"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

[2011] FWA 7257

[2011] FWA 7257

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
(B2011/3705)

SENIOR DEPUTY PRESIDENT O'CALLAGHAN ADELAIDE, 21 OCTOBER 2011

Proposed protected action ballot by employees of ASC Pty Limited - clarity of question to be put to employees.

[1] On 7 October 2011 the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) lodged an application for a protected action ballot pursuant to s.437 of the Fair Work Act 2009 (the FW Act), with respect to its members proposed to be covered by an agreement to be known as the ASC North Pty Ltd Supervisors Enterprise Agreement 2011-2013.

[2] The application was the subject of a hearing on 12 October 2011 and the parties have subsequently provided written submissions in support of their respective positions. Mr Bauer represented the AMWU and Mr Short, of counsel, ASC North Pty Ltd (ASC).

[3] Division 8 of Part 3-3 of the FW Act establishes processes to allow employees to choose whether to take protected industrial action. Sections 437, 438 and 440 specify who can make such an application and the preconditions and requirements for these applications. Section 443 provides that Fair Work Australia (FWA) must make a protected action ballot order if the specified prerequisite criteria are met.

[4] The only dispute about those criteria goes to one aspect of the order sought by the AMWU relative to one of the questions proposed to be put to employees. This question states: “An unlimited number of indefinite or periodic bans on specified duties or tasks?”

[5] The ASC position is that:

“.... The question is not sufficiently clear to enable employees to make an informed choice on the nature of the action they are being asked to approve and its general implications" 1.

[6] The ASC asserts:

“There is nothing to inform employees what bans on what duties or tasks they are being asked to approve. Bearing in mind that the bans may be of unlimited duration, it is possible that employees might be argued to be authorising a ban on all duties for all time. It is not clear. There are too many unknowns with the question. Employees will not know when they vote what it is they are authorising. 2

[7] Alternatively, ASC asserts:

“The employers subsidiary argument is that the lack of clarity flows through not only to employees understanding of the questions, but also to the employers understanding. The employer contends that it is a legitimate consideration that the lack of clarity means that the employer has less opportunity to understand what action is proposed, and to take such steps as it may consider appropriate by way of preparatory or responsive action. The employer contends that is a legitimate consideration.

Where lack of clarity exists, the capacity for additional arguments and disputation down the track when particular action may be notified may be considered a further ground for desiring clarity.

The employer is not saying that the applicant cannot seek a ballot. The employers position is that question 5 lacks requisite clarity. The applicant should refine the question, or proceed without it.” 3

[8] The ASC referred to a number of authorities in support of its contentions.

[9] The AMWU asserts that the ASC position was an attempt to delay or frustrate the taking of protected industrial action by employees. The AMWU referred to the Full Bench decision in John Holland Pty Ltd v AMWU and AWU 4 (John Holland) in support of its position that the disputed question was framed in a way that was capable of being responded to such that it was a legitimate question.

[10] The AMWU asserted that the proposed questions:

“.... are sufficiently clear in describing the nature of the proposed industrial action that a voting employee would understand the implications for them at work and that the questions comply with paragraph 437(3)(b). The employer here is approaching the matter in an overly technical and pedantic manner.” 5

[11] Further, the AMWU argues that:

“.... it is not for the employer to argue that the questions are not valid because the employer is uncertain as to what action is being proposed. The employer will be very clear as to what action is being proposed once they receive the requisite written notice of action (s.414). It is this juncture that ASC is at liberty to raise arguments about any deficiency regarding the action.” 6

[12] The AMWU also referred me to a number of authorities in support of its preferred approach. In particular, it relied on a decision of Watson VP in AMWU v Coates Hire Operations Pty Ltd 7(Coates Hire) where His Honour considered the question: "Indefinite bans on work related to specific events and/or particular customers."

[13] His Honour concluded:

“[7] .... the questions to be put satisfy the requirement that the application and questions are expressed in a sufficiently clear manner to enable employees who will be voting in the ballot to make an informed choice on the nature of the action they are being asked to approve and its general implications.

[8] Not all details of the action are particularised. However in my view the generic descriptions are clear. Employees who vote on these questions will understand the general nature of the industrial action they are asked to approve. If action falling within the descriptions is subsequently proposed to be taken it will need to be notified to the employer in sufficiently clear terms. Union members who are covered by the ballot would have no legitimate grounds for surprise at the specific instances of action falling within these descriptions.”

The legislation

[14] The objects of Division 8 of Part 3-3 are specified in 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.”

[15] As I have indicated, s.437 sets out who may apply for a protected action ballot order and the matters to be specified in and attached to the application. Section 437(3)(b) applies to the question in dispute. It states:

“Matters to be specified in application

(3) 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.”

[16] Section 443 requires that FWA must make a protected action ballot order if an application has been made under s.437 and FWA is 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. Section 443(3) specifies matters that must be included in a protected action ballot order. One of these mandatory inclusions is s.443(3)(d) which states:

“443 When FWA must make a protected action ballot order

....

(3) A protected action ballot order must specify the following:

....

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

[17] The endorsement by employees of a protected action ballot is an essential prerequisite for the taking of protected industrial action. Section 409(2) states:

“409 Employee claim action

....

Protected action ballot is necessary

(2) The industrial action must be authorised by a protected action ballot (see Division 8 of this Part).”

[18] The phrase "the nature of the proposed industrial action" is very similar to the expression of the obligation on a party seeking to initiate protected industrial action under Division 1 of Part 3-3. Section 414(6) states:

“414 Notice requirements for industrial action

....

Notice requirements—content

(6) A notice given under this section must specify the nature of the action and the day on which it will start.”

[19] As the Full Bench in John Holland observed, s.459 deals with circumstances in which industrial action is authorised by a protected action ballot. Section 459(2) states:

“459 Circumstances in which industrial action is authorised by protected action ballot

....

(2) If:

(a) the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and

(b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;

then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).”

[20] Before considering the approach which the Courts and FWA have adopted with respect to the concept of the nature of the proposed industrial action, it is appropriate that I observe that these provisions are very similar to those which were prescribed in the precursor to the FW Act.

[21] The approach taken by FWA and the level of specificity required in a protected action ballot order has, in the main, been based on the premise that the ballot questions are largely the prerogative of the applicant union, but that these questions must enable employees to make a clear choice about whether to authorise or reject a form of action. FWA has accepted that the protected action ballot questions may be broadly cast such that they then allow a union, in concert with its members, to decide exactly what form of industrial action might ultimately be taken. Hence, the approach accepts a lower level of specificity about the proposed industrial action at the time of the ballot to that which would be expected prior to the initiation of the protected industrial action.

Numerous examples of this approach can be discerned. One of the more recent examples is the Full Bench decision in John Holland. In that matter the Full Bench stated:

“[16] We draw attention in particular to the requirement for notice in ss.414(1) and (6). If the action specified in the notice is not authorised by the relevant ballot, any action taken pursuant to the notice will not be protected industrial action. For this reason there will be a natural tendency for bargaining representatives to frame ballot questions in a way which minimises the possibility that the industrial action eventually taken will fall outside the action authorised by the ballot. If the ballot questions describe industrial action in a general way it might subsequently be held that specific types of industrial action were not authorised. No doubt, for that reason, a number of bargaining representatives have drafted ballot applications containing very detailed questions.

....

[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.”

[22] As the Full Bench in Country Fire Authority 8, a decision determined under the previous Workplace Relations Act, observed:

“[22] The Federal Court has found serious questions to be tried in relation to whether notices adequately describe the nature of the intended industrial action in PWB Anchor v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1482 (13 October 2000) per Goldberg J at paragraphs 24 and 25; Adelaide Brighton Cement v Australian Workers Union [2002] FCA 601 (10 May 2002) per Von Dossa J. at paragraphs 20-22 and Burswood Resort (Management) Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union [1999] FCA 1443 (27 August 1999) per Carr J at paragraphs 13-20.”

[23] A consideration of those authorities confirms that the catalyst for the initiation of those proceedings was generally the imminent threat of industrial action. As would be expected, there is not normally the same degree of urgency associated with a protected action ballot. It is conceivable that the Court could adopt a position which required greater consistency in the concept of the nature of the proposed industrial action put to employees for endorsement and the nature of the industrial action which is actually taken by employees. However, on the current authorities, it is clear that the capacity exists for more broadly cast questions to be put to employees in a protected action ballot and for the industrial actions propose to clarify the specific actions to be taken.

The question proposed by the AMWU

[24] The first part of this question goes to the absence of a limitation on the number of bans. I do not regard this component of the question as unclear. It simply reflects a request that employees endorse a multiplicity of bans. The second part of the question goes to the extent to which those bans may be indefinite or periodic. Again, it reflects a request that employees endorse bans of an indefinite or periodic nature. To the extent that it incorporates more than one question, I do not believe that those questions are so different in this situation that it detracts from the meaning of the endorsement for industrial action which is sought. Finally, the reference to bans on specified duties or tasks is indeed very broad. I consider it to be marginally broader than the question endorsed by Watson VP in Coates Hire. I have not been assisted by the absence of any detailed information about the supervisory tasks undertaken by the employees to be covered by this agreement. Nevertheless, I consider that the general nature of the question invites employees to endorse the taking of bans on aspects of their work. On balance, and on the approach adopted in John Holland, I consider this to be a legitimate request for authorisation of industrial action.

[25] That said, I do not regard the question to be anywhere near adequate for the purposes of a notice of employee claim action pursuant to s.414. It does not define what actions will be taken or the basis upon which those actions will occur. In my view unless the question is substantially refined in the notice of intended industrial action it could leave the AMWU and, most particularly, employees themselves at a very real risk of taking industrial action which would not be regarded as protected industrial action on the approach generally applied by the Courts.

[26] Further, to the extent that particular industrial action is proposed to be based on this question, I consider that there is a risk that the question could be held to be so vague that it did not enable employees to properly endorse a particular form of industrial action. Consequently, and notwithstanding the conclusion I have detailed above, I propose to give the AMWU a brief period of time in which it may consider whether it wishes to clarify this question so as to make it more specific and hence better protect the position of its members.

[27] As a secondary argument, the ASC asserts that, the disputed question means that the employer has less opportunity to understand what action is proposed and take appropriate action in this respect. I do not agree that s.441 provides for consideration of the proposed questions in terms of their effect on the employers business. However, clearly an employer has the capacity to argue that industrial action is not authorised protected industrial action. The notice requirements for the taking of industrial action serve that function and the obvious capacity exists for access to the Courts or to FWA for Orders stopping industrial action.

[28] Section 414(2) requires that an employer must be given at least three working days notice of the industrial action to be taken. Section 443(5) gives FWA the capacity to extend this 3 day limit up to 7 working days. This section states:

“443 When FWA must make a protected action ballot order

....

(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.”

[29] There could be many circumstances which give rise to the requisite satisfaction that the three day notice period should be extended. An example is the effect of the intended action on a particular business or industry. Secondly, the nature of the action and the extent to which additional time might be required to enable an employer to prepare for that action might be such a circumstance. Thirdly, a situation where a more generic form of proposed industrial action has been endorsed in a protected action ballot on the basis that the notice of the intended industrial action must be further refined could give rise to an extension of the three day time limit.

[30] If the disputed question remains unchanged, I propose to allow the ASC an opportunity to make a request for an extension of the three day time limit set out in s.414. It appears to me that this very broad question may represent an exceptional circumstance which would warrant the extension of this time limit on the basis that the nature of the currently proposed industrial action does not give the ASC the capacity to plan a response until, or unless, properly constituted notices consistent with s.414 are received.

Conclusion

[31] The only matter in dispute relative to this application goes to the final question proposed to be put to employees. On the information provided to me I am satisfied that the essential prerequisites for the making of a protected action ballot order have been met. Subject to the qualifications I have listed below, I propose to issue an Order which generally reflects the terms of the draft provided by the AMWU on, or shortly after 28 October 2011.

[32] In this decision I have expressed my reservations about the nature of the question in dispute and the potential for a question of this broad nature to be challenged in the event that it is relied upon as the basis for protected industrial action. If the AMWU wish to change the question, advice to this effect should be provided to me and to the ASC by 25 October 2011.

[33] The ASC has until close of business 27 October 2011 to provide advice to me, and to the AMWU, about its position with respect to any changes to the question or to whether an extension of the three day period specified in s.414 should be granted pursuant to s.443(5).

[34] In that latter event, the AMWU will be given an opportunity to respond to the ASC position.

SENIOR DEPUTY PRESIDENT

Appearances:

P Bauer for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

A Short counsel for ASC Pty Ltd.

Hearing details:
2011.
Adelaide:
October 12.

 1   ASC submission of 17 October 2011, para.1

 2   Ibid, para.3

 3   Ibid, paras.8-10

 4   [2010] FWAFB 526

 5   AMWU submission of 14 October 2011, para.8

 6   Ibid, para.9

 7   [2009] FWA 262

 8   PR973841

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