Australian Municipal, Administrative, Clerical and Services Union v Mater Misericordiae Limited T/A Mater Group
[2019] FWC 6811
•3 OCTOBER 2019
| [2019] FWC 6811 |
| 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
Mater Misericordiae Limited T/A Mater Group
(B2019/1144)
| COMMISSIONER HUNT | BRISBANE, 3 OCTOBER 2019 |
Proposed protected action ballot of employees of Mater Misericordiae Limited T/A Mater Group.
This decision concerns an application by the Australian, Municipal, Administrative and Clerical Services Union, the Queensland Together Branch of the ASU (ASU) for a protected action ballot order. The application has been made under s.437(1) of the Fair Work Act 2009 (the Act) in relation to certain employees of Mater Misericordiae Limited T/A Mater Group (Mater).
The scope of employees to be covered by a proposed enterprise agreement is the combination of employees presently covered by the Mater Private Hospitals’ Allied Health Employees’ Enterprise Agreement 2015 and the Mater Health Practitioners’ Enterprise Agreement 2016 – 2019. Both agreements have reached their nominal expiry date, and it is the parties’ intent to complete bargaining for a single enterprise agreement. The ASU is not the sole union involved in the bargaining.
Mater opposed the application on the grounds that the ASU has not been, and is not, genuinely trying to reach agreement pursuant to s.443(1)(b) of the Act, primarily on the basis that the ASU has not yet provided a “considered response to claims relating to entire Parts of the [proposed] Agreement”. It also raised a number of other objections, detailed in this decision.
Legislative Context
Section 443 of the Act sets out when the Fair Work Commission (the Commission) must make a protected action ballot order. Section 443 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.
(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).
(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.
(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.
(4) If the FWC 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 the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and
(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.
(5) If the FWC 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.”
Hearing
The application was made on 30 September 2019 and heard on 2 October 2019. Section 441(1) of the Act prescribes the following:
“441 Application to be determined within 2 days after it is made
(1) The FWC must, as far as practicable, determine an application for a protected action ballot order within 2 working days after the application is made.”
While it was possible to hear the matter within two days of the application being filed, it was not practicable to determine the matter within two days. At the conclusion of the hearing on 2 October 2019, I informed the parties I would determine the application as soon as practicable.
The ASU was represented by Mr Michael Thomas, Director Industrial Services, and Ms Angela May, Industrial Organiser. Mater was represented by Mr Adrian Langford, Manager Industrial Relations, together with Ms Abbey Platen, Industrial Relations Advisor, and Ms Moira Roosemale-Cocq, Senior Industrial Relations Advisor. Evidence was given by Mr Langford and he was cross-examined.
Issues in dispute
Before I can make the protected action ballot orders sought by the ASU, one of the matters about which I must be satisfied is that the ASU has been, and is, genuinely trying to reach an agreement with Mater.
Apart from the contested matters set out in [3], there is no dispute between the parties and I am satisfied on the evidence that the statutory requirements for the protected action ballot orders sought by the ASU have been met.
Principles regarding genuinely trying to reach an agreement
As to the question of whether a bargaining representative has been, and is, genuinely trying to reach an agreement, Flick J said the following in JJ Richards & Sons Pty Ltd v Fair Work Australia:[1]
“58. It is ultimately concluded that s 443(1)(b) is to be construed such that Fair Work Australia cannot reach a state of satisfaction that an “applicant ... is ... genuinely trying to reach an agreement with the employer” unless:
·an applicant has approached the employer and informed the employer of the general ambit of that for which agreement is sought; and
·the employer has foreshadowed – even in the most general of terms – its attitude as to the proposed agreement.
More may be required. Much may well depend upon the factual scenario in which the terms of s 443(1)(b) are to be applied. But such a minimum statement of that which is required is sufficient to dispose of the present Application. Contrary to the submissions advanced on behalf of the Applicants, the terms of s 443(1)(b) do not require:
·bargaining to have commenced within the meaning of and for the purposes of s 173, found within Part2-4, of the Fair Work Act.
59. So much, it is concluded, follows from the natural and ordinary meaning of the phrase “trying to reach an agreement ...”. It is difficult to conclude that any person can try to reach an agreement with another in the absence of a disclosure of that for which consensus is sought. One person may wish to reach an agreement with another. But, until the general content of the proposed agreement is disclosed, it cannot be said that he has even attempted to reach an agreement. Until disclosed, it is not known whether the other person will readily embrace the proposed agreement or shun it or (perhaps) embrace the concept of an agreement but wish to vary one or other of its terms. Until disclosed, the person seeking agreement has not even tried to solicit the response of the other. Unless the disclosure is genuinely with a view to reaching agreement, it could well be said that the attempt to reach an agreement falls short of a person even trying to reach agreement. The addition of the word “genuine” – on one approach to construction – perhaps adds little. But the addition of that term serves to emphasise the importance of a person actually trying to solicit agreement. Until a proposed agreement has been disclosed to the prospective parties, and a response solicited, an applicant has not even tried to reach agreement – let alone genuinely tried to reach agreement.
60. The Transport Workers’ Union, in the present proceeding, satisfied that requirement by writing to J.J. Richards on 24 December 2010. Rightly or wrongly, J.J. Richards indicated its response in the terms it did in its letter dated 7 January 2011. That exchange of correspondence was sufficient to satisfy the precondition to the exercise of the power conferred by s 443(1).”
In Total Marine Services Pty Ltd v Maritime Union of Australia[2], the Full Bench expressed the following views about s.443(1)(b):
“[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.
[32] We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement. At the very least one would normally expect the applicant to be able to demonstrate that it has clearly articulated the major items it is seeking for inclusion in the agreement, and to have provided a considered response to any demands made by the other side. Premature applications, where sufficient steps have not been taken to satisfy the test that the applicant has genuinely tried to reach an agreement, cannot be granted.”
The Full Bench in Esso Australia Pty Ltd v AMWU & Ors[3] made the following observations about paragraphs [31] and [32] of the earlier Full Bench decision in Total Marine Services Pty Ltd v Maritime Union of Australia:
“[35] For our part, for reasons we articulate later, we agree with the observations in paragraph [31] and the first three sentences of paragraph [32] of Total Marine, set out above. We note that the observations which follow the first three sentences in paragraph [32] are obiter and although we do not consider that they should be understood as attempting to establish any binding decision rule, nonetheless they are, with respect, somewhat inconsistent with the earlier expressed proposition (with which we agree) that it is not useful to articulate any alternative test or criteria to the words of s.443(1)(b). We note that similar reservations were expressed by the majority of the Full Bench in JJ Richards and Sons Pty Ltd v TWU (JJ Richards No.1) and by the Full Bench in Farstad Shipping (Indian Pacific) Pty Ltd v MUA (Farstad).”
A useful examination of the consideration required in Esso was made by Saunders C in Telum:[4]
“In light of these authorities, I will proceed on the basis that whether an applicant “has been, and is, genuinely trying to reach an agreement” is a question of fact to be decided having regard to all of the facts and circumstances of the particular case. No one factor is necessarily determinative of the question of whether an applicant is, or has been, genuinely trying to reach an agreement. No alternative test or criteria to the words of s.443(1)(b) should be applied. In addition, no specific stage must be reached in the negotiations in order for there to be a finding that an applicant is, and has been, genuinely trying to reach an agreement with the employer.” [references omitted].
Temporal consideration
Section 443(1)(b) of the Act requires the Commission to be satisfied, in this instance, that the ASU “has been, and is,” genuinely trying to reach an agreement with Mater. To determine “has been”, regard would need to be had to the conduct of the ASU as a bargaining representative and applicant in a historical context. To determine “and is”, regard would need to be had to present conduct, including up until and during the hearing of the application.
Arguably, even if the Commission reserved a decision on an application, if communication was received from the applicant to soften a position where the Commission held a preliminary view that an order might not be able to be made, on receipt of the correspondence, and before a decision is issued, regard should be had to the correspondence.
Relevant Facts and Circumstances
The application for protected action ballot orders relate to an enterprise agreement which the ASU, together with United Voice are seeking to negotiate on behalf of each union’s members with Mater.
Mater, the ASU and United Voice, and member employees of each of the unions, together with individual employee bargaining representatives have been bargaining for a new enterprise agreement since June 2019. The first bargaining meeting was held on 18 June 2019 and there have been eight fortnightly meetings to-date.
Evidence and submissions of Mater
Mr Langford contended that Mater had been and continues to bargain with the ASU in good faith. He estimated that it might take a further three fortnightly meetings to “naturally conclude bargaining.”[5] He stated that bargaining had not reached its natural conclusion and that while 15 claim items are agreed in principle, approximately 38 claim items are still listed as either ‘work in progress’ or ‘yet to be discussed’, and approximately two claim items are listed as ‘agree to disagree’.
He stated that the ASU has not heard, considered and responded to Mater’s claim items relevant to the following parts of the proposed agreement:
(a) Part 3 – Wages and Salary Related Matters;
(b) Part 5 – Hours of Work (only partially discussed);
(c) Part 6 – Professional Development Support; and
(d) Part 8 – Recall.
On 14 September 2019, Commissioner Booth issued a Consent Order requiring the ASU to stop unprotected industrial action that it had taken in connection with the proposed agreement.[6]
Contention that the ASU has not and is not genuinely trying to reach an agreement
Mr Langford contended that the ASU has not and is not genuinely trying to reach an agreement with Mater. The decision in Total Marine Services Pty Ltd v Maritime Union of Australia[2009] FWAFB 368 was cited, and it was submitted that the present application was premature given the ASU have not yet provided a considered response to claims relating to entire parts of the proposed agreement, and there is still bargaining on a number of claim items to occur.
It was submitted that Mater’s wage offering has not yet been communicated, and accordingly the ASU has not yet been made aware of it, it has not considered it, and it has not responded. It was stated that it was an agreed position between Mater and the ASU that bargaining on wage-related claim items would occur after the natural conclusion of bargaining on non-wage related claim items.[7]
It was submitted by Mater that it and the ASU continue to bargain in good faith in relation to a number of claim items, and bargaining on those items has not yet concluded. Mater considers that bargaining on those items is at a developmental stage.
Contention that protected industrial action may cause significant harm to patients and Mater
It was submitted that a number of the proposed ballot questions may adversely impact levels of patient care, could potentially cause significant personal harm to affected persons, and further, the action could provide significant reputation, legal and economic consequences to Mater. It was submitted that any questions put to ASU members to be balloted should be proposed in a way that limits and/or mitigates the potential consequences of arising action relevant to ss.423, 424 and 426 of the Act.
Contention that some ballot questions are ambiguous
It was submitted that a ballot question asking members to approve industrial action including a ‘refusal to complete all paperwork’ is ambiguous and requires further sufficient detail to describe the industrial action in such a way that employees are capable of responding to it. It was submitted that ‘paperwork’ takes many forms, and employees would require clear instruction on the operation of this question.
Further, it was submitted that a proposed question referring to an ‘unlimited amount of bans’ was ambiguous.
Request for seven working days’ notice of industrial action
Mr Langford contended that given the ambiguity of ‘unlimited amount of bans’, and the potential impact any industrial action arising from such proposed questions would require the ASU to provide to Mater seven days’ notice to enable Mater to make preparations to deal with the effects of the industrial action.
Mr Langford stated that the proposed ballot questions (4, 5, 6, 9, 10, 11, 12 and 13) have the potential to adversely impact the health, safety and well-being of patients and/or to adversely impact administration of patient care, including the maintaining of adequate medical records.
Mr Langford stated that there was the potential for there to be exceptional circumstances for Mater in dealing with such proposed industrial action in order to meet its high volume and complex, medical and legal obligations. It was stated that such a response cannot be fully anticipated at this time, given the ambiguous nature of the proposed questions.
Mr Langford was invited by me while he was giving evidence to expand upon Mater’s concerns about only being provided with three working days’ notice pursuant to s.443(5) of the Act, and Mater’s contention that it should be afforded seven working days’ notice. Mr Langford declined the Commission’s invitation to give evidence on this issue.
During oral submissions he was again invited to return to the witness box to give evidence to the Commission on this issue, which he declined.
Submissions of the ASU
The ASU did not call evidence in this application, but Ms May did address some of the Commission’s questions from the bar table. On each occasion she did this, I inquired of Mater if it agreed Ms May’s contentions. I have taken into account that Ms May’s submission was not sworn evidence.
Contention that the ASU has been and is genuinely trying to reach an agreement
In support of its contention that it has been and is genuinely trying to reach agreement, the ASU referred to minutes of bargaining meetings where the following was recorded:
(a) “31 July 2019
2.2 The bargaining group reviewed and discussed proposed changes to Part 1 & Part 2 (preliminary maters and basis of employment) of the draft HP EA. Agreement in principal was achieved on a number of matters and discuss will continue for items that require further consideration.”
(b) “21 August 2019
2.2 The bargaining group reviewed and discussed proposed changes to the remainder of Part 2 and Part 4 (basis of employment and leave and public holidays) of the HP EA working draft. Agreement in principle was achieved on a number of matters.”
(c) “28 August 2019
4.1 The bargaining group reviewed and discussed proposed changes to Part 7, 9, 10, 12, 13, 14, 15 & 16 of the HP EA working draft. Union representatives and employee representatives provided feedback and requested further clarification on draft clauses. Agreement in principle was achieved on a number of matters.”
Where the ASU was criticised by Mater for prematurely making the application where Mater considered that bargaining had not concluded, the ASU pointed out that in a communication with employees to be covered by the proposed agreement, Mater has stated that it is expected to commence an access period with employees in mid-November 2019 to vote upon an agreement. This communication was sent by Mater to relevant employees on 23 September 2019.
The ASU log of claims served on Mater at the commencement of bargaining lists 11 items as follows:
1. Increased pay
2. Access to Time in Lieu and Overtime
3. Access to Flexible Working Hours
4. Increased Penalty Rates
5. Choice of Superannuation Fund
6. Access and Support for Professional Development
7. Improved Career Progression Opportunities & Access to Higher Duties
8. More Non-Clinical Time
9. Increased Maternity and Paternity Leave
10. Improved Casual to Permanent Conversion Process
11. Improved case loads.
In questioning from me, Ms May, who had been present at bargaining meetings, said that relevant to the claim of increased pay, this has not been clearly articulated by the ASU, however she did think that she may have mentioned at one meeting that the claim was for 3.5% increases per annum, following on from a claim made by United Voice. Mr Langford appropriately informed the Commission that the working document of the proposed agreement from meeting number five demonstrates that the ASU, together with United Voice proposed a pay increase of 4% per annum over three years, with back pay to 31 August 2019. All working documents of the proposed agreement were provided to the Commission by Mater immediately following the hearing.
Relevant to item two within the ASU log of claims, it was submitted that there had been some discussion on extant entitlements to time in lieu and overtime, but a concession was made that the discussions during the bargaining did not extend to a specific claim of the ASU on the topic. Mater contended that this claim had not been properly articulated. Having reviewed the working document of the proposed agreement following the hearing, it is noted that comment “AP61” states, “LOGS OF CLAIMS TU – Access to OT”, and comment “AP62” states, “LOGS OF CLAIMS TU & AH – Access to TOIL”. ‘TU’ refers to ‘Together Union’, the applicant in these proceedings.
On the ASU claim of flexible working hours, Ms May stated that she was not sure if this topic had been advanced, other than in meeting two where the log of claims was restated. Mater contended that this claim had not been properly articulated. Having reviewed the working document of the proposed agreement following the hearing, it is noted that comment “AP10” states, “LOGS OF CLAIMS TU – Access to flexible working hours”.
On the ASU claim of increased penalty rates, this claim relates to casual loading being a clear 25% loading, instead of some employees receiving 25% and others 23%. Ms May stated that this had been discussed during bargaining and it is clear that it has been discussed as it is referenced within the working document of the proposed agreement at clause 2.4.3.
Relevant to the Choice of Superannuation Fund claim, Ms May stated that each time the request for choice of fund is made, Mater says no, as it prefers its own fund. The existing clause states:
“3.6.1 Each Health Practitioner covered by this Agreement will have contributions from Mater, paid to Mercy Super Fund (or its successor in title) for so long as the Fund complies with the Superannuation Guarantee (Administration) Act 1992 (Cth) or any replacement act. For the sake of clarity, the compulsory Employer contribution is calculated in accordance with the legislation based on ordinary time earnings.”
There is a comment “AP25” in the working document of the proposed agreement that reads: “MFM + TU – Choice of Superannuation Fund”. I read that to mean that it was noted by Mater that the applicant seeks choice of superannuation fund for its members.
Ms May conceded that relevant to professional development, this claim has not been articulated in detail. Mater contended that this claim had not been properly articulated. Having reviewed the working document of the proposed agreement following the hearing, it is noted that comment “AP63” states, “LOGS OF CLAIMS: UV + MFM – PDA to increase from $1500 to $2101 per annum + Temp employees with more than 12 months service to be eligible for PDA. MFM – PDA roll over if unused. TU – Upfront payment for PDA rather than reimbursement + increased support for PD. AH – Improved processing, approval and payment of PDA & PDL.”
On the claim of improved career opportunities, Ms May stated that this is relevant to higher duties and this claim has been articulated to Mater. Mater contended that this claim had not been properly articulated. Clause 3.4, Higher Duties of the proposed agreement has no changes to it from the existing agreements, nor any notated comments.
Relevant to claim 8, more non-clinical time, Ms May stated that this was raised by individual employee bargaining representatives at the last bargaining meeting. Mater contended that this claim has not been articulated by the ASU.
Relevant to the ASU’s claim of increased maternity and paternity leave, Ms May thought that the ASU may have articulated an increase of one week or two weeks, but was not sure at the time of the hearing. Mater conceded that a claim had been articulated by the ASU during bargaining. Comment “AP27” of the working document of the proposed agreement states, “LOGS OF CLAIMS: TU – 14 weeks paid maternity leave + 2 weeks paid paternity leave.”
Relevant to the ASU’s claim of improved casual to permanent conversion process, Mater conceded that a claim had been articulated by the ASU during bargaining. Comments “AP23” and “AP24” within the working document of the proposed agreement do not deal with claims made by the ASU, but do relevant to United Voice, MFM and an individual employee bargaining representative.
As to the last claim on the ASU’s log of claims, the parties were agreed that individual bargaining representatives discussed improved case loads during bargaining.
It was submitted by the ASU that simply because Mater was driving the direction of discussions during bargaining, and simply because not all of the ASU’s claims had not yet been discussed, it did not equate to the ASU failing to have articulated or properly put its claims. It was submitted that time had been spent in bargaining responding to Mater’s claims, including Mater wanting the on-call rate paid to employees to be a fixed rate, whereas the ASU wanted the rate to be indexed over the life of the proposed agreement. Similarly, relevant to radiology fees, the ASU has raised concerns during bargaining relevant to Mater’s bargaining claims.
Contention by Mater that protected industrial action may cause significant harm to patients and Mater
It was submitted that Mater’s concerns that proposed industrial action taken as a result of a success ballot may cause significant harm etc. is made prematurely. It was submitted that any such concern relevant to ss. 423, 424 and 426 of the Act could only be made relevant to action already subject to a protected action ballot order and notified under s.414 of the Act. It was stated that those things needed to have occurred before any such concern can arise.
Contention that some ballot questions are ambiguous
The ASU contended that Mater’s concerns regarding ambiguity of the questions to be put in the ballot order are unfounded. It was submitted that “all paperwork” is unambiguous. Any concern Mater has with questions relating to unlimited bans of up to 24 hours are unremarkable.
During the hearing some of the questions within the draft order were amended by the ASU with the Commission’s assistance and with the input of Mater.
Request for seven working days’ notice of industrial action
The ASU submitted that it is incumbent on Mater to detail the exceptional circumstances that justify a period of notice greater than three working days, and Mater has failed to do so, even on the invitation of the Commission to provide such evidence. Question 13, that being a question to be put to members to authorise stoppages of work for up to 12 hour periods, providing Together ASU give the employer 7 days’ notice has been prepared at the applicant’s initiative. That is, without any request by Mater, or any suggestion by the Commission, the ASU has determined that the giving of 7 days’ notice is appropriate in the circumstances for stoppages of work for up to 12 hour periods.
Consideration
I have had regard to all of the facts and circumstances of this case.
The bargaining process between Mater and its relevant employees commenced in June 2019. The ASU communicated its log of claims to Mater in writing. The log of claims does not articulate the claims and merely provides broad headings of the claims.
Having reviewed the working document of the proposed agreement, I am satisfied that most of the ASU’s log of claims has been appropriately articulated during the bargaining meetings. I have had regard to the submissions made by the ASU that it is Mater who is effectively controlling the parts of the proposed agreement to be discussed at each meeting, and in my experience, this is not an unusual direction taken by parties to ensure that appropriate and like clauses are explored. Some clauses and therefore claims, sometimes take less priority over clauses where agreement can be achieved.
While it could be said that the ASU could have and should have properly articulated in writing the details of each claim within the log of claims, or proposed clauses within the proposed agreement, in my view, they are getting on with the job of responding to Mater’s claims while addressing the ASU’s claims ‘on the run’. There does not appear to me to have been significant time allocated during bargaining to hear from the ASU its articulated claim, other than in meeting two when the parties’ logs of claims were tabled and discussed.
I accept that the ASU did not expect Mater to by, mid-November 2019, propose that it might have an agreement ready for a vote of employees. It was submitted by the ASU that the taking of protected industrial action is the only weapon available to it to improve conditions, and during the hearing I noted that it is within Mater’s prerogative to take a proposed agreement to vote whether it is endorsed by the ASU or not. It is not clear if Mater will, in fact, take a vote to employees by mid-November 2019; it was simply foreshadowed as a possibility.
I have not had any regard to the fairness between the parties. That is not the test within s. 443 of the Act. The test is a question of fact to be decided.
I consider that the ASU has provided to Mater its general ambit or general content of the terms it seeks for its members under the proposed agreement. It has not been definitively articulated, that is true. That is, clauses have not been drafted for review by the bargaining group. Nevertheless, Mater representatives should have, on the evidence before me, a general understanding of the claims pressed by the ASU, including the wages claim of 4% per annum.
It would have been helpful to have had the working documents of the proposed agreement available during the hearing. I consider it would have afforded the parties and the Commission clarity on what has been discussed during the eight meetings. Both parties had available to it the documents, so it is not a criticism of any single party to these proceedings.
Relevant to the concern Mater holds that proposed industrial action may cause significant harm to patients and Mater, that is a matter that can only be considered if protected industrial action is authorised and taken. Section 423 of the Act makes it clear that the Commission may make an order suspending or terminating protected industrial action that is being engaged in, if certain requirements are met [my emphasis].
Any ambiguity surrounding some of the questions proposed by the ASU were addressed during the hearing. I am satisfied that the questions posed by the ASU are not ambiguous and they are capable of being voted upon by relevant members of the ASU to be covered by the proposed agreement.
There was insufficient evidence lead by Mater to satisfy the Commission that pursuant to s.443(5) there are exceptional circumstances justifying the period of written notice to be given by the ASU to Mater to be any more than three working days. I am satisfied that if relevant ASU members authorise the taking of stoppages of work at question 13 of the proposed ballot order, there are exceptional circumstances justifying the period of notice to be provided by the ASU to Mater to be seven working days. The ASU is commended for making the application relevant to this question to be put to its members.
Conclusion
Having had regard to all the relevant facts and circumstances, as summarised above, I am satisfied that the applicant has been and is genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
Pursuant to s.443(1), the Commission must make a protected action ballot order if the requirements in s.443(1) are met. Having concluded that the applicant is genuinely trying to reach an agreement with the employer of the employees who are to be balloted, I must make a protected action ballot order. An Order [PR712947] based largely on the draft provided by the ASU and the amendments to that draft discussed during the hearing will issue at the same time as this Decision.
The period of notification pursuant to s.443(5) shall be three working days for all questions except question 13, which will be seven working days.
COMMISSIONER
Appearances:
M Thomas and A May for the applicant.
A Langford, A Platen and M Roosmale-Cocq for the respondent.
Hearing details:
Brisbane
2 October
2019.
Final written submissions:
Applicant’s outline of submissions, 1 October 2019.
Statutory declaration of Adrian Langford, 2 October 2019.
<PR712959>
[1] [2012] FCAFC 53.
[2] [2009] FWAFB 368.
[3] [2015] FWCFB 210.
[4] The Australian Workers' Union v Telum (QLD) Pty Ltd T/A Telum; and Construction, Forestry, Mining and Energy Union v Telum (QLD) Pty Ltd T/A Telum 2016 FWC 8496 at [11].
[5] Statutory declaration of Mr Adrian Langford at [4].
[6] PR712408.
[7] Statutory declaration of Mr Adrian Langford at [10].
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