Australian Municipal, Administrative, Clerical and Services Union v Electricity Networks Corporation trading as Western Power

[2009] FWA 486

[2009] FWA 486

FAIR WORK AUSTRALIA

DECISION

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

Australian Municipal, Administrative, Clerical and Services Union
v
Electricity Networks Corporation trading as Western Power
(B2009/10726)

Electrical power industry
COMMISSIONER WILLIAMS	PERTH, 1 OCTOBER 2009

Proposed protected action ballot by employees of Electricity Networks Corporaton (trading as Western Power).

INTRODUCTION

[1] This decision relates to an application by the Australian Municipal, Administrative, Clerical and Services Union (the ASU) for an order for a protected action ballot under s437 of the Fair Work Act 2009 (the Act).

[2] The matter was heard before me on 30 September 2009. The respondent does not oppose the making of the order however contested the detail of the wording of questions to be put to the employees.

[3] The applicant provided an affidavit from Mr Burlinson which I advised I accepted. I advised that I was satisfied that the application met the statutory requirements and so under s. 443 I must make a protected action ballot order and would do so.

[4] What remained to be determined was the wording of the questions. At the conclusion of the hearing I directed the parties to provide their respective positions in writing as to the appropriate wording for the questions to be put to the employees. The reason this was significantly an issue was that this is the second ballot order the applicant has sought.

[5] Previously the applicant had been granted a ballot order by myself 1 in March this year. A ballot was conducted and approved various forms of industrial action some of which have been occurring. On 7 July 2009 the applicant was granted an order2 under the Fair Work Act 2009 to the effect that protected industrial action authorised by the earlier ballot order under the Workplace Relations Act 1996 is to be taken to be authorised under the Fair Work (Transitional Provisions and Consequential Amendments ) Act 2009.

[6] It is this unusual background that the respondent submits requires that the questions to be put to the employees in this ballot needs to put in the context of the fact that the employees have previously authorised by the earlier ballot other forms of industrial action that remain available to them. This second ballot will, if supported by the employees in the vote, authorise additional industrial action options.

[7] The respondent submits that this expressly needs to be made clear to the employees. The respondent relies on the decision of VP Watson in National Union of Workers—New South Wales Branch v FreshExchange Pty Ltd 3. At paragraphs [9] and [10] his Honour addresses the legislations focus on clarity as follows:

“The Requirement for Clarity

[9] These provisions are similar but not identical to the corresponding provisions of the Workplace Relations Act 1996. In relation to those provisions a Full Bench of the Australian Industrial Relations Commission in Country Fire Authority v United Firefighters’ Union of Australia said:

“As noted above, the requirement in s.452(1)(a) is that the application for a protected action ballot must include the question or questions to be put to the relevant employees in the ballot, including the nature of the proposed industrial action. If industrial action is approved by a secret ballot, and all other pre-requisites for protected action are present, a written notice to the employer of intended industrial action is required to state the nature of the intended action and the day when it will begin (see s.441(6)). It was submitted by Mr. Parry SC, who appeared with Mr O’Grady for the CFA, that the use of the same words in s.441(6) and s.452(1) requires a similar approach - albeit that the notices are directed on the one hand to an employer, and on the other, to employees. As a matter of construction we believe this is correct. Further, while the intention of the legislature can only be gleaned from the provisions of the legislation in this case, it appears logical that when employees are asked whether to authorise industrial action in a protected action ballot, the nature of the proposed industrial action is expressed clear enough to enable them to make an informed choice.” 1

[10] In my view the legislation requires an application to propose a question and contain other details about the industrial action and other relevant matters such as will permit employees to make an informed choice on whether to authorise the particular action specified in the question. A question which is ambiguous or does not permit such a result does not comply with the requirements for a valid application.”

[8] So the respondent submits in a preamble to the questions to be voted on in this ballot the ballot paper should set out the types of industrial action that were authorised by the previous ballot with an explanation that these forms of industrial action are still available to be taken as protected action (see attachment 1). The applicant opposes this.

[9] The authority relied upon addresses concerns over the need for the employees to be clear on the nature of the industrial action they are being asked to authorise. As the Full Bench concluded the intention of the legislation appears to be that “…the nature of the proposed industrial action is expressed clear enough to enable them to make an informed choice.”

[10] The additional information suggested by the respondent to be included before the questions does not in my view add anything to the clarity of the questions in terms of the nature of the industrial action proposed. What the respondent seeks is some thing different from clarifying the nature of the industrial action. What is sought is additional words that provide a fuller context for the employees, in particular reminding them of other forms of industrial action they have previously voted on. This goes beyond the clarity of the questions in my view. This is akin to previous cases where employers have argued that broader issues such as the history of other parties involvement 4, the claims being pursued in bargaining5 or the ramifications of other legislative schemes for employees6 should be explained in preambles to the questions on the ballot paper. All such proposals when opposed by the applicants have been rejected by the tribunal.

[11] In my view there is nothing in the legislation that supports the inclusions the respondent seek, over the applicants objection.

[12] The applicant does concede that a general note referring to the existence of the previous ballot could be included (see attachment 2). This approach is not inappropriate and given the applicants consent to this I will include this note with minor rewording.

[13] The respondents wording regarding employees involved in public safety issues and emergencies better expresses the concerns which the applicant acknowledged and I will adopt this wording.

[14] I will issue the ballot order and the closing date for voting will be Friday 23 October 2009.

COMMISSIONER

Appearances:

Mr McClean of Counsel for the Applicant

Mr Allen of Freehills for the Respondent

Hearing details:

2009.

Perth:

September 29.

Final written submissions:

Attachment 1

B2009/10726
Australian Municipal Administrative, Clerical and Services Union v Electricity Networks Corporation (trading as Western Power)

Protected industrial action of the following types was authorised by a protected action ballot declared on 15 April 2009 (BP2009/115)

• Bans on overtime for one day.
• Bans on overtime for two days.
• Bans on overtime for one week.
• Bans on overtime for an indefinite period.
• Bans on the issuing and/or processing of permits, licences and the handling of documentation concerning any Capital Works program, for 4 hours.
• Bans on the issuing and/or processing of permits, licences and the handling of documentation concerning any Capital Works program, for 24 hours.
• Bans on the issuing and/or processing of permits, licences and the handling of documentation concerning any Capital Works program, for 48 hours.
• Bans on the issuing and/or processing of permits, licences and the handling of documentation concerning any Capital Works program, indefinitely.
• Non-compliance with Western Power policies that limit employees from speaking to the media for 4 hours.
• Non-compliance with Western Power policies that limit employees from speaking to the media for 24 hours.
• Non-compliance with Western Power policies that limit employees from speaking to the media for 48 hours.
• Non-compliance with Western Power policies that limit employees from speaking to the media indefinitely.
• Stoppages on the performance of all work for 4 hours.
• Stoppages on the performance of all work for 24 hours.
• Stoppages on the performance of all work for 48 hours.
• An indefinite stoppage on the performance of all work for 4 hours.
In addition to the above types of protected industrial action the ASU is now seeking your endorsement for additional types of protected industrial action.
In this new ballot please indicate whether for the purpose of supporting or advancing claims made in respect of the proposed replacement enterprise agreement with your employer, do you also endorse the following types of protected industrial action being taken by ASU members?

• Ban on providing urine samples for an indefinite period	YES / NO
• Ban on having any involvement with the performance appraisal and development plan (PADP) process for an indefinite period	YES / NO
• Ban on the performance of higher duties (acting) for an indefinite period	YES / NO
• Ban on the participation in Western Power delivered briefings and/or training for an indefinite period	YES / NO
• Ban on the delivery of any training by employees that do not possess formal training qualifications for an indefinite period	YES / NO
• Ban on logging on to Western Power computers and/or systems for a period of four (4) hours, but not involving employees whose primary role is responding to public safety issues and emergencies	YES / NO
• Ban on the non-emergency switching of high voltage plant for a period of one (1) day	YES / NO
• Ban on the collection of data and/or the processing of documentation associated with cost recovery for damage to property for an indefinite period	YES / NO
• Ban on the utilisation of newly introduced technology for an indefinite period, but not involving employees whose primary role is responding to public safety issues and emergencies	YES / NO
• Ban on the answering of telephones for a period of one (1) hour, but not involving employees whose primary role is responding to public safety issues and emergencies	YES / NO
• Ban on the issuing of purchase orders for one (1) day	YES / NO
• Stoppage on the performance of all work for one (1) hour	YES / NO
• Ban on overtime for six (6) hours	YES / NO
• Ban on the ordering or processing of orders for stationary and ancillary materials	YES/NO

Attachment 2

Questions to be put:

For the purpose of supporting or advancing claims made in respect of the proposed replacement enterprise agreement with your employer, do you endorse the following types of protected industrial action being taken by ASU members?

• Ban on providing urine samples for an indefinite period
• Ban on having any involvement with the performance appraisal and development plan (PADP) process for an indefinite period
• Ban on the performance of higher duties (acting) for an indefinite period
• Ban on the participation in Western Power delivered briefings and / or training for an indefinite period
• Ban on the delivery of any training by employees that do not possess formal training qualifications for an indefinite period
• Ban on logging on to Western Power computers and / or systems for a period of four (4) hours excluding employees whose primary role involves responding to public safety issues and emergencies
• Ban on the non-emergency switching of high voltage plant for a period of one (1) day
• Ban on the collection of data and / or the processing of documentation associated with cost recovery for damage to property for an indefinite period
• Ban on the utilization of newly introduced technology for an indefinite period excluding employees whose primary role involves responding to public safety issues and emergencies
• Ban on the answering of telephones for a period of one (1) hour, excluding employees whose primary role involves responding to public safety issues and emergencies
• Ban on the issuing of purchase orders for one (1) day
• Stoppage on the performance of all work for one (1) hour
• Ban on overtime for six (6) hours
• Ban on the ordering or processing of orders for stationary and / or ancillary materials

Nb. THESE QUESTIONS ARE ADDITIONAL TO THE PROTECTED INDUSTRIAL ACTIONS WHICH WERE APPROVED IN THE PROTECTED ACTION BALLOT DECLARED BY THE AUSTRALIAN ELECTORAL COMMISSION ON15^th APRIL 2009

 1  PR986239

 2   2009 FWA 5

 3   2009 FWA 221

 4   PR 981430 para 91 to 96

 5   PR 982025 para 12 and 13

 6   2009 FWA 187 paras 63 to 71

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<Price code A, PR989637>