Australian Municipal, Administrative, Clerical and Services Union v City of Swan
[2009] FWA 1
•3 JULY 2009
[2009] FWA 1 |
|
DECISION |
Fair Work Act 2009
Sch. 13, Cl 14A - Application for an order that industrial action is taken to be authorised by a protected action ballot
v
City of Swan
(B2009/10012)
Local government administration | |
VICE PRESIDENT LAWLER | SYDNEY, 3 JULY 2009 |
Transitional order under s.14A of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 - industrial action taken to be authorised under s.459 of the Fair Work Act - WR Act Repeal Day is 1 July 2009.
[1] This is an application by the Australian Municipal, Administrative, Clerical and Services Union (ASU) for an order pursuant to s.14A of Schedule 13 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (FW(T&C) Act). That provision is in the following terms:
14A FWA may order that industrial action is taken to be authorised by a protected action ballot
(1) A person who is a bargaining representative for a proposed enterprise agreement may apply to FWA for an order under this item if, before the WR Act repeal day, the person was an applicant specified in an order for a protected action ballot in relation to a proposed collective agreement.
(2) The application must be made within 28 days after the WR Act repeal day.
(3) FWA may order that industrial action that was authorised under section 478 of the WR Act in relation to the proposed collective agreement is taken to be authorised, in relation to the proposed enterprise agreement, by a protected action ballot under subsection 459(1) of the FW Act, if FWA is satisfied that:
(a) on or after 1 March 2009, the person organised or engaged in industrial action, for the purpose of supporting or advancing claims in relation to the proposed collective agreement; and
(b) all such industrial action organised or engaged in by the person was:
(i) authorised by a protected action ballot under section 478 of the WR Act; and
(ii) protected action within the meaning of the WR Act; and
(c) the person did not first organise or engage in such industrial action on or after the WR Act repeal day; and
(d) no collective agreement covering the employees whose employment would have been subject to the proposed collective agreement was approved by those employees before the WR Act repeal day; and
(e) the proposed enterprise agreement will cover those employees; and
(f) the person is genuinely trying to reach agreement in relation to the proposed enterprise agreement; and
(g) it is reasonable in all the circumstances to make the order.
(4) Industrial action that is taken to be authorised because of the operation of subitem (3) is only taken to be authorised in relation to employees who:
(a) will be covered by the proposed enterprise agreement; and
(b) were relevant employees (within the meaning of section 450 of the WR Act) in relation to the proposed collective agreement.
(5) For the purposes of subsection 414(3) of the FW Act, the results of the protected action ballot under that Act are taken to have been declared on the day of the order.
[2] The ASU has been bargaining with the City of Swan for a collective agreement regulating the terms and conditions of employment. That bargaining was initiated and proceeded under the Workplace Relations Act 1996 (WR Act). On 8 May 2009 Deputy President McCarthy made a protected action ballot order under s.462 of the WR Act. 1 Protected industrial action has been taken in reliance on that order. However, the parties have yet to conclude an agreement.
[3] On 1 July 2009 the enterprise bargaining regime provided for in the WR Act was repealed and replaced by a new regime in the Fair Work Act 2009 (FW Act). The ASU is still pressing for a collective agreement. Any collective agreement reached between the parties will be an agreement made under the FW Act. It would seem that industrial action can only be protected action within the meaning of the FW Act if it is authorised by a protected action ballot ordered and conducted pursuant to Division 8 of Part 3-3 of the FW Act. In the absence of an order under s.14A, a union in the position of the ASU would be obliged to seek a fresh authorisation for industrial action through a protected action ballot ordered and conducted under Division 8 of Part 3-3 of the FW Act. Section 14A addresses that situation albeit that it has an effective life of only 28 days from 1 July 2009 in terms of the right to bring an application pursuant to that provision. Section 14A was added as a senate amendment to the Fair Work Bill 2009. The relevant Supplementary Explanatory Memorandum states that s.14A “allow(s) for the limited preservation of protected action ballots under the WR Act after the WR Act repeal day.”
[4] The expression “WR Act repeal day” is defined in s.2 of Schedule 2 to the FW(T&C) Act to mean “the day on which the WR Act repeal commences”. The expression “WR Act repeal” is defined in the same section to mean “the commencement of Schedule 1.” Pursuant to s.2 of the FW(T&C) Act, Schedule 1 of that Act commences on “[t]he day on which Part 2-4 of the Fair Work Act 2009 commences”. Part 2-4 of the FW Act is entitled “Enterprise Agreements” and comprises sections 169 to 257 inclusive. Pursuant to s.2 of the FW Act, sections 41 to 572 inclusive commence on “A day or days to be fixed by Proclamation” albeit that the table in s.2 imposes other restrictions on the commencement day that have no operation in the events that have transpired. A Proclamation by the Governor-General made on 29 June 2009 2 fixed 1 July 2009 as the day on which sections 169 to 281A, amongst others, of the FW Act commenced. In other words, the WR Act repeal day was 1 July 2009.
[5] The present application was made on 1 July 2009, that is, within 28 days after the WR Act repeal day.
[6] I turn to consider the requirements specified in s.14A(3).
[7] It is not disputed that:
• On or after 1 March 2009, the ASU organised industrial action, for the purpose of supporting or advancing claims in relation to the proposed collective agreement.
• All such industrial action organised by the ASU was authorised by a protected action ballot under section 478 of the WR Act; and was protected action within the meaning of the WR Act.
• The ASU did not first organise or engage in such industrial action on or after 1 July 2009, the WR Act repeal day.
• No collective agreement covering the employees whose employment would have been subject to the proposed collective agreement was approved by those employees before 1 July 2009, the WR Act repeal day.
• The enterprise agreement proposed by the ASU will cover those employees.
• The ASU is genuinely trying to reach agreement in relation to the proposed enterprise agreement.
[8] It follows that the requirements in s.14A(3)(a) to (f) are satisfied. The requirement in s.14A(3)(g) is that “it is reasonable in all the circumstances to make the order”. The City of Swan contended that it was not reasonable in all the circumstances to make the order. In summary, it contended that:
• The industrial action that has been taken has had little or no impact and done little harm to the City of Swan (notwithstanding that the City of Swan has limited resources to devote to meeting the costs associated with dealing with the industrial action that has been taken).
• The City of Swan has unilaterally increased the wages of all employees (including the group of supervisors who would be subject to the proposed agreement) on several occasions over the lengthy period that negotiations have been occurring for the proposed collective agreement such that it is paying good wages that are at the upper end of the range for equivalent employees in other local councils. Other entitlements such as superannuation have also been increased.
[9] I am satisfied that it is reasonable in all the circumstances to make the order sought by the ASU. Where an industrial party has been pursuing a collective agreement in conformity with the regime in the WR Act and has, prior to 1 July 2009, been taking protected industrial action pursuant to a secret ballot ordered and conducted under the WR Act, it will ordinarily be reasonable to make an order under s.14A. There is nothing in the circumstances of this case that weights materially against a finding that it is reasonable to make the order. In particular, Mr Sissing for the City of Swan acknowledged that the claims advanced by the ASU on behalf of the relevant employees included a number of non-monetary claims. It is clear that the City of Swan has not conceded all of the claims made by the ASU. In circumstances where the ASU has been pursuing a collective agreement in conformity with the prevailing legislative regime, including taking protected industrial action pursuant to a protected action secret ballot ordered and in conformity with the WR Act, it would, I think, be unfair to deprive the ASU of the right to continue taking industrial action in pursuit of the proposed agreement merely because the legislative regime under which collective agreements are made happened to change on 1 July 2009. The fact that the City of Swan has unilaterally increased wages and other monetary entitlements is not a sufficient basis for depriving the ASU of the right to continue taking protected industrial action in pursued of the proposed enterprise agreement.
[10] Satisfaction of the requirements in s.14A(3)(a)-(g) enlivens a discretion to make an order of the sort specified in s.14A(2). However, it is difficult to conceive of a case where the requirements in s.14A(3)(a) to (g) are met but it is nevertheless not appropriate to exercise the discretion conferred by s.14A(2) to make the order sought. I was satisfied that the order sought by the ASU should be made and an order 3 has issued.
BY FAIR WORK AUSTRALIA
VICE PRESIDENT
Appearances:
Mr G Upham and Ms P Byrne for Australian Municipal, Administrative, Clerical and Services Union.
Mr W Sissing and Ms J Bradbury for the City of Swan.
Hearing details:
2009.
Sydney/Perth Video:
July 2.
1 PR986913
2 F2009L02563
3 PR987645
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