“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Note Printing Australia Limited

[2018] FWC 3840

[2018] FWC 3840

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.459—Protected action

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Note Printing Australia Limited
(B2018/468)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 28 JUNE 2018

Application to extend the 30-day period in relation to B2018/256.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 21 June 2018. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) applied to the Fair Work Commission (the Commission), pursuant to s.459 of the Fair Work Act (the Act) for an order to extend the 30-day period for protected action. The application was made on 12 June 2018.

[2] The AMWU is a bargaining representative for a proposed agreement to cover certain employees of Note Printing Australia Limited (NPA).

[3] On 11 April 2018, I made a protected action ballot order on application by the AMWU for there to be conducted a ballot of employees represented by the AMWU as bargaining representative and who will be covered by the proposed agreement. Pursuant to the order 1a ballot was conducted by the Australian Electoral Commission (AEC) and the AEC declared the ballot results on 11 May [2018].

[4] In summary, there were 21 questions in relation to particular forms of proposed industrial action for which authorisation was sought in the ballot. There were 120 employees who were included in the roll of voters. One hundred envelopes were returned, two envelopes were rejected pursuant to some preliminary scrutiny, and the remaining 98 were admitted to scrutiny and were thereafter admitted as part of the ballot.

[5] The results of the ballot in respect of each of the forms of industrial action for which authorisation was sought are set out in the declaration, but in summary form variously 95, 96 or 97 of the 98 employees who voted, voted to approve each of the forms of industrial action for which authorisation was sought.

[6] Section 459 of the Act relevantly provides that industrial action by employees is authorised by a protected action ballot if the action relevantly commences during the 30 day period, starting on the day of the declaration of the results of the ballot, that day being 11 May 2018, or if the period has been extended by the Commission during the extended period.

[7] Some of the industrial action that is authorised by the ballot has been engaged in by employees during the 30 day period, which is set out in s.459(1)(d)(i). Some of the industrial action has not. By application lodged on 12 June 2018, the AMWU has applied for an extension of the 30 day period. It is uncontroversial that the period has not previously been extended.

[8] NPA opposes the grant of the extension on several grounds. Those grounds can be summarised as follows. First, NPA contends that the AMWU has not met with it for some period. The last meeting according to it was held on 31 May 2018. NPA provided a further proposal to the AMWU on 5 June 2018. It says that the absence of contact from the AMWU suggests that it is not bargaining in good faith or meeting its bargaining obligations.

[9] Secondly, NPA says that a refusal to grant an extension of time will not prejudice the AMWU or the employees because the majority of action which was set out in the protected action ballot, and for which authorisation has been given, has been taken during the 30 day period. In its view, that gives the AMWU and employees sufficient armoury to further prosecute its claims for a proposed agreement.

[10] Thirdly, NPA contends that based on conversations that it has had with some of its employees, there is no longer any widespread appetite for further industrial action, and in particular for industrial action the result of which would be a loss in pay. It says that the industrial action that is to be taken if the 30 day period is extended falls in that latter category.

[11] Fourthly, NPA says that it would not be consistent with the legislative scheme, in particular ss.3 and 436 not to grant an extension, and this is particularly so in circumstances where it says the mood of the employees who would participate in industrial action has changed.

[12] Section 459(3) provides the Commission with a discretion to extend the period within which industrial action must commence by up to 30 days if, first, the applicant, in this case the AMWU, for a protected action ballot order applies for the period to be extended, and secondly, that the period has not been previously extended. As I think I have already indicated, there is no dispute with regard to these elements and I find that the jurisdictional prerequisites set out in section 439(3)(a) and (b) have been met; that is the AMWU is a bargaining representative and applicant for the protected action ballot order, it has applied for an extension of the 30 day period, and the period in question has not previously been extended by any order of this Commission.

[13] Section 459(3) contains essentially two discretionary elements. The first is whether to extend the period, and the second is to determine the period of the extension. If the Commission is minded to extend the period, the latter discretion is confined so that the period of extension can be no greater than 30 days.

[14] Section 459 is a broad discretion, but it is one that is to be exercised having regard to the evident statutory purpose of the provision, read in the context of the protected industrial provisions of the Act and of the Act as a whole, and applied in the circumstances that the Commission faces in respect of a particular application.

[15] The objects or object of the Division 8, in which s.459(3) appears, are set out in section 436. That section provides that 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 industrial action for a proposed enterprise agreement.

[16] The making of a protected action ballot order and the result from the ballot that is conducted gives effect to that object. The capacity to extend the period within which industrial action may be commenced is also consistent with that object. Were it otherwise, one would expect that there would not be a capacity to extend the period at all, or that the decision would be more circumscribed.

[17] Turning then to the objections advanced by the employer. Firstly, those objections that concern an allegation that the AMWU has failed or is failing to meet its good faith bargaining obligations. It is to be observed that the Act establishes mechanisms for an aggrieved bargaining party to deal with such allegations. There is capacity in the Act for good faith bargaining orders to be made, particularly orders as concerns a failure to attend or to participate in meetings, and NPA can, but there is no suggestion that it has, seek to utilise these procedures in order to compel the AMWU, if the AMWU is not meeting its good faith bargaining obligations, to meet them.

[18] NPA also has available to it the capacity to apply under s.240 of the Act for the Commission to deal with a bargaining dispute. It is not uncommon for parties to have resort to those provisions to break deadlocks in bargaining, particularly where it is suggested that one party is delaying negotiations.

[19] There is no suggestion that the AMWU is no longer genuinely trying to reach an agreement with NPA. In these circumstances, the grounds so far as they concern good faith bargaining obligations do not weigh against the exercise of my discretion.

[20] As to the asserted change in mood by employees about participation in industrial action. It is firstly to be observed that there is no evidence before me about any change in mood or any indication that some or a significant number of employees no longer wish to participate in the industrial action. Moreover, I am not prepared to infer a change in mood given the strong result of the protected action ballot, the outcome of which I have earlier discussed.

[21] In addition, it must be remembered that employees are under no obligation to participate in industrial action that the AMWU may notify, even if those employees had approved the industrial action during the course of the ballot. These employees cannot be forced, nor can they be coerced into taking industrial action. Ultimately, if the mood towards industrial action has changedpresumably this will be reflected in the participation rate of employees in relation to any future notified industrial action.

[22] Absent any evidence of a change in mood about industrial action, I am not persuaded that the grounds of these objections weigh against the exercise of my discretion. There is also no suggestion that the composition of the workforce has changed in any significant way so that the circumstances would suggest that a further application and further ballot was warranted in the circumstances. The absence of any change in the composition of the workforce is a matter that weighs in favour of the exercise of my discretion.

[23] In addition there is the cost, inconvenience and delay of a requirement to make a further application for a protected action ballot order and the conduct of a further protected action ballot in circumstances where there is no evidence of a change in mood and no other evidence that a further ballot would be warranted. This matter also weighs in favour of the exercise of my discretion.

[24] Finally there is the deprivation to the AMWU and its members of the capacity to take certain forms of protected industrial action in support of advancing claims for the proposed agreement. The action, which will be the subject of any notices were I to grant an extension of time, very recently received overwhelming approval by a significant number of employees who participated in the ballot. That they are able to take other industrial action which has already taken is beside the point.

[25] This action was approved presumably as part of the scheme or suite of industrial action that the AMWU and its members sought to have available to them to apply legitimate pressure upon an employer in support of the proposed enterprise agreement. This matter also weighs in favour of the exercise of my discretion to extend the period.

[26] In the circumstances I propose to exercise my discretion to extend the period in s.459(1)(d)(i). That then brings me to the question of the period that should be extended. No party made any particular submission about the length of the extension. I consider that in the circumstances it is appropriate to simply extend the period by 30 days and I propose to do so. I therefore grant the application by the AMWU to extend the 30 day period within which industrial action that has been authorised by a protected action ballot be extended by a further 30 days.

[27] An order has separately been issued in PR608353.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR608555>

 1   PR601890.