Australian Principals Federation v State of Victoria (Department of Education and Early Childhood Development)

[2013] FWC 1959

[2013] FWC 1959

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Principals Federation
v
State of Victoria (Department of Education & Early Childhood Development)
(B2013/721)

COMMISSIONER BISSETT MELBOURNE, 2 APRIL 2013

Section 437 - application for protected action ballot - whether applicant genuinely trying to reach agreement - applicant no longer pursuing matters subject to limitation in Re AEU and Referral Act - whether application still competent - whether ballot question comprehensible - extension of time required for written notice of intent to take action.

[1] On 15 March 2013 the Australian Principals Federation (APF) made an application for a protected action ballot order in accordance with s.437 of the Fair Work Act 2009 (the Act) with respect to bargaining that is occurring with the State of Victoria represented by and acting through the Department of Education and Early Childhood Development (the Department) for a proposed enterprise agreement covering Principal Class Officers.

[2] The matter was listed for hearing on 21 March 2013. In the hours prior to the hearing material, including a detailed witness statement of Mr Bugden, was received from the Department. At the commencement of the hearing Mr Cotching of the APF sought an adjournment to enable the APF to consider the material submitted by the Department. Mr Forbes for the Department did not object to the request. The matter was therefore adjourned until 26 March 2013.

[3] On 26 March 2013 the APF was represented with permission by Ms Duffy of Counsel. The Department was represented with permission by Mr Forbes of Counsel.

The law

[4] The requirements of the Act with respect to application for and determination of an application for a protected action ballot order are set out in Division 8 of Part 3-3 of the Act. The object of this part of the Act is at s.436:

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.

Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.

[5] Section 437 sets out the application requirements for a protected action ballot order:

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.

[6] Section 443 of the Act sets out the circumstances in which the Commission must make a protected action 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.

(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.

Evidence

[7] Mr Cotching provided evidence for the APF. His evidence is that a log of claims was served on the Department in May 2011. 1

[8] Mr Cotching’s says that there have been about 30 meetings between the APF and the Department. He says that negotiations have proceeded however nothing is ultimately agreed until it is all agreed.

[9] Mr Cotching says that the negotiations were being carried out in confidence and so there is little capacity to detail what had occurred in those negotiations.

[10] Mr Cotching’s says that on 25 March 2013 the Executive of the APF met and passed the following resolution:

APF Executive NOTING:

1. The terms of the Draft Log of Claims of May 2011;

2. The lengthy negotiations between APF and DEECD since August 2011;

3. ...

4. The complaints advanced on behalf of the DEECD in the APF’s protected action ballot application to the effect that certain of the APF’s original claims offend the scope of the Referral Act and the principles in Re AEU;

5. The fact that at no time in the course of negotiations for a new agreement have the DEECD negotiators raised an objection to any of the claims on the basis of the Referral Act or Re AEU considerations;

6. The fact that the original APF claims of May 2011 no longer reflect the APF’s claims, nor does the DEECD’s negotiating position of 2011 any longer reflect its current position...

RESOLVES AS FOLLOWS:

1. To condemn the DEECD for its conduct in failing to raise in the course of months of negotiations concerns with the form of APF’s original claims by specific reference to the Referral Act and Re AEU limitations now advanced;

2. To confirm that the APF genuinely wants to reach an agreement with the employer that is capable of certification by the Commission under the Fair Work Act and to the extent that any claim it has made exceeds the capacity of the Commission to certify, APF does not pursue that claim for the purposes of the proposed agreement under the Act and does not seek a protected action ballot order for industrial action in respect of any such claim;...

3. That it will not advance further claims in the current negotiation (sic) for a proposed enterprise agreement to the extent that they offend the limitations in Re AEU or the referral Act.

4. That the President advise the DEECD, and if considered appropriate the Fair Work Commission, of this resolution. 2

[11] In response to specific questions asked of him in cross examination, Mr Cotching says that the matters contained in paragraphs 10.3(h),10.6, 10.7, 12.1, 12.6, 15.5, 15.6, 23.1, 24 and 26 of the May 2011 log of claims have been withdrawn. Mr Cotching states that these were matters the union would continue to pursue with the Department through proposed working parties but that they would not be pursued as part of an agreement with the Department.

[12] Mr Cotching’s evidence is that some of his members were aware of the resolution passed by the Executive but not all of them.

[13] Mr Cotching says that the proposed agreement referred to in the question to be put in the protected action ballot order is the agreement which will be the negotiated outcome with the Department.

[14] With respect to the proposed industrial action Mr Cotching’s evidence is that he did not consider that the Department would need more than the standard three days notice of the industrial action to be able to take defensive action with respect to the bans.

[15] Mr Bugden gave evidence for the Department. He confirms that the Department received a log of claims from the APF in May 2011 and that there had been about 30 meetings with the APF since the log of claims was served. He says that those meetings canvassed a range of issues and that while a proposal had been put forward by the APF for some matters to be dealt with through separate working parties there was no agreement from the Department to that proposal.

[16] Mr Bugden says he understood that, in the negotiations, until agreement is reached on everything nothing is agreed: that is, the negotiations are occurring on a without prejudice basis. Mr Bugden’s understanding is that if there is no settlement the APF will pursue its claims ‘in other ways’. 3

[17] With respect to the industrial action proposed in the questions to be balloted Mr Bugden’s evidence is that:

1. A ban on DEECD cooperation goes to the heart of the Principal’s operational, reporting and staffing functions and the effect of the bans would be heightened at times of industrial action;

2. NAPLAN testing is a major logistical task and the Department would have difficulty in performing the test if members of APF banned the task. This would have consequences for the collection of comprehensive NAPLAN data and hence impact on how the data is used;

3. The proposed ban on SSSOs (student support service officers) goes to the management and not the delivery of that service; however school Principals play an important role in facilitating and coordinating the delivery of the SSSOs;

4. Stoppages of four hours would cause significant disruption to schools given the important functions carried out by school Principals.

Submissions

[18] Ms Duffy for the APF submits that I can be satisfied that the APF is not pursuing any matters that would offend the implied limitations in Re AEU; ex parte Victoria 4 (Re AEU) and the limitations imposed by the Fair Work (Commonwealth Powers) Act 2009 (Vic) (the Referral Act) and therefore I can be satisfied that the APF is genuinely trying to reach agreement.

[19] In any event she submits that the implied limitation in Re AEU does not apply to agreements reached voluntarily between the parties and that an enterprise agreement in this respect can be distinguished from an award or arbitrated outcome that results in an outcome imposed by the making of the award or determination under the Act.

[20] Ms Duffy relies on the decision in State of Victoria v the Commonwealth 5 (IR Case) where it was found that agreements entered into voluntarily were not bound by the limitation.6 Further, in United Firefighters’ Union of Australia v Country Fire Authority7 (UFU) Roe C considered this issue and found that a agreement voluntarily entered into did not impinge upon the implied limitation and that any concern of the State with respect to the limitation could be resolved by them not agreeing on the specific matter.8 Whilst this decision is currently under appeal Ms Duffy put to me that the decision of Roe C should be followed until the outcome of the appeal is known.

[21] With respect to the Referral Act, Ms Duffy says that it generally reflects the language in Re AEU. As to the decision in Parks Victoria v The Australian Workers’ Union and others 9 (Parks Victoria), where the limitations of the Referral Act were considered by a Full Bench of the Commission, Ms Duffy says this can be distinguished from the current matter as the decision in Parks Victoria was a determination made under the Act. As such it sought to impose an outcome by arbitration on the State. The Full Bench in that matter was constrained by the limitations contained in the Referral Act. Again she says this matter is distinguishable as what is being sought by the APF is a voluntary agreement with the Department.

[22] As to the period of notice of the action, she submits that no evidence has been advanced to justify a notice period of longer than 3 days, and no greater period of notice should be required.

[23] Ms Duffy further submits that the APF has met the requirements of s.437 of the Act. She therefore submits that the protected action ballot order can and should be made.

The Department

[24] Mr Forbes for the Department submits that:

1. The application as made by the APF on 15 March 2013 cannot be maintained and should be withdrawn or alternatively should be dismissed by the Commission;

2. If the application is entertained by the Commission it should nonetheless be dismissed for jurisdictional reasons;

3. If the application is not dismissed on jurisdictional grounds it should be dismissed because the ballot question is incomprehensible;

4. If the application is granted an extended notice period for the action should be required.

[25] On the first point Mr Forbes submits that, while it may appear that the APF has abandoned its claims for matters which cannot be pursued because of the implied limitation of Re AEU and/or the Referral Act, at the time the ballot application was made these matters were being pursued by the APF. If nothing is agreed until everything is agreed (and everything has not been agreed at this point) then it must be that the claim being pursued by the APF is that as contained in the log of claims served in May 2011. In any event Mr Forbes submits that there is no evidence that the claim as may have been amended by the APF Executive resolution has been the subject of any negotiations between the APF and the Department. Mr Forbes submits I must decide this application on the basis of the log of claims as served in May 2011or at least the log of claims as it existed at the time the application for the protected action ballot order was made.

[26] On the second issue Mr Forbes submits that the claim made by the APF contains matters that go beyond the powers referred by the State to the Commonwealth in the Referral Act. Mr Forbes submits that it is not a question of whether or not the APF and the Department can reach a voluntary agreement on such matters; it is that the Commission has no power to entertain such matters in an agreement as the State has not given any power to the Commonwealth to deal with such matters. The Referral Act removes from those matters referred to the Commonwealth matters pertaining to the number, identity or appointment of employees in the public sector (other than terms and conditions of service) and matters pertaining to the number or identity of employees in the public sector dismissed or to be dismissed on the grounds of redundancy. 10 The log of claims, Mr Forbes submits, still contains such matters.

[27] On the third area of objection Mr Forbes submits that employees, in voting to approve industrial action, have to know the proposed agreement with respect to which they are being asked to take action. At the time of the making of the order the members of the APF would not know the state of the claim because of the changes made to the claim by the resolution of the APF Executive the evening before the hearing of the application. A degree of certainty is required as to the proposed agreement at the time the application for a protected action ballot order is made.

[28] Finally, Mr Forbes submits that, should the application be granted an extended notice period of 7 working days should be given of the notice to be taken. He submits that there are exceptional circumstances that justify such an extended notice period. 11

Consideration

[29] In order to grant the application for a protected action ballot I must be satisfied that the applicant (the APF) has met the necessary requirements of the Act for the making of such an order and that the APF has been and is genuinely trying to reach agreement.

[30] On the basis of the evidence of Mr Cotching I am satisfied that the APF is not pursuing any claims that would be in conflict with the implied limitation in Re AEU and/or offend the Referral Act. Mr Cotching provides evidence to this extent and there is no reason not to believe that Mr Cotching’s evidence is truthful.

[31] Further, the resolution of the APF Executive indicates a clear intention on its behalf, and a clear direction to its negotiating team, not to pursue such matters.

[32] Additionally, in response to questions on a number of specific claims that appeared in the original log of claims from May 2011, Mr Cotching provides evidence that the APF has withdrawn these specific claims. While the submissions of the Department 12 raise objection to some additional matters to those Mr Cotching indicates are expressly withdrawn, these were not put to Mr Cotching. To the extent that those matters do offend the implied limitation in Re AEU and/or the Referral Act I accept the resolution of the APF Executive and the evidence of Mr Cotching that they are no longer pursued.

[33] Clause 10.3(b) of the log of claims (which Mr Cotching indicates in his evidence the APF continues to pursue) forms part of the consultation clause for the proposed agreement. Consultation is required, under the proposed clause, about major change the Department may decide to embark upon in circumstances where that change is likely to impact on the work of the employees covered by the Agreement. ‘Impact’ is defined in clause 10.3 and includes at paragraph (b) ‘changes in the composition, operation or size of the employer’s workforce.’ The clause does not require consultation (let alone agreement) on the changes to the composition of the workforce, but rather to the change itself that may impact on that composition. In this respect I do not consider that this definition offends the implied limitation in Re AEU or the Referral Act.

[34] I am aware that such a clause can be found in the Victorian Public Service Determination 13 and the Parks Victoria Workplace Determination,14 both made following detailed consideration by Full Benches, including on matters such as the Referral Act. Its inclusion in those determinations suggests it does not breach the implied limitation in Re AEU or the Referral Act.

[35] Clauses 13.5 and 13.6 in the May 2011 log of claims both remain a part of the claim of the APF. These clauses deal with classifications levels of Principal Class Officers and associated budget matters. I understand the submission of the Department to be that these matters may have an impact in budgetary terms and hence impact on the State’s ability to hire more Principals. To this extent the Department says the provisions offend the Referral Act.

[36] Were I to accept this submission then any aspect to the APF’s claim that had a monetary impact could be said to have a flow on effect on the State’s ability to hire more Principals, and therefore could not be included in an agreement capable of approval by the Commission. This would encompass virtually every claim made by the APF and would certainly mean that claims for increased wages or allowances could not be included in any agreement.

[37] I think that this submission by the Department moves well beyond Re AEU and the restrictions imposed by the Referral Act. There is no reason to find that matters associated with classifications or rates of pay cannot be included in the proposed agreement.

[38] I therefore do not accept that clauses 10.3(b), 13.5 and 13.6 in the May 2011 claim of the APF are in breach of the Referral Act or offend Re AEU.

[39] The evidence before me is that there have been over 30 meetings between the APF and the Department. These meetings have canvassed a range of issues with proposals being put forth and considered. The negotiations are proceeding on a without prejudice or on a ‘nothing is agreed until everything is agreed’ basis. This does not preclude a withdrawal of or change to claims that may have been part of the original log of claims. It is not unusual in negotiations for parties to reach agreement on particular matters subject to other parts of the claim being agreed. To suggest that this somehow means a party cannot amend its claims as negotiations proceed is not correct. As long as claims are not capriciously put forward or removed from the bargaining table, there is no reason to suppose that a party withdrawing some part of its claim is not genuinely trying to reach agreement.

[40] That the extent of the claim of the APF has been amended between the time of making the application for a protected action ballot order and the hearing of that application does not mean the APF is not genuinely trying to reach agreement on the amended claim. The evidence is that there have been extensive negotiations. No witness has suggested that the negotiations to date have been restricted to those matters which have now been withdrawn by the APF such that there is nothing in the remaining claim that is or has been subject to negotiations.

[41] On the basis of the withdrawal of all matters excluded by the Referral Act and the implied limitations in Re AEU I am satisfied that the APF is genuinely trying to reach agreement.

[42] The APF negotiators operate under the direction of the APF Executive. Nothing has been put to me to suggest that the APF Executive, in withdrawing some matters contained in the May 2011 log of claims, is operating beyond its authority given to it by APF members. I am being asked to approve a protected action ballot order that asks the voters if they support particular action in support of a proposed enterprise agreement. It is put that those who vote on the resolution will not know what the proposed enterprise agreement is, as it has changed from that contained in the claim in May 2011 and/or from the one proposed at 15 March 2013 when the application for a protected action ballot order was made.

[43] The bargaining process, by its very nature, means that what may be claimed at the start of the negotiating process by a bargaining representative is not necessarily the final agreement put to the Commission for approval. The shape and content of the proposed agreement will change all through the negotiations. For it not to do so may result in an applicant for a protected action ballot order being accused of not genuinely trying to reach agreement. This is the dynamic nature of negotiations. In any event the ballot question asks voters if they are prepared to take certain action in support of a Principal Class enterprise agreement, not the Principal Class agreement as set out in the May 2011 log of claims.

[44] I have considered the evidence before me as to the need for an extended notice period required under s.414(2)(a) of the Act for the proposed industrial action. I note that the evidence only goes to the need for an extended notice period for some of the action despite submissions of the Department that suggest extended notice is sought for all of the proposed industrial action.

[45] On those matters subject to specific evidence I see no reason to extend the notice period with respect to the bans on DEECD cooperation (questions 8-15 of the propose ballot questions). Nothing was put to me to suggest that exceptional circumstances exist to justify any extension to the three day notice period specified in s.414(2)(a) of the Act.

[46] With respect to industrial action that involves a four hour stoppage (question 19 on the ballot) nothing has been put to suggest that any notice in addition to the standard three day notice in the Act is required. Mr Bugden has alluded in his evidence to the potential for members of the APF to take such action coinciding with action taken by the AEU who are required to provide longer notice for such stoppages. No evidence is given that such coincidence of action is being considered. Further, no evidence is given of exceptional circumstances justifying a notice period longer than three days when Principals may take four hour stoppage action. There is, in my view, a substantial difference in effect between teachers in a school taking stoppage action and Principals (who will be a much smaller proportion of the school staff than teachers). No evidence was given that a four hour stoppage by Principals will require extended notice to parents of school closures, for example. In these circumstances I am not convinced that I should order a longer notice period for such action.

[47] With respect to the industrial action directed at NAPLAN testing (question 14) and SSSO functions (questions 12-13) given the sensitive nature of these matters and the time required to put in place appropriate defensive action I am prepared to grant an extension of the notice period.

[48] The Department sought an extension of the notice period to seven working days, however I see no justification to extend the notice period, where required, beyond five working days.

Conclusion

[49] I am satisfied that the APF has met the requirements of s.437 of the Act.

[50] I am satisfied that the APF is not seeking to include in the proposed enterprise agreement matters that offend the Referral Act or the implied limitation in Re AEU. I am therefore satisfied that the APF is seeking an agreement which is capable of being approved by the Commission.

[51] I therefore find that the APF is genuinely trying to reach agreement. Jurisdiction therefore exists to make the order sought.

[52] I am satisfied that the question to be put to voters is comprehensible.

[53] I am satisfied that exceptional circumstances exists such that the written notice period for industrial action taken in accordance with questions 12, 13 and 14 on the ballot paper should be extended to five working days.

[54] On this basis I shall make the protected action ballot order. That order shall include a requirement for the written notice period required under s.414(2)(a) of the Act for industrial action taken in accordance with questions 12, 13 and 14 to be five working days.

[55] An order shall issue in conjunction with this decision.

COMMISSIONER

Appearances:

A. Duffy of Counsel with P. Gardner for the Applicant.

J. Forbes of Counsel for the Respondent.

Hearing details:

2013.

Melbourne;

26 March.

 1   The log of claims is at exhibit Vic1, attachment TB4.

 2   Exhibit APF1, attachment CC1.

 3   Transcript PN266.

 4 (1995) 184 CLR 188.

 5 187 CLR 416.

 6 187 CLR 416, 535, 542 and 563.

 7   [2012] FWA 7155.

 8   [2012] FWA 7155, [105]-[106].

 9   [2013] FWCFB 950.

 10 Referral Act, s5(1)(a) and (b).

 11   See CEPU v Australian Postal Corporation[2007] FWA 848.

 12   Exhibit Vic2, paragraph 36.

 13   AG895510 PR526534.

 14   AG400010 PR534338.

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