Australian Municipal, Administrative, Clerical and Services Union v Launch Housing

[2016] FWC 5685

[2016] FWC 5685

FAIR WORK COMMISSION

DECISION

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

Australian Municipal, Administrative, Clerical and Services Union
v
Launch Housing
(B2016/836)

COMMISSIONER BISSETT MELBOURNE, 15 AUGUST 2016

Proposed protected action ballot of employees of Launch Housing who will be covered by the proposed agreement and are members of the ASU.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by the Australian Municipal, Administrative, Clerical and Services Union (ASU) for a protected action ballot order in relation to certain employees of Launch Housing(the Respondent). The application was made on 1 August 2016.

[2] Section 443(1) of the Act states:

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.

[3] Section 437 of the Act states:

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 the 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.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(a) a greenfields agreement; or

(b) a multi-enterprise agreement.

(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.

Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).

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.

(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and

(b) either:

(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

Documents to accompany application

(6) The application must be accompanied by any documents and other information prescribed by the regulations.

The Question

[4] Following receipt of the application from the ASU, the Respondent indicated that it was not convinced that the questions asked in the ballot meet the definition of industrial action in s.19 of the Act. Following receipt of this, I wrote to the ASU and advised that the application would be listed for hearing. I also advised that, on a preliminary view, I was not convinced that the action specified in a number of Parts of the question met the definition of industrial action taking into account the most recent authorities 1 on that subject matter.

[5] Subsequent to this correspondence from the Commission, the ASU lodged an amended application.

[6] A hearing with respect to the application was held on 11 August 2016.

[7] At the hearing of the application the Respondent indicated that it was not convinced that Parts 1, 2, 3 and 11 of the questions to be put to ballot were industrial action such that they came within the definition of industrial action in the Act.

[8] With respect to the amended application and in respect of Parts of the question not put in contention by the Respondent, I am satisfied that Parts 4, 5, 6, 7, 8 and 15 constitute industrial action such that they may be included in the ballot. I reach this conclusion for similar reasons expressed in Australian Nursing and Midwifery Federation v Nillumbik Shire Council. 2 As I observed in that decision, having constrained the industrial action by specifying what would occur during that action, should the action be taken, it will only attract the protection in the Act if the activities are undertaken.

[9] I am also satisfied that Parts 9, 10, 12, 13, 14 and 16 of the proposed question are industrial action for the purposes of the Act such that they may be subject to the ballot.

[10] It falls therefore to determine if the remaining Parts of the question are industrial action as defined in the Act such that the ballot order might be issued. Those Parts are:

1. Indefinite or periodic industrial action in the form of not complying with restrictions on making comment or distributing information to the public clients or the media;

2. Interrupting work periodically, over an indefinite period or for specified periods in order to type or re-type the following statement in or for the purpose of including in each email to be sent the following statement: “The following is authorised protected industrial action under the Fair Work Act 2009: “I’m taking protected industrial action because I am bargaining for fair pay and conditions for all workers at Launch Housing. Thanks.” ”;

3. Periodic bans or a ban for an indefinite period or for specified periods on the sending of work related emails that don’t contain the statement mentioned in Question 2 above; and
11. Interrupting or stopping work over an indefinite period or for specified periods in order to place ASU approved posters on the outside walls of any Launch Housing building;

Part 1

[11] During the hearing the ASU advised that it did not press ‘the media’ as specified in Part 1.

[12] The Respondent submits that making comment or distributing information to the public is work undertaken by specified senior staff and those in the media or communications area of the Respondent. The ASU says that the position descriptions for the Respondent require staff to engage in advocacy 3 and to comply with the Respondent’s policies. The Respondent’s Code of Conduct Policy requires staff to maintain ‘a high standard of conduct and work performance…in dealing with…members of the public.’4

[13] I am satisfied that the ‘advocacy’ referred to is not general advocacy to the public but is advocacy to other agencies and governments on behalf of homeless people. Further, an obligation to comply with a code of conduct policy, which is broad in nature, cannot be taken to imply that the work done by employees involved in the ballot includes making comment or distributing information to the public.

[14] I am therefore satisfied that the work of employees to be balloted does not include commenting, making comment or distributing information to the public. Any action with respect to doing such things cannot, therefore, be considered industrial action within the meaning of s.19 of the Act. It shall be removed from that part of the question.

[15] The Respondent did raise some concern as to vulnerability of its clients and concerns for their health and welfare if inappropriate information is provided to them. To this extent I reminded the parties of the ‘carve out’ from immunity for protected industrial action contained in s.415 of the Act. I am satisfied that Part 1 of the question can be subject to ballot but it is the responsibility of those engaging in any industrial action arising from the ballot to ensure that the action is properly taken to maintain its protected status.

Parts 2 and 3

[16] The Respondent says that employees do not have authority to alter the ‘footer’ on emails to include any particular wording. This, it says, is restricted to IT staff.

[17] The ASU says that the action to be taken is a stoppage of work for the purpose of adding additional wording to emails.

[18] I am satisfied that the normal course of work of the employees involves them communicating by email. By adding additional wording to the emails, they are performing work ‘in a manner different from that in which it is customarily performed’ (s.19(1)(a) of the Act).

[19] I am satisfied that a ban on sending emails that do not contain the specified statement is ‘a ban, limitation or restriction on the performance of work by an employee’ (s.19(1)(b) of the Act).

Part 11

[20] The Respondent says that it does not own its properties and there are limitations (presumably through its lease contracts) on signage etc. on those properties.

[21] The ASU submits that the industrial action involves a stoppage or work with a specified purpose.

[22] I agree with the submissions of the ASU and, for similar reasons set out above, I am satisfied that it can form part of the question to be asked.

[23] In Australian Municipal, Administrative, Clerical and Services Union v Lend Lease 5 I observed that:

[35] Section 415 of the Act makes clear that the immunity provisions granted to protected industrial action do not extend to ‘wilful or reckless destruction of, or damage to, property’. If the industrial action proposed by item 52 results in destruction or damage to property the action will not be protected. But that does not mean it is not ‘industrial action’. Whether damage occurs or not cannot be known now. The method by which the proposed action in implemented will be crucial to this…

[24] Such an observation is apposite in this instance and should be borne in mind by those taking industrial action arising from the ballot should it succeed.

Conclusion

[25] I am satisfied that an application for protected industrial action has been made pursuant to s.437 of the Act. I am also satisfied that the ASU has, and is, genuinely trying to reach agreement.

[26] I am satisfied therefore that the requirements of s.443(1) of the Act have been met and that, accordingly, an Order must be made.

[27] A protected action ballot order 6 will be made today which includes the questions posed by the ASU with the amendment to Part 1 of the questions as set out in this decision.

COMMISSIONER

Appearances:

M. Harding, of counsel, for the Australian Municipal, Administrative, Clerical and Services Union.

J. Andrews with A. Keenan for Launch Housing

Hearing details:

2016.

Melbourne:

August 11.

 1   Ambulance Victoria v Untied Voice [2014] FCA 1119, United Firefighters Union of v Easy [2013] FCA 763; and Independent Education Union of Australia v All Hallows’ School Limited T/A All Hallows’ School and others [2016] FWCFB 262.

 2   [2016] FWC 3664.

 3   Exhibit A1, attachment LDP-3.

 4   Exhibit A1, attachment LDP-1, paragraph 5.2(i).

 5   [2014] FWC 5676.

 6   PR583798.

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