Australian Municipal, Administrative, Clerical and Services Union v Pelican Point Power Ltd
[2010] FWA 3571
•6 MAY 2010
[2010] FWA 3571 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Australian Municipal, Administrative, Clerical and Services Union
v
Pelican Point Power Ltd
(B2010/2902)
SENIOR DEPUTY PRESIDENT O'CALLAGHAN | ADELAIDE, 6 MAY 2010 |
Proposed protected action ballot by employees of Pelican Point Power Ltd.
[1] This matter relates to an application made by the Australian Services Union (ASU) for a protected action ballot pursuant to section 437 of the Fair Work Act 2009 (the Act), to apply to nominated employees of Pelican Point Power Ltd (Pelican). The application was lodged on 23 April 2010 and was the subject of a hearing on 28 April 2010. My decision in this matter was issued at the conclusion of this hearing. These reasons for this decision follow a request for written reasons made by the ASU on 3 May 2010.
[2] At the hearing on 28 April 2010 Mr White represented the ASU and Mr Short, of counsel, Pelican.
[3] Section 443 of the Act states:
“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) 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.
(4) If FWA 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 FWA decides, under subsection 444(1), is to be the protected action ballot agent; and
(b) the person (if any) that FWA decides, under subsection 444(3), is to be the independent advisor for the ballot.
(5) If FWA 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.”
[4] I note at the outset that the ASU did not provide information accompanying the application to detail the negotiation process or the claims made on Pelican. However, at the commencement of the hearing Pelican agreed that there was no dispute that the ASU had been, and was genuinely trying to reach an agreement.
[5] On this basis, I was satisfied that the preconditions for the making of a protected action ballot order set out in section 443(1) had been met.
[6] It was common ground that the ballot would potentially involve some 15 employees and that these employees worked a 12 week roster cycle such that, at any one time, some employees would be at work, some would be working in the near future and others would be on an extended work break.
[7] The ASU application sought that the ballot should apply to Pelican employees engaged in operations and maintenance of the power station plant and associated infrastructure and property. I was not satisfied that this description adequately identified the employees who would be able to participate in the ballot and determined that the ballot should be limited to ASU members and should exclude employees covered by individual agreements which had not expired. This conclusion was based on sections 453 and 454 of the Act. Further, subsection 437(5) states:
“437 Application for a protected action ballot order
….
(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) are represented by a bargaining representative who is an applicant for the protected action ballot order.”
[8] The questions proposed to be put in this protected action ballot were the subject of some debate in the hearing. Ultimately, both parties agreed to the single question which I included in the Order issued.
[9] The ASU application sought that Mr Gregory Stevens be specified as the protected action ballot agent. Mr Stevens is a former member of the Australian Industrial Relations Commission and the South Australian Industrial Relations Commission. His experience and credentials are well known to me and he has conducted ballots under the former Workplace Relations Act 1996. The ASU advised that it had engaged in discussions with Mr Stevens relative to the conduct of the ballot. Further, the ASU sought that the ballot be conducted as an attendance ballot, on the following day, on the basis that it had the capacity to call employees in to work to attend such a ballot.
[10] Pelican expressed a preference for a postal ballot, conducted by the Australian Electoral Commission (AEC) consistent with the AEC’s normal timeframes. Pelican argued that the Act required adherence to a specified process to develop a role of voters and the absence of a significant proportion of employees from the workplace mitigated in favour of a postal ballot. Pelican argued that the ASU had not established any benefit associated with the appointment of Mr Stevens as the ballot agent and that the Fair Work Regulations 2009 prescribed additional requirements in the event of the appointment of other than the AEC as ballot agent.
[11] I have considered these issues collectively in the overall scheme of this Part of the Act. I have had particular regard to the objects of this Part of the Act which state:
“436 Object of this Division
The object of this Division is to establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement.
[12] Section 444 provides that Fair Work Australia may decide on a ballot agent other than the AEC. This section also deals with the appointment of an independent advisor for a protected action ballot.
[13] I am satisfied that there is no doubt that Mr Stevens is a fit and proper person to conduct the proposed ballot. However, other considerations are relevant. Firstly, I have noted that the appointment of Mr Stevens has not been agreed with Pelican and consider that were Mr Stevens to be appointed in these circumstances, consideration may need to be given to the appointment of an independent advisor. Secondly, subsection 444(2) requires that consideration be given to the Regulations relative to the appointment of a ballot agent other than the AEC. These requirements extend to the obligation to be bound to the Privacy Act 1988 and the requirement that I am satisfied that Mr Stevens is able to conduct a ballot of the nature prescribed expeditiously.
[14] I have considered these requirements in the context that I consider that the rostering arrangements mitigate strongly in favour of the vote being conducted as a postal ballot to ensure that all employees are given a demonstrably equal opportunity to participate in the ballot process.
[15] No information was provided to me to establish that the ballot had to be conducted with such haste that a normal postal ballot process was inappropriate.
[16] Further, section 452 and regulation 3.15 establish requirements on the ballot agent to complete the role of voters. I do not consider that this could be done in the timeframe proposed by the ASU, and, to the extent that an agreement in this respect may have been reached with Mr Stevens, I am not satisfied that this could meet the requirements of this section.
[17] I do not consider that the ASU has established any appropriate reasons for a departure from the default function of the AEC as ballot agent. The issue of an independent advisor is avoided by such an appointment. The reporting process and obligations on the ballot agent are simplified by the appointment of the AEC as ballot agent. The ASU did not address the Privacy Act requirements or provide information about how Mr Stevens would conduct a postal ballot. Absent anything other than an unsubstantiated preference for Mr Stevens as a ballot agent, I consider that the scheme of the Act mitigates in favour of the AEC assuming this function.
[18] On the basis of the information before me, I have adopted a timetable for the ballot consistent with that generally applied by the AEC.
[19] The Order (PR996619) issued on 28 April 2010 consequently provided for the AEC to conduct a protected action ballot on the basis set out above.
[20] The Order issued on 28 April 2010 also dealt with one other matter. This involved a requirement that the ASU provide 5 working days written notice of industrial action. It followed a request to this effect made by Pelican. In this regard Pelican argued that it provides 25% of South Australia's electricity generation requirements and that notice longer than the 3 working days specified in subsection 414(2)(a) was necessary to ensure that it was able to take action to avoid or minimise the potential for interruption to electricity generation supplies which could impact on the community at large. The ASU did not oppose the Pelican position in this respect and, as a consequence my Order incorporated this requirement so as to be consistent with the five-day period specified in section 424(3) which Pelican asserted could assume some relevance in this matter.
SENIOR DEPUTY PRESIDENT
Appearances:
A White for the Australian Municipal, Administrative, Clerical and Services Union.
A Short counsel for Pelican Point Power Limited.
Hearing details:
2010.
Adelaide:
April 28.
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<Price code C, PR996811>
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