Australian Municipal, Administrative, Clerical and Services Union v Pelican Point Power Limited

[2010] FWA 7739

Note: An appeal pursuant to s.604 (C2010/679) was lodged against this decision - refer to Full Bench decision dated 21 December 2010 [[2010] FWAFB 9441] for result of appeal.

[2010] FWA 7739

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v
Pelican Point Power Limited
(B2010/180)

DEPUTY PRESIDENT BARTEL ADELAIDE, 5 OCTOBER 2010

Proposed protected action ballot by employees of Pelican Point Power Limited.

[1] This decision concerns an application by the Australian Municipal, Administrative, Clerical and Services Union (“ASU”) for a protected action ballot order pursuant to s.437 of the Fair Work Act 2009 (“the Act”).

[2] The circumstances in which Fair Work Australia must make a protected action ballot order are contained in s.443 of the Act and are set out below:

“443 When FWA must make a protected action ballot order

(1) FWA 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) FWA 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) FWA 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] The relevant employees to be balloted are those employees of Pelican Point Power Limited (“the employer”) “... who are members of the [ASU] who are employed by [the employer] to carry out operations and maintenance of the power station plant and associated infrastructure and property, whose Australian Workplace Agreements have passed their nominal expiry date, and who would be covered by the proposed enterprise agreement.”¹

[4] The matter came on for hearing on 21 September. At the time I granted leave to appear to Mr Short, of counsel, for the respondent. I did so, on the basis that the relevant officers of the employer had no advocacy experience before Fair Work Australia (“FWA”) and that the ASU was represented by an experienced advocate. I also considered that FWA would be assisted by the employer being legally represented on the basis of Mr Short’s summary of the submissions he intended to advance.

[5] Mr White, for the ASU, argued that the ASU have genuinely tried to reach agreement with the employer: it has negotiated the detail of a range of clauses, revised its position, exchanged draft documents and considered the position advanced by the employer in relation to various matters.

[6] Mr Short argued that the ASU was not genuinely trying to reach agreement since April 2010, because it had failed to provide a considered response to the employer’s proposals. He submitted that the ASU was only interested in negotiating around its document and referred to Total Marine Services as authority for his position that a failure to provide a considered response to demands made by the other side indicates a failure of the requirement to genuinely try to reach agreement.²

[7] The following matters are non-controversial:

• The parties have been involved in negotiations since September 2009 when the parties met and the ASU tabled a draft agreement;



• Meetings were held between the parties on at least six occasions up to April 2010, including a meeting on 25 March 2010 where the ASU proposed a simplified agreement with a view to expediting the conclusion of an enterprise agreement between the parties.



• When it became apparent that the revised agreement was not acceptable to the employer, the ASU sought and obtained a protected action ballot order in April this year.³ At that time, the employer accepted that the ASU had been genuinely trying to reach agreement;



• Subsequent to the issuing of the order, the parties continued to meet in the months of May to September on a further seven occasions.

[8] After Mr White had concluded his submissions in reply, I indicated that I would provide some additional time for the ASU to consider its position. I did so because the ASU had no advance notice of the employer’s intention to seek leave to be legally represented and generally in order to consider any further submissions, including any cases upon which the union may seek to rely. At this time Mr White indicated that he may wish to call evidence, despite rejecting the opportunity to do so earlier.

[9] The ASU provided written submissions to the respondent and FWA and the hearing reconvened on Friday 24 September. Various correspondence, minutes of meetings and draft agreements proposed by the parties were admitted. Michael Warland, ASU member and workplace representative was called as a witness and provided a statement of evidence.⁴

Consideration

[10] The context of the negotiations is relevant to a consideration of the evidence before FWA. This is the first enterprise agreement between the parties and, as is sometimes the case with a first agreement, it has proven particularly difficult. Significantly, the parties have different expectations as to the overall process of negotiation. I consider that much of the tension between the parties can be traced to different negotiating styles and differences in emphasis on the need to formally exchange documentation outside of the negotiation meetings. It is apparent that the employer favoured a much more formalised approach to negotiations and the recording of outcomes in redrafted clauses, while the ASU was more focussed on the negotiation meetings.

[11] Negotiations have been ongoing for 12 months, and a reading of the minutes and correspondence indicates a level of frustration by both parties with both the manner and pace of the negotiations.

[12] In relation to the oral and documentary evidence before the Tribunal, I find as follows. Firstly, both parties have put up draft agreements and amended draft agreements for consideration. There is a large degree of overlap in subject matter, however there are clauses that are particular to each party’s draft. It is difficult to discern from the minutes of the meetings whether a particular item of discussion arises from one or both parties’ draft agreements, some subsequent discussion on the items within the drafts, or correspondence since the previous meeting.

[13] Secondly, there is evidence within the minutes of meetings and correspondence that the ASU has failed to record its position in writing and failed to respond in writing to the employer’s position, when requested to do so.⁵ However there is also evidence in the minutes of meetings that the ASU addressed matters raised by the employer and amended its own clauses having regard to matters raised by the employer.⁶ For example, at the negotiating meeting on 19 May 2010, it is recorded that “... the ASU advised that they would not consider the [draft agreement proposed by the employer], and that no written response will be supplied, but an oral response will be supplied at this meeting.” The minutes then go on to record discussion of clauses that are included in both parties drafts, where both parties state their views and further action is identified.⁷ The minutes of the meeting on 23 June 2010 include a range of draft clauses provided by the ASU arising from the parties’ agreement that they would proceed with matters identified in an earlier meeting.⁸

[14] On the evidence, it cannot be found that the ASU has ignored or rejected without consideration any proposal put up by the employer, as was contemplated in the passage from Total Marine Services relied on by Mr Short. It is relevant that the views expressed in this passage were made in the context of negotiations that involved “... limited face to face meetings and limited articulation of many of the claims. Certain matters were being dealt with in concurrent industry negotiations. Many items were only set out in a list of headings and were not explained or discussed. The wage claim had not been specified.” The Full Bench concluded that the Maritime Union of Australia was genuine, but that the steps it had taken were preparatory in nature and insufficient to satisfy the test its application needed to meet.⁹

[15] The conduct of the negotiations between the parties may not be proceeding particularly efficiently, but that is not the test. There may be some areas where the ASU has not met the stricter test of bargaining in good faith by failing to document their position as promised, or to provide information that was promised. Taking into account the history of the negotiations between the parties, I do not consider that these matters define the ASU’s general attitude to the bargaining.

[16] In National Union of Workers v SFK Australia Pty Ltd,¹⁰ Commissioner Lewin expressed the approach to the test to be satisfied as follows:

“[14] It is not appropriate to formulate or apply rigid rules concerning what negotiating history is necessary to be satisfied that an applicant for a protected action ballot order is genuinely trying to reach agreement. However, one would normally expect that the demands of the applicant had been communicated to the employer and a response to any counter demands made by an employer. Although, judgment would be required in relation to the second aspect in all the circumstances. Counter demands, their nature, substance, timing, frequency and the actions of the applicant in relation thereto, all in the relevant context, can be balanced for the purposes of the requisite satisfaction. This will require a global and discretionary judgment of the factual circumstances of any history of negotiations on the basis of the material submitted by the applicant.”

[17] Applying the approach set out above,¹¹ I conclude that the ASU has been genuinely trying to reach agreement. A further negotiation meeting has been set down for early October and I find that the ASU is continuing to genuinely try to reach agreement.

The terms of the protected action ballot order

[18] Mr Short identified a number of matters where the draft order submitted by the ASU was said to be deficient, require further clarification or should otherwise be amended. The first of these issues concerns the closing date of the ballot and Mr White has agreed that it can be 20 working days from the date of the order, rather than the 15 working days in the ASU draft order,¹² and this will be adopted.

[19] Secondly, the employer sought that there be a postal ballot in relation to the proposed industrial action on the basis of the 12 week shift rotations worked by employees. Mr White opposes this course of action, stating that the employees regularly attend meetings at the worksite when not rostered to work and this causes no difficulties. Mr White submitted that it is the employee’s preference to have an attendance-based ballot. In these circumstances an attendance based ballot will be held.

[20] Thirdly, Mr Short sought that extended notice of industrial action be provided to the employer. This submission was advanced on the basis that the employer provides 25% of South Australia’s energy, and this was said to be a compelling reason to provide advanced notice. Mr White took issue with the employer’s market share, submitting that it was in the order of 10 - 11%, and that the power station has shut down for “weeks at a time” due to maintenance work. At the proceedings on 21 September I indicated, in response to a suggestion from Mr Short, that this matter could be determined on further proceedings in the event that I granted the ASU’s application. On reflection, I do not believe this is necessary. I now have access to the initial protected action ballot order issued in April this year which provided that the ASU was to give five working days written notice of industrial action. The order I will issue will specify the same term.

[21] Finally, Mr Short contended that the question to be put to ballot was ambiguous and cited National Union of Workers - New South Wales Branch v FreshExchange Pty Ltd¹³ on the need for clarity in the question to be put to ballot in order to permit employees to make an informed choice on whether to authorise particular industrial action.

[22] The question proposed by the ASU in the present matter is in the following terms:

“In support of reaching an enterprise agreement with your employer do you wish to organise and/or engage separately, concurrently and/or consecutively in industrial action against your employer in the form of:

i. Taking the power station off generation for 24 hour periods. In those 24 hour periods generation from the station will be 0 megawatts.

ii. Placing the station in safe shutdown mode for the 24 hour periods in which the station is taken off generation.

iii. Not issuing permits to work during the 24 hour periods in which the station is placed in safe shutdown mode.

iv. In cases where any turbine main circuit breaker opens, placing the affected turbine in safe shutdown mode and not returning it to service.

v. When affected plant is in safe shutdown mode not issuing permits to work in respect of that plant?

Yes □ No □”

[23] I do not consider that the question is clear. The ASU has confirmed that this is one question, but the introductory words imply otherwise. The question contains five discrete actions and in my view should either be framed as five distinct questions, or alternatively should be reworded to make it clear that employees are voting to take all or none of the five discrete actions. In view of the potential for confusion in relation to the nature of the industrial action to be voted upon, I am unable to make an order containing the form of question proposed by the ASU.

[24] The ASU should provide an amended draft order to FWA addressing the matters discussed above including the concerns identified in relation to the question to be put to ballot, and serve it on the employer. If the employer wishes to challenge any aspect of the draft order, my Chambers should be advised within three working days of receipt of the amended draft order.

DEPUTY PRESIDENT

Appearances:

Mr A White, for the Applicant

Mr A Short, of counsel for the Respondent

Hearing details:

2010

Adelaide

September 21 and 24

Written submissions:

2010

24 September (Applicant)

¹ Form F34 - Application for a Protected Action Ballot Order at 3.

² Total Marine Services Pty Ltd v Maritime Union of Australia, [2009] FWAFB 368

³ Australian Municipal, Administrative, Clerical and Services Union v Pelican Point Power Limited, PR996619

⁴ Exhibit ASU 1

⁵ For example, Exhibit PP 5 and PP 6

⁶ For example, Exhibit PP 11; ASU 2 (Attachment A4); ASU 2 (Attachment A8 at pp 3-4)

⁷ Exhibit ASU 2 (Attachment A3)

⁸ Exhibit ASU 2 (Attachment A5)

⁹ Total Marine Services, supra, at [36]

¹⁰ [2010] FWA 6557

¹¹ This approach is supported by the Fair Work Bill 2008 Explanatory Memorandum at para 1664

¹² PN 718

¹³ [2009] FWA 221

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