Australian Municipal, Administrative, Clerical and Services Union v Shire of Mundaring

[2014] FWC 4554

[2014] FWC 4554

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v
Shire of Mundaring
(B2014/905)

COMMISSIONER BULL PERTH, 9 JULY 2014

Proposed protected action ballot by employees of the Shire of Mundaring, objection to form of proposed questions, application granted, questions amended.

[1] This is an application for a protected action ballot order by members of the Australian Municipal, Administrative, Clerical and Services Union (the ASU) employed by the Shire of Mundaring (the Shire).

[2] The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act).

[3] The Applicant seeks to ballot all employees employed by the Shire, who will be covered by a proposed enterprise agreement known as the Shire of Mundaring Municipal Employees Collective Enterprise Agreement 2014 and for which the ASU has been a bargaining representative for employees.

[4] Section 443 of the Act stipulates when the Commission must make a protected 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).

(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.

[5] In accordance with s.443(1)(a) I am satisfied that the application has been made in accordance with s.437.

Genuinely trying to reach an agreement

[6] Section 443(1)(b) requires the Commission to be satisfied that the Applicant (the ASU) has been, and is, genuinely trying to reach an agreement with the employer. The Shire does not oppose the granting of the Order on the basis that the ASU is not genuinely trying to reach an agreement, but opposes the application based on the proposed questions to be asked as reflected in the ASU’s draft order.

[7] The ASU has filed a Statutory Declaration completed by a Mr Paul Cecchini a Senior Industrial Organiser for the ASU. The contents of the Statutory Declaration were not contested by the Shire. Mr Cecchini’s declaration relays evidence of the steps taken by the ASU to bargain and the progress of the bargaining including concessions made by the ASU. Seven bargaining meetings with the Shire are referred to in Mr Cecchini’s Statutory Declaration.

[8] For the purposes of s.443(1)(b) of the Act, I am satisfied on the basis of the Statutory Declaration of Mr Cecchini, that the ASU has been, and is, genuinely trying to reach an agreement with the Shire.

Nature of questions to be asked

[9] The ASU draft order contains a list of 23 questions to be put to employees in the proposed protected action ballot. The form of the 23 proposed questions provides for a yes or no response. The Shire objected to eight of the questions based on s.437(3)(b) of the Act. Section 437(3)(b) states that the application must specify:

(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

[10] Generally the drafting of questions in a Protected Action Ballot Order is a matter for the Applicant and the questions to be asked need to be specific enough for employees to understand what is being asked. This was made clear by the Full Bench in John Holland Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU): 1

[19] 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.

[11] A question needs to be of sufficient specificity to also allow an employer to take remedial or response action having received notice of the intention to engage in protected industrial action as per the requirements of s.414 of the Act. 2

[12] Many of the questions asked in the draft order particularly those objected to by the Shire, make reference to an “unlimited” number of stoppages involving particular industrial action. This issue was dealt with by a Full Bench in Total Marine Services Pty Ltd v Maritime Union of Australia 3:

[39] TMS is critical of the use of the term ‘unlimited’ in relation to the particular forms of industrial action. The precise length of any action will be determined subsequently by the bargaining agent who organises the action and the members of the union who choose to participate. It is inevitable that the precise timing and length of the action is not determined at the stage of authorisation. But in voting to authorise the action the employees would have no doubt of the outer limits of the action involved. In our view the requirements for an application are satisfied.

[13] The Shire argued that the eight questions in dispute should be rejected on the basis that one or all of the following reasons applied:

● the range and scope of the defined conduct was uncertain,
● the questions would lead to confusion on the part of employees being requested to authorise it, and
● the questions lacked sufficient specificity as to the intended duration of the action.

[14] It was said that where any of the above factors are present then the question to be put to employees is unlawful.

[15] The matter was part heard on 30 June 2014, where the objections were outlined in more detail by Mr Brendan Taylor on behalf of the Shire. Following some suggestions by the Commission and discussions between the parties, the ASU indicated that they would amend some of the questions to accommodate the concerns raised by the Shire.

[16] The matter was listed for the following day where the issues had narrowed to the form of words used in three of the 23 questions to be put to voters.

[17] Following further submissions from the Shire and comment from the Commission, the ASU agreed to amend questions (2) and (3) by stating that the non compliance with various Shire policies and directions would be via an unlimited number of five minute periods. This amendment was suitable to the Shire on the basis of an undertaking given in transcript by Mr Burlinson from the ASU. The ASU undertook to require its members to advise the Shire when the protected industrial action had been undertaken by its members in order for the Shire to take whatever action is required. As a result of these amendments and the ASU undertaking only one issue remained to be determined.

[18] The remaining objection by the Shire related to question 3. Question 3 as amended is framed in the following manner:

3. Non compliance with any employer policy or direction that limits employees from speaking with the Shire of Mundaring Councillors, ratepayers, customers and the general public about their bargaining campaign for an unlimited number of five minute periods which can be taken consecutively.

(my emphasis)

[19] The Shire argued that the reference to Shire of Mundaring Councillors to the extent that the question authorises employees speaking with Councillors ought be removed on the basis that it breaches s.5.41(g) of the Local Government Act 1995 (WA). Section 5.41(g) is a reference to the functions of the CEO and states the CEO is:

“...responsible for the employment, management supervision, direction and dismissal of other employees (subject to section 5.37(2) in relation to senior employees);”

[20] The Shire submits that it is not Councillors, but the CEO who is responsible for the management of employees. It is argued that in conjunction with clause 9 of the Local Government (Rules of Conduct) Regulations 2007 (the Rules) the canvassing of Councillors by employees is prohibited.Clause 9 reads as follows:

9. Prohibition against involvement in administration

(1) A person who is a council member must not undertake a task that contributes to the administration of the local government unless authorised by the council or by the CEO to undertake that task.

[21] Therestrictions or obligations arising from clause 9 of the Rules are imposed on council members’. As such I cannot see how employees of the Shire are prevented by this rule from approaching a Councillor, the clause is directed at potential action undertaken by Councillors not employees.

[22] I was advised by the Shire that the question of whether employees are permitted to consult Councillors during an enterprise bargaining period was a matter currently before the Federal Circuit Court arising from the last round of enterprise negotiations and that as a result I should exercise caution in approving the question. The ASU opposed this approach.

[23] The question asks whether protected industrial action should be taken in non compliance with any employer policy or direction that limits employees from speaking with the Shire of Mundaring Councillors. Other than s.5.41(g) of the Local Government Act 1995 (WA) and clause 9 of the Rules, I was not taken to any such policy or direction by either party that limits employees from speaking with Councillors.

[24] I note that s.415 of the Act - Immunity Provision with some exceptions, provides that no action lies under any law in force in a State or Territory in relation to any industrial action that is protected industrial action.

Conclusion

[25] I am unable to agree that question (3) is unlawful as submitted by the Shire in their written 4 and oral submissions. For the purposes of s.437(3)(b) of the Act, the question discloses the nature of the intended industrial action and is sufficiently clear to enable employees to understand the nature of the protected action they are being asked to authorise. Nor do I think it appropriate in this case to disallow the question on the basis a similar argument is awaiting a decision from the Federal Circuit Court.

[26] Having decided all of these matters and that s.443(1)(a) and (b) have been complied with, the protected action ballot order (PR552554) will issue as sought by ASU with the agreed changes.

COMMISSIONER

Appearances:

Mr P Burlinson, Ms S Amanyar, Ms A Nyariel for the Australian Municipal, Administrative, Clerical and Services Union

Mr B. Taylor for the Shire of Mundaring

Hearing details:

2014.

Perth:

30 June and 1 July.

 1   [2010] FWAFB 526 at [19]. Adopted in National Tertiary Education Industry Union v RMIT University[2013] FWCFB 9549 at [25].

 2   Mornington Peninsula Shire Council [2011] FWAFB 4809 at [40].

 3   [2009] FWAFB 368.

 4   See paragraph 3 of the Shire of Mundaring written submission dated 1 July 2014.

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