Australian Education Union v Bendigo Kangan Institute

[2014] FWC 8373

[2014] FWC 8373

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Education Union
v
Bendigo Kangan Institute
(B2014/1595)

COMMISSIONER WILSON MELBOURNE, 24 NOVEMBER 2014

Proposed protected action ballot of employees of Bendigo Kangan Institute.

[1] This is an application for a protected action ballot order by members of the Australian Education Union (the AEU) employed by the Bendigo Kangan Institute, Victoria and whose employment is presently covered by the Victorian TAFE Teaching Staff Multi-Business Agreement 2009, the nominal expiry date of which was 30 September 2012. The AEU seeks to replace the multi-business agreement with a single employer enterprise agreement. The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act).

[2] My Order granting the AEU’s application, as amended in proceedings before me, was issued on 18 November 2014, 1 the same day as the hearing, and within two working days of the application having been made. These are my reasons for granting the AEU’s application.

[3] The Applicant seeks to ballot all employees of Bendigo Kangan Institute who will be covered by the proposed enterprise agreement and for whom the AEU is their bargaining representative. The AEU submitted that it has over 230 members employed by Bendigo Kangan Institute “undertaking work which would be covered by the proposed agreement and to the best of our knowledge none of them has appointed another person” as a bargaining representative in the manner set out in s.176(1).

[4] In considering this matter I must apply s.443 of the Act which provides:

443 When the FWC must make a protected action ballot order

(1) The 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) the 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) The 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.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

[5] To begin with, I am satisfied that the application has been made in accordance with s.437 of the Act. The section requires that the Applicant is a bargaining representative (s437(1)), and I am satisfied that is the case. The section also requires the application specify the group or groups of employees who are to be balloted (s.437(3)(a)). I am satisfied that this criterion has also been met by the Applicant.

[6] Sub-section 437(3)(b) also requires the application to specify the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action. In this regard Bendigo Kangan Institute has submitted in correspondence to the AEU that it does not in principle resist the making of a protected action ballot order but that it does object to what it says is the vague wording of the question to be put to voters. In particular Bendigo Kangan Institute argues that the nature of the particular protected industrial action in the single question proposed by the AEU is not described with sufficient clarity for employees on the one hand to make an informed choice, or for the employer on the other hand to know what action is likely be taken in the event of protected industrial action.

[7] The question for determination by the Fair Work Commission, as proposed by the AEU in its amended order is;

“In support of reaching a single-interest enterprise agreement to cover you and your employer do you endorse taking protected industrial action in the form of an unlimited number of stoppages of work of 1 to 24 hours in duration and/or bans or limitations on the manner in which work is undertaken?”

[8] Bendigo Kangan Institute notes in its submission that two types of industrial action are conflated into the one question, with reference being made not only to an unlimited number of stoppages of work of between 1 and 24 hours duration, but also to bans or limitations on the manner in which the work is undertaken. Bendigo Kangan Institute also submits that the reference in the proposed question to “bans or limitations on the manner in which work is undertaken” is too wide and vague and will not allow employees to understand what work would not be undertaken or the work that would remain for them to be done.

[9] The principles to be followed by the Commission in the determination of an application for a protected action ballot order are well settled.

[10] In Mornington Peninsula Shire Council,  2 the Full Bench majority held, in relation to an argument that questions were ambiguous or lacked sufficient particularity in order for the employer to take remedial or response action, that all that is required by the relevant section, s.437, is that the questions to be put to voters should describe the industrial action in such a way that employees are capable of responding to them. The decision followed the earlier reasoning of the Full Bench in John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union in which the Full Bench held;

“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.”  3

[11] The AEU also drew to my attention to a decision by Deputy President Smith in which he considered a very similar question to that which is now proposed for order in this matter. In AEU v The State of Victoria (Department of Education and Early Childhood Development), the AEU sought an order of the Commission for this proposed question;

“In support of reaching an enterprise agreement, do you endorse taking protected industrial action in the form of an unlimited number of State wide or Regional or Sub Branch stoppages of work of 1 to 24 hours in duration or bans or limitations on the manner in which work is undertaken?” 4

[12] In that matter an argument was advanced by the State of Victoria that the application had not been made in accordance with the Act in that it did not describe the particular protected industrial action. After considering that proposition, Deputy President Smith held that the phrase “bans or limitations on the manner in which work is undertaken” in the proposed question would be well understood by those called upon to respond to the question in that matter, being teachers, and that the question otherwise met the jurisdictional requirements of s.437(1) of the Act. 5

[13] Bendigo Kangan Institute also referred me to the decision of the Queensland Industrial Relations Commission in Queensland Teachers Union of Employees AND State of Queensland (Department of Education, Training and Employment, 6 which considered a question in terms similar to that considered in AEU v The State of Victoria (Department of Education and Early Childhood Development), and not dissimilar to the question proposed in this matter. Deputy President Bloomfield refused the application, and acceded to a request by the State of Queensland that the parts of the question be separated in order for it to be framed clearly so that voters may sufficiently identify, and then vote on, the nature of the proposed industrial action.7 The decision was made under the Industrial Relations Act 1999 (Qld). While the applicable consideration in that Act is similar to that within s.437(3)(b) of the Fair Work Act 2009 (Cth), the provisions are not identical. Whereas the two Acts contain the same threshold requirements for an application, namely that the application must state the group of employees to be balloted as well as “the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action”,8 the Queensland legislation provides a definition of “protected action ballot order” that the Commonwealth law does not;

“2 Definition for sch 4

In this schedule—

protected action ballot order means an order of the commission requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular industrial action in relation to a proposed agreement.” 9

[14] I am satisfied that this is a difference between the two Acts that ought, respectfully, cause reliance on the Queensland decision to be problematic for me. In any event, I am persuaded that the Full Bench authorities to which I have referred should be applied by me, and in particular that I must accept that in most cases the drafting of the question or questions to be put to voters in a protected action ballot will be a matter for the applicant.

[15] After consideration of all the materials before me in this matter and with reference to the earlier decisions of the Commission, I find that the question to be put to the employees to balloted sufficiently describes the particular industrial action for it to be the subject of an Order by me.

[16] I find that question is not so wide or vague as to not be capable of being understood by those called upon to vote in relation to the question.

[17] In relation to the proposition that Bendigo Kangan Institute may not know the industrial action which is proposed by the question and that the employer may therefore have difficulty contemplating employer response action, I take this to be a submission that the proposed question the employee should have greater specificity for the employer’s purposes. In this regard, I note the findings of the Full Bench in the matter of National Tertiary Education Industry Union v RMIT University, in which the following was held about the need for detail in a protected action ballot order question;

“[24] Once a PABO is issued by the Commission and industrial action gains support from the employees eligible to vote, the action is an “employee claim action” - assuming the other prerequisites are met. Once proper notice is given in accordance with s.414 of the Act, the industrial action which is supported by the PABO and notified will be protected under the Act, subject of course to any application made pursuant to Part 3-3, Division 6 of the Act to suspend or terminate the protected industrial action.

[25] It is not the case that the nature of the action as identified in the PABO requires a high level of specificity. The Act clearly provides that the PABO must include “the nature of the proposed industrial action” and the Full Bench guidance in John Holland makes clear that the questions should be specific enough such that “employees are capable of responding to them”.” 10

[18] The next matter to which attention must be given is whether or not the Applicant has been, and is, genuinely trying to reach an agreement with Bendigo Kangan Institute on behalf of the employees who are to be balloted. In this matter, the AEU have filed evidence of the steps taken by the Union to bargain and the progress of bargaining to date. Nothing within that material causes me to form a view that the AEU is not genuinely trying to reach an agreement with the employer.

[19] While I note that Bendigo Kangan Institute has not indicated opposition to the order being made on the grounds that the AEU is not genuinely trying to reach an agreement, it has raised in correspondence to the AEU that the Institute is still awaiting a response from the AEU in relation to a number of unspecified matters put forward by the employer to the AEU. In this matter, the AEU has responded by indicating that it is not opposed to providing a response and that it will endeavour to do so as soon as practicable and that, in any event there are matters on which it is awaiting a response from the Institute.

[20] I do not regard the submission either by the Bendigo Kangan Institute on this subject to be a submission that, because it is awaiting a response, a protected action ballot order should not be made by the Commission, and note that in any event the Institute did not put the submission in that manner. In addition, and after considering the response of the AEU, I do not regard the circumstances being an impediment to the making of such an order. The evidence and submissions in the matter do not give rise to a view that the delay on the part of the AEU so far reaches the threshold specified within s.443(1)(b) for the refusal of an application for a protected action ballot order, to the effect that the AEU is not genuinely trying to reach an agreement with the Institute.

[21] Bendigo Kangan Institute also submitted that its circumstances warranted an exercise of discretion under s.443(5) of the Act to order that the notice period for protected industrial action contemplated in any protected action ballot order be a period of greater than three working days, for the reason that there are exceptional circumstances justifying a longer period. The Institute’s submissions in this regard included that the impact of protected industrial action on its students, many of whom are apprentices or young parents, amounted to the requisite exceptional circumstances.

[22] The submission was made in the absence of evidence and was general in nature. Even after making allowances for the early listing of the hearing of this matter, within two working days of the application having been made, which is explained by the requirement in s.442 of the Act which requires the Commission, as far as is practicable, to determine the application within two working days, it can be expected that a party that seeks to rely on the provisions of s.443(5) bring forward pertinent and cogent evidence of its reasoning for the exercise of discretion it seeks for a longer period of written notice of industrial action. Bendigo Kangan Institute did not submit in the proceedings before me, or otherwise, that it should be allowed further time to obtain and submit such evidence in support of its submission.

[23] Accordingly, I am not persuaded there were exceptional circumstances that would allow me to be satisfied, in relation to this application, that the period of written notice referred to in paragraph 414(2)(a) should be longer than three working days. I therefore refuse this aspect of Bendigo Kangan Institute’s submission.

[24] Having decided all of these matters and that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the AEU. An Order consistent with the AEU’s amended application was issued on 18 November 2014.

COMMISSIONER

Appearances:

Mr G Barclay and Mr D Bunn for the Australian Education Union

Mr J Andrews for Bendigo Kangan Institute

Hearing details:

2014.

Melbourne:

November, 18

 1   PR557895

 2   [2011] FWAFB 4809, at [40]

 3   [2010] FWAFB 526, (2010) 194 IR 239, at [19]

 4   [2012] FWA 3729, at [3]

 5   Ibid, at [13] - [ 14]

 6   CA/2012/47

 7   Ibid, at 16

 8   Industrial Relations Act 1999 (Qld), Sch.4 - s.3(3), cf. Fair Work Act 2009 (Cth), s.437(3)

 9   Industrial Relations Act 1999 (Qld), Sch.4 - s.2

 10   [2013] FWCFB 9549

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