Australian Municipal, Administrative, Clerical and Services Union v Lend Lease

[2014] FWC 5676

[2014] FWC 5676

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v
Lend Lease
(B2014/989)

Water, sewerage and drainage services
COMMISSIONER BISSETT	MELBOURNE, 20 AUGUST 2014

Proposed protected action ballot of employees of Lend Lease.

[1] On 17 July 2014 the Australian Municipal, Administrative Clerical and Services Union (ASU) made an application pursuant to s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order.

[2] The employees to be balloted are those employees to be covered by a proposed agreement with Lend Lease for whom the ASU is a bargaining representative. The employees are responsible for the maintenance and management of Coliban Water.

[3] The application was first heard on 22 July 2014. Lend Lease indicated opposition to the application for a protected action ballot order at that hearing on four key grounds:

• firstly that the ASU is not genuinely trying to reach agreement,



• second that the ASU is not bargaining in good faith,



• third that the proposed industrial action is invalid under the Act, and



• fourth that the ASU does not have rules coverage of the employees in question and therefore is not a bargaining representative and cannot make an application under s.437 of the Act.

[4] As a result of the complexity of the objections I issued directions for the filing of submissions and witness evidence in respect to the application. The application was listed for further hearing on 8 August 2014.

[5] At that hearing I granted permission for Mr Eugene White of Counsel to represent the ASU. Lend Lease was represented by Mr Jack O’Brien of the Australian Industry Group (Ai Group).

[6] 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.

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.

[7] Section 443 of the Act sets out when the Commission must make a ballot order:

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)...

[8] The matters to be determined in this decision are the objections of Lend Lease. The resolution of these objections will determine if the application can be granted and, if it can, what form the order should take.

Genuinely trying to reach agreement

[9] Ms Emma Bagg, an organiser with the ASU, gave extensive and uncontested evidence of the process and progress of bargaining with Lend Lease. This has involved some 14 meetings where a range of matters associated with an agreement have been subject to discussion.

[10] On the basis of the evidence of Ms Bagg, and with no evidence from Lend Lease to the contrary, I find that the ASU is genuinely trying to reach agreement.

[11] I am satisfied that the ASU has articulated its claims and responded to matters put by Lend Lease. To the extent that Lend Lease say the ASU did not respond to a draft agreement it provided on 4 July 2014 I accept that at the subsequent meeting matters became distracted by a discussion on the applicability of the Victorian or Federal Building Construction Codes to the agreement. I do not accept that a failure by the ASU to articulate a detailed response to the proposal of Lend Lease is indicative that it is not genuinely trying to reach agreement.

Bargaining in good faith

[12] Section 443 of the Act does not specify a requirement that a bargaining representative must be bargaining in good faith before the Commission can issue a ballot order. The complaint is that Ms Bagg did not provide a draft agreement in May when she had undertaken to do so.

[13] That Ms Bagg did not do something in bargaining she had agreed to do is not indicative of a failure to bargain in good faith. The entirety of the bargaining process and the conduct of the parties over that period must be considered. Meetings were scheduled, the ASU attended, matters at issue in the bargaining were discussed, views and positions exchanged and further meetings were scheduled.

[14] There is nothing in the conduct of Ms Bagg or the ASU to suggest the ASU was not bargaining in good faith.

Proposed action is invalid under the Act

[15] Lend Lease raise issues with a number of specific items of industrial action proposed by the ASU as set out in the application and the draft order.

[16] The question to be put to employees in the draft order is:

In support of reaching an Enterprise Agreement with Lend Lease, do you endorse the taking of industrial action, which may be taken separately, concurrently or consecutively, described in Schedule A to this Ballot Paper?

[17] Specifically Lend Lease objects to the following items in Schedule A:

18. Attaching, incorporating or distributing Union and industrial campaign related material to outgoing correspondence (traditional or email), Lend Lease materials and Lend Lease displays.

20. Wearing, distributing and posting union campaign material such as t-shirts, badges, written communications and stickers in support of the proposed enterprise agreement.

36. Not responding to non-emergency emails until after 1pm each day and placing an out of office notification stating the following: “I am currently undertaking industrial action because I believe staff should be treated with respect and decency at work. Because of this I will not be responding to emails until after 1pm. If you have any concerns or comments please contact Lend Lease Contract Manager Malcolm Anderson on [email protected].”

38. Not responding to non-emergency voice mail messages until after 1pm each day, and placing a voice mail message which includes the following: “I am currently undertaking industrial action because I believe staff should be treated with respect and decency at work. Because of this I will not be responding to calls until after 1pm. If you have any concerns or comments please call Lend Lease 0439 792 261 and ask to speak with Contract Manager Malcolm Anderson.”

52. Writing messages representing the concerns of Lend Lease staff regarding the EBA negotiations and process on Lend Lease or Coliban Water vehicles.

[18] Lend Lease says that the action in each of these items does not constitute industrial action as defined in the Act and/or it would not be a protected industrial action as it is defacing private property or using the property of Lend Lease in an impermissible manner.

[19] The ASU submits that each of the actions objected to by Lend Lease falls within the definition of industrial action in the Act. It says that the types of industrial action proposed are not new and have been utilised by unions on many occasions.

[20] The ASU also says that because the industrial action may result in damage to property does not negate that it is industrial action. In any event it says that if the tests in s.433 are satisfied the Commission must make the protected action ballot order. If industrial action does result in damage to property then it will not attract the immunity available to protected industrial action.

[21] Section 19 of the Act defines industrial action:

19 Meaning of industrial action

(1) Industrial action means action of any of the following kinds:

(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;

(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

(d) the lockout of employees from their employment by the employer of the employees.

[22] In Re Mornington Peninsular City Shire Council 1 (Re Mornington)an issue under consideration by the Full Bench was if the action proposed was capable of being described as industrial action within the meaning of the Act.

[23] In reference to the definition of industrial action, the majority found that:

[25] In our view, the term “the performance of work” within s.19(1)(b) of the Act is not restricted to how the tasks associated with a particular job are performed. It involves for example when work is performed, where work is performed, how work is performed and the conditions under which work is performed.

[26] Clearly ss.19(1)(a) and (b) of the Act are directed at different conduct. In s.19(1)(a) the conduct must cause a particular result, namely a restriction or limitation on, or a delay in the performance of work.

[27] In s.19(1)(b) of the Act there need be no result from the conduct; there must simply be a ban limitation or restriction on the performance of work or on the acceptance of or offering for work by an employee.

...

[30] Section 19(1)(b) of the Act is therefore directed to both the work the employees do and the circumstances in which they offer to do it.

[24] In John Holland Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and The Australian Workers’ Union² the Full Bench found that:

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.³

[25] I have had regard to each of these decisions in coming to my conclusion as to the questions posed in the proposed ballot order.

[26] One of Lend Lease’s complaints is that traditional mail or email has been paid for by Lend Lease and email is the property of Lend Lease and it ‘won’t be subsiding the [industrial] campaign’ by allowing employees taking industrial action to utilise any of its property.

[27] This complaint has no basis. Lend Lease provides no authority that suggests that utilising the employer’s equipment or property for the purposes of industrial action as is proposed here means the action is not industrial action as defined in the Act. It is inevitably the case that employees will, in some way, use the property of the employer in taking industrial action. It is difficult for employees on a production line to implement a ban on that line without using the employer’s property to do so. It is difficult to see how a bus driver could take industrial action in the form of refusing to collect fares without using the employer’s property (the bus) to drive while implementing the ban. This objection of Lend Lease cannot be a basis on which I determine if the action is industrial action for the purposes of the Act. This reason for rejecting some of the action, on its own, is rejected.

[28] In Re Mornington the majority found that the wearing of campaign clothing ‘is capable of constituting a ban, limitation or restriction on the performance of work...or on the acceptance or offering of work by the employer.’  4 On the basis of this authority I am satisfied that the wearing, distributing or posting union campaign material, etc is industrial action for the purposes of the Act. Item 18 does not offend the definition of industrial action.

[29] With respect to item 36, I am satisfied that the action involved in not answering non-emergency calls constitutes ‘the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work.’ With respect to the inclusion of an ‘out of office’ notification I am satisfied that this is industrial action within the meaning of the Act, in particular that it could constitute ‘a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee.’ In CPSU v Victorian Legal Aid 5Deputy President Smith considered whether the attachment of a footer to emails constituted industrial action.6 He concluded that:

[10] The CPSU also draws to my attention the majority decision in the Mornington Peninsula Shire Council case. I find that the issues in this matter are on all fours with the consideration of the Bench in the Mornington case. Methods of communication evolve over time and I do not believe that the statute should be construed narrowly.

[footnote omitted]

[30] I am satisfied that the proposed action at item 36 comes within the definition of industrial action.

[31] With respect to item 38 I am satisfied that this could constitute industrial action for the same reasons given with respect to item 36.

[32] Item 52 (writing messages on Lend Lease cars), whilst, on its face, appears to be a different kind of industrial action to that in items 36 and 38 above, is actually not of much difference.

[33] In this case the ASU propose to place a campaign message on a car. In Re Mornington the majority defined ‘the performance of work’ (within s.19(1)(b) of the Act) to include when work is performed, where work is performed, how work is performed and the conditions under which work is performed.

[34] The placing of a slogan on a car may well fall within the rubric of ‘the condition under which work is performed’ such that the action may be considered to be industrial action within the meaning of the Act. This being so however the content of the message and the manner in which it is affixed to the vehicle may be relevant in determining if the action, when it occurs, is industrial action.

[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. In making this observation I note the commitment given by the ASU that it does not intend to engage in action which will result in the destruction or damage to property. 7

[36] I am satisfied that the action at item 52 may constitute industrial action within the meaning of the Act.

ASU rules coverage

[37] If the ASU is not a bargaining representative for the employees concerned it cannot make an application or a protected action ballot order. It says it is a bargaining representative because the employees it seeks to ballot are members of the ASU (s.176 of the Act) and it is entitled to represent their industrial interests.

[38] A similar matter was recently considered by a Full Bench of the Commission in Resmed Limited v The Australian Manufacturing Workers’ Union (AMWU) where the Full Bench found:

... Section 176(1)(b) operates subject to s.176(3), which provides that an employee organisation may not be a bargaining representative of an employee in relation to work that will be performed under the agreement unless the organisation is “entitled to represent the industrial interests of the employee” in relation to work that would be performed under the agreement. The expression “entitled to represent the industrial interests of the employee” and similar expressions are used in a large number of provisions in the Act in relation to the rights of employee organisations. The Act does not expressly define when an employee organisation is entitled to represent the industrial interests of employees, but the parties’ submissions proceeded on the premise that such an entitlement only arises when the organisation’s eligibility rules permit it to enrol as members the relevant employees. That is the way the issue has been approached in a number of Federal Court decisions and accordingly for the purpose of this decision we will proceed on the same basis. 8

[footnotes omitted]

[39] To determine if the ASU is a bargaining representative in respect of the proposed agreement it is necessary to determine if it has ‘coverage’ under its rules of the employees of Lend Lease. This requires a consideration of the eligibility and industry rules of the ASU.

[40] In Transport Workers’ Union of Australia v Budget Rent A Car Operations Pty Ltd (Budget Rent A Car) a Full Bench of the AIRC said:

We accept that the conditions of eligibility for membership of a registered organisation define the class or classes of employees whose industrial interests the organisation may represent. This is so even if the conditions of eligibility for membership do not co-extend with the description of the industry in connection with which the organisation is registered. These propositions were established by the High Court 50 years ago and have been applied ever since: R v Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia. The description of industry maybe resorted to, however, for the purpose of resolving an ambiguity in the meaning of the conditions of eligibility: R v Williams; Ex parte Australia Building Construction Employees' and Builders Labourers' Federation. 9

[41] In Australian Manufacturing Workers’ Union (AMWU) v Resmed a Full Bench of the Commission considered the general principles applicable to the interpretation of union eligibility rules. They said, in part, that

If there is ambiguity as to the meaning of words in the eligibility rules, assistance may be sought in the terms of the industry rule (subject to it being understood that the scope of the eligibility rule is not restricted by the scope of the industry rule). 10

[footnotes omitted]

[42] It is apparent, based on these authorities, that the starting point to determine if the ASU has coverage of the particular employees of Lend Lease is the union’s eligibility rule. I agree with the submissions of the ASU on this point that the approach adopted by Lend Lease to consider the industry rule first and then the eligibility rule of the ASU is misconceived.

[43] The eligibility rules of the ASU are found at Rule 5 and, relevant to this matter, state:

Eligibility for Membership

PART I

i. The Union shall consist of an unlimited number of bona fide employees of Municipal County and Shire Councils or other Local Government Authorities or Trusts, Municipal Trusts Water Supply and/or Sewerage Boards or Trusts, Road Boards and other Boards, Corporations, Commissions or Trusts, carrying out or entrusted with the carrying out of works operations or functions similar to those usually or generally performed by Municipal or Shire Councils or other Local Government Authorities before the appointment of such Boards, Corporations, Commissions or Trusts and of employees to contractors to any of such Councils, Authorities, Boards, Corporations, Commissions or Trusts and of such other persons whether employed in the relevant industry or not as have been or are hereafter appointed officers of the Union and admitted as members thereof...

[44] Breaking this part of the eligibility rule down it can be seen that the union consists of an unlimited number of bona fide employees of:

(a) Municipal County and Shire Councils or other Local Government Authorities or Trusts, Municipal Trusts Water Supply and/or Sewerage Boards or Trusts, Road Boards

and

(b) other Boards, Corporations, Commissions or Trusts, carrying out or entrusted with the carrying out of works operations or functions similar to those usually or generally performed by Municipal or Shire Councils or other Local Government Authorities before the appointment of such Boards, Corporations, Commissions or Trusts

and

(c) employees to contractors to any of such Councils, Authorities, Boards, Corporations, Commissions or Trusts

and

(d) of such other persons whether employed in the relevant industry or not as have been or are hereafter appointed officers of the Union and admitted as members thereof.

[emphasis added]

[45] There is no dispute that Lend Lease is a contractor to Coliban Water. Mr John Wright, the Networks Manager Coliban Water, says that Lend Lease is ‘a specialist maintenance and asset management contractor’. 11 Further, he says that Coliban Water is responsible for the ‘management of water and waste water systems’12 within a designated area.

[46] It is not contested that Coliban Water is a Corporation ‘carrying out or entrusted with the carrying out of works operations or functions similar to those usually or generally performed by Municipal or Shire Councils’ or other authority. 13

[47] The ASU does not claim it has coverage of employees of Lend Lease working for Coliban Water on the basis that Lend Lease is a Corporation but rather that Lend Lease is a contractor to Coliban Water which is responsible for the management of water and waste water systems and that Coliban Water is a Corporation carrying out work similar to that performed by a Council or Authority. On this basis it is clear that the employees of Lend Lease fall within the eligibility rules of the ASU.

[48] Lend Lease submits that Coliban Water does not employ anyone directly and has not done so for a number of years. Again Lend Lease misconceives the basis on which the eligibility rule of the ASU should be read.

[49] The ASU do not rely on that part of its eligibility rule that says it has coverage of person appointed as officers of the union to ground its claim for coverage of the employees in question and to the extent that Lend Lease suggests this is the case they are incorrect.

[50] I am satisfied that the ASU has coverage of the employees that work for Lend Lease and who will be covered by the proposed agreement. These workers fall within the scope of ASU’s eligibility rules.

[51] Lend Lease has put forward nothing that suggests that there is any rival contention as to the plain meaning of the words in the ASU eligibility rules such that regard should be had to the industry rule. I see no need to have regard to the industry rule in such circumstances. As indicated in Budget Rent A Car, the description of industry may be used to resolve an ambiguity in the meaning of the conditions of eligibility. If there is no ambiguity, there is no need to resort to the industry rule.

[52] I am therefore satisfied that the ASU has coverage of the employees. The ASU can represent the industrial interests of the employees and therefore has standing to make the application for a protected action ballot order.

Conclusion

[53] An order for a protected action ballot in the form of the draft order filed by the ASU will be issued concurrently with this decision.

COMMISSIONER

Appearances:

E. White of Counsel with E. Burgio of Maurice Blackburn Lawyers for the Applicant.

J. O’Brien with K. Dennis of AiGroup for the Respondent.

Hearing details:

2014.

Melbourne:

July 22.

August 8.

 1 (2011) 210 IR 419.

2 [2010] FWAFB 526.

3 [2010] FWAFB 526 at [19].

 4 (2011) 210 IR 419, [24].

 5   [2013] FWC 1090.

 6   [2013] FWC 1090, [7].

 7   Exhibit ASU3, paragraph 24.

 8   [2014] FWCFB 2418, [10].

 9 (2006) 198 IR 455, [12].

 10   [2014] FWCFB 3501, [34].

 11   Exhibit LL1, paragraph 1.

 12   Exhibit LL1, paragraph 1.

 13   See Water Act 1989 (Vic).

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