CPSU, the Community and Public Sector Union v Australian Customs and Border Protection Service 1and the decision of Commissioner Roe in Australian Education Union v State of Victoria (Department of Education & Early Childhood Development).2

Relevant provisions

[5] Relevant provisions include the following:

“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.

...

437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

...

Matters to be specified in application

(3) The application must specify:

(a) the group or groups of employees who are to be balloted; and

(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

...

443 When FWC must make a protected action ballot order

(1) FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.”

(emphasis added)

Clarity of questions to be put to the employees

[6] In John Holland Pty Ltd v AMWU 3,the Full Bench of Fair Work Australia, as it then was, dealt with an appeal against a protected action ballot order based on the form of the questions. In that case the question proposed for the ballot was relevantly as follows:

“In support of reaching an Enterprise Agreement with John Holland Pty Ltd do you endorse the taking of any and all protected industrial action against your employer which is authorised by this ballot, separately, concurrently and/or consecutively in the form of:

Question 1

Stoppages of work for a 1 hour period?

Yes / No

...

Question 8

Indefinite or periodic bans on overtime?

Yes / No”

[7] There were a number of grounds of appeal. The Full Bench drew attention to the same provisions I have set out above and, relevantly for present purposes, held:

“[11] The first ground of appeal is based on the contention that it is a requirement of s.437(1) that the application for a protected action ballot order must unambiguously specify the nature of the particular industrial action which is to be endorsed. The appellant relies on the terms of ss.437(1) and (3)(b) as well as the object of the relevant division in s.436. ...

...

[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.

[20] The appellant’s criticism of the questions in the AMWU application is based on a technical and pedantic approach. The expression “separately, concurrently and/or consecutively” does not deprive the question of meaning. Those expressions apply, as far as there is scope, to the types of industrial action specified. We have already noted the terms of s.459(2) which gives separate justification for the term “consecutively”. While it is possible to construct extreme examples of the number of types of industrial action which might be authorised by an affirmative answer to the questions, in practical terms the questions do no more than identify eight types of industrial action and the possible options for taking each of those types of action.

[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.”

(emphasis added)

Conclusion

[8] The AEU-NT elected to frame the question as it did. In line with the Full Bench authority outlined above, if the questions posed to the employees “describe the industrial action in such a way that employees are capable of responding to them”, then no objection should be taken to the form of the questions, as this is a matter for the applicant.

[9] Accordingly, I conclude that the question in the present case meets the relevant requirements of the Act and that the protected action ballot order sought by the AEU-NT could not be refused on the basis of the form of the question. I further note that Commissioner Roe, in Australian Education Union v State of Victoria (Department of Education & Early Childhood Development), issued a protected action ballot order which included a question in substantially the same terms as in the present case.

[10] The appropriate order will be issued with this decision.

VICE PRESIDENT

Appearances:

P. Clisby for the Australian Education Union - Northern Territory Branch.

M. Hathaway for the Office of the Commissioner for Public Employment.

Hearing details:

2013.

Sydney and Darwin (via teleconference):

September 27.

 1   [2010] FWA 8293

 2   [2012] FWA 6168

 3   [2010] FWAFB 526

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