Australian Education Union v The State of Victoria (Department of Education and Early Childhood Development)
[2012] FWA 3729
•2 MAY 2012
[2012] FWA 3729 |
|
DECISION |
Fair Work Act 2009
s.437—Application for a protected action ballot order
Australian Education Union
v
The State Of Victoria (Department of Education and Early Childhood Development)
(B2012/81)
DEPUTY PRESIDENT SMITH | MELBOURNE, 2 MAY 2012 |
Proposed protected action ballot by employees of The State of Victoria (Department of Education and Early Childhood Development).
[1] This is an application for a protected action ballot by members of the Australian Education Union (AEU) employed by the State of Victoria (Department of Education and Early Childhood Development) (SOV). The application is made pursuant to s.437 of the Fair Work Act 2009 (“the Act”).
[2] The applicant seeks to ballot employees of SOV who are members of the AEU and who would be covered by the proposed enterprise agreement.
[3] To begin, SOV argue that the application has not been made in accordance with s.437(1) in that it did not describe the particular protected industrial action. The question proposed by the AEU is:
“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] SOV do not raise objection to the reference to the 1 to 24 hour stoppages but do object to the reference to bans or limitations and submit that the description is not specific enough to comply with the statutory requirements for making such an application. It submits that employees would not know the nature of the action to be taken when consideration is given on how to vote.
[5] In support of this approach SOV principally relied a Full Bench decision [United Firefighters Union of Australia v Country Fire Authority (2006) 158 IR 120 per: Watson VP, Lacy SDP and Hingly C] (Firefighters) which was followed by a number of single members. This decision examined the statute and directed some attention to the use of the phrase “particular protected industrial action”. SOV spent some time examining the use of the word ‘particular’ so as to highlight the difference between the specificity adumbrated by the Full Bench and the generic language used by the applicant.
[6] In submitting that the decision of the Full Bench in Firefighters should be followed, SOV reminded the Tribunal of dicta established by Full Benches and referred to a decision (not unfamiliar) which dealt with the issue in passing. In Re: Appeal by Teachers Association of Australia, (1989) Print H9116 (per Coldham J and Smith C):
“The dicta of the [High] Court are, and must be, directly apposite to the material adduced before the Registrar and, with respect, throw a new light on a unique situation. Indeed those who 'speak last' must be given more than due respect by an inferior tribunal.”
[7] The reference to which the majority in that Full Bench referred was Harvey v Ottaway [1915] VLR 520, 525, where Madden CJ criticised two magistrates who did not follow precedent, saying:
“In this case the justices would not hear the law expounded, because they claimed that the experience of two old married men was a better guide in these matters than the law presented to them. But one must always remember that in judicial proceedings magistrates have undertaken to administer justice according to law, and they, and indeed every one of us, would do well to listen to the House of Lords - a tribunal not only composed of the greatest lawyers but also the most authoritative, for they speak last. And if it be said that the magistrates here acted on an inspiration springing from the antiquity of their domestic relations, they ought still to remember that the Judges of the House of Lords, in addition to being great lawyers, are probably no less old and no less married than themselves, and that acting on the inspiration in question is certain to lead to confusion and appeals and costs in the administration of justice. Therefore it is better to apply the law, which is the wisdom of a great many, than to act on one's individual impression. There is naturally a disposition in all of us to believe in our own point of view - to think we know best. That is an unwise proposition, though, no doubt, a very comfortable one. It is regrettable that the magistrates here did not follow, or at all events listen to, the law.”
[8] It is well settled that Full Bench decisions should be followed [Re Dalrymple Bay Coal Terminal (Print N0224), 20 March 1996 per Ross VP, Hancock SDP and Bacon C], but in relation to this dispute there is another Full Bench, [John Holland v AMWU [(2010) 194 IR 239 per Giudice J Watson SDP and Blair C] (Holland) on which the AEU rely.
[9] The approach adopted in Holland is reflected in the following extract:
“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.”
[10] It is submitted by the AEU that this most recent Full Bench decision in Holland is the one that should be followed and that:
- Employees were well aware of what the phrase bans or limitations on the manner in which work is undertaken meant,
- The notice that was required under s.414 of the Act would provide further details of the bans or limitations to be imposed, and
- The description of bans and limitation conveyed to the employees the type of conduct which was sought to be protected industrial action.
[11] In response, the SOV submitted that the decision in Holland could be distinguished as there were different questions being considered and that Holland did not mention the earlier Firefighters decision. It follows, in the submission of SOV, that the earlier decision remained good law and should be followed.
[12] The SOV were very thorough in the material provided and it included the transcript of the proceedings in Holland. Whilst it is true that the Full Bench did not specifically refer to Firefighters in its decision, nevertheless it was argued in the proceedings and the decision of the Bench had regard to the earlier decisions. It cannot be said the Full Bench in Holland did not have drawn to its attention all of the relevant authorities. Secondly, I accept that the questions were different but the critical point is whether or not those called upon to vote understand the plain words of the question.
[13] I do not doubt that the phrase bans or limitations on the manner in which work is undertaken would be well understood by teachers. Indeed, such language is very similar to that used by the Act (s.19) which provides the gateway for other action to be taken by the employer. These are experienced industrial parties and this path, upon which they are about to embark, is not novel.
[14] Against this background it appears to me that the appropriate course it to follow the decision in Holland. I reject the submission by SOV that the AEU has not met the jurisdictional requirement of s.437(1) of the Act.
[15] In considering this matter I must also apply s.443 of the Act which provides:
443 When FWA must make a protected action ballot order
(1) FWA 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) FWA 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) FWA 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 FWA 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 FWA decides, under subsection 444(1), is to be the protected action ballot agent; and
(b) the person (if any) that FWA decides, under subsection 444(3), is to be the independent advisor for the ballot.
(5) If FWA 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.
[16] In light of the earlier finding, I am satisfied that the application has been made in accordance with s.437 of the Act.
[17] 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 the employer of the employees who are to be balloted. I am satisfied, after hearing submissions from Mr Henderson, on behalf of the AEU, that this is the case.
[18] Having decided that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the AEU.
[19] The final matter for determination before making the protected action ballot is the submission by SOV that exceptional circumstances exist which justify the written notice referred to s.414(2) being longer than 3 working days. SOV argue that what constitutes exceptional circumstances was considered by Lawler VP in CEPU v Australian Postal Corporation[2007] AIRC 848. That case was concerned with a similar provision under the Workplace Relations Act 1996. In that case His Honour observed:
“[22] The first example provided in Davids Distribution provides an illustration of where exceptional circumstances may justify an extension of the required notice period. A sophisticated piece of plant, such as a smelter, may take many days to shut down without damage. The employer is exposed to wholly disproportionate damage if it is prevented by too limited a notice period from undertaking an orderly shutdown of the plant. A further example may be afforded by a strike by teachers where the school needs to be able to notify parents of the strike so as to give them an opportunity to make alternative arrangements for the care of their children on the days of the strike. Typically, three working days will be insufficient for this purpose. (emphasis added)”
[20] It was submitted by SOV that State wide strikes impact on families with school age children in the State school system. It was put that there are more than 500,000 primary and secondary students which could be impacted and that parental expectations are that proper notice will be given if a stoppage of work was to occur. In addition, if bans and limitations are imposed they could impact upon General Achievement Tests scheduled for 14 June 2012 and the second national Australian Early Development Index data collection that will occur from 1 May until 31 July 2012.
[21] SOV submitted that if the Tribunal was of the view that further evidence was needed then it sought leave to present such evidence.
[22] The AEU opposed the lengthening of the notice period and submitted that it had not occurred in the past 1 and that schools were very experienced in providing urgent messages to parents. In this connection a statement was tendered of David B Adamson, the Principal of Essendon Keilor Secondary College, which demonstrated the ways in which parents can be readily contacted. Mr Adamson was not cross-examined.
[23] I have given this matter some consideration. The evidence of Mr Adamson was that not only could quick notice be given to parents but that no parent had ever complained to him that there was a lack of notice to enable alternative childcare arrangements. For reasons explained at the time, SOV was not able to call any evidence. If I intend to rely solely on the evidence of Mr Adamson I must provide SOV with the opportunity to call evidence as there were sound reasons why it was unable to provide evidence on the day. However, I do not propose to rely solely on his evidence and will consider all of the factors raised. Whilst the reference in the decision of Lawler VP was obiter, nonetheless I find myself in agreement with his view in this case. The size of the student population and the various families affected leads me to be cautious about the possible impact upon parents and school planning. It is not a difficult assumption to make that many families have parents who work and the stresses on making alternative arrangements, up to and including seeking leave from their own workplace, need to be considered. This of course needs to be balanced against the presumption that employees are entitled to take protected industrial action in pursuit of their bargaining position.
[24] Of the number of decisions referred to by the SOV, the one which appeared to impact upon the public the most was a matter involving public transport in the Australian Capital Territory [Transport Workers’ Union of Australia v the Chief Executive of the ACT Internal Omnibus Network (ACTION) on behalf of the Australian Capital Territory (2010) FWA 3355 per Hamberger SDP] and in this case the time period was extended to five working days. In that matter the impact was said to affect some 73,000 people per day. In this case the impact could be much greater.
[25] Added to this is the arrangements made at schools for the teaching week, including the matters drawn to my attention by the SOV. Given that it is not possible to distinguish between the types of protected industrial action which might be undertaken when setting the timeframe, it is appropriate that a decision take into account action which will be the most disruptive to parents and schools. All in all I consider that it is appropriate to provide both families and the schools five working days notice.
DEPUTY PRESIDENT
Appearances:
B. Henderson for the Australian Education Union.
M. Tehan, Solicitor on behalf of the State of Victoria (Department of Education and Early Childhood Development).
Hearing details:
2012.
Melbourne:
April, 27.
1 The one exception being a consent order by Deegan C in PR973213
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