"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v The Metropolitan Fire and Emergency Service Board (MFB)
[2011] FWA 5988
•2 SEPTEMBER 2011
[2011] FWA 5988 |
|
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)
v
The Metropolitan Fire and Emergency Service Board (MFB)
(B2011/208)
National Union of Workers
v
Metropolitan Fire and Emergency Services Board
(B2011/3350)
COMMISSIONER ROE | MELBOURNE, 2 SEPTEMBER 2011 |
Proposed protected action ballot by employees of The Metropolitan Fire and Emergency Service Board (MFB).
[1] These applications are for a protected action ballot by members of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the National Union of Workers (NUW) employed by the Metropolitan Fire and Emergency Services Board (MFB). The applications are made pursuant to s.437 of the Fair Work Act 2009 (the Act). The Applications were made in the afternoon of 31 August 2011 and were determined on 1 September 2011. I advised the parties that I intended to grant the Applications to issue orders for the protected action ballots.
[2] The applications seek two separate protected action ballots, one in respect to AMWU members and the other in respect to NUW members. Consistent with Section 442 of the Act I determined to hear the matters together since they relate to employees of the same employer and I was satisfied that dealing with the applications at the same time would not unreasonably delay the determination of either of the applications.
[3] The matter was heard on 1 September 2011. Ms Elizabeth McGrath and Mr Tony Mavromatis appeared for the AMWU and the NUW and Mr John Tuck appeared with leave for the MFB.
[4] The applicants seek to ballot employees of MFB who would be subject to a proposed enterprise agreement and who are members of the AMWU and NUW respectively.
[5] On 14 July 2011 I published a decision and issued orders for a protected action ballot in respect to the AMWU and the MFB (Prints 511574, 512275 and 511577) and on 19 July 2011 I published a decision and issued orders for a protected action ballot in respect to the NUW and the MFB (Prints 512192 and 512194). The ballots were successful. On 24 August 2011 the MFB made an application pursuant to Section 424 of the Act seeking to suspend the protected industrial action notified by the AMWU. Following commencement of the hearing of that matter on 26 August 2011 the parties agreed I should conduct a conference. The AMWU gave an undertaking arising from those proceedings which was accepted by the MFB and on that basis the MFB agreed not to proceed with their Application at that time.
[6] The two new applications contain the same questions, seeking authorisation for thirteen forms of industrial action. The previous ballots contained nine questions. Seven of the questions from the previous ballot are in the new ballot applications. These cover the following types of ban: paperwork, computer work, transporting vehicles, alterations or modifications to vehicles, cooperation with contractors, and trucks coming into the workshop if they are not in commission or do not have a full crew.
[7] In the earlier ballot orders I required, with the consent of the parties, that, in regards to “a ban on any work performed at the roadside with regard to servicing vehicles,” pursuant to Section 443(5) the period of written notice prior to taking the action specified in the ballot question should be 7 days rather than the standard requirement for 3 days notice as specified in Section 414(1).
[8] The MFB raised three concerns about the applications in these proceedings:
- Firstly, they gave notice that certain types of action might compromise their capacity to deliver an essential service and this might lead them at a later stage to seek to suspend or terminate certain types of action. I did not take this to be a submission in opposition to the granting of the orders proposed.
- Secondly, they raised concern with the clarity of certain ballot questions. I conducted a conference which resolved those issues of concern. The AMWU and NUW agreed to my amending certain questions in the draft orders to overcome those issues of concern.
- Thirdly, they made submissions that the period of notice required for the industrial action should be extended from three to seven days in respect of certain forms of the proposed industrial action. This matter was also discussed in conference and arising from that conference, having heard the submissions of the parties, I indicated my views on that question and gave the parties an opportunity to respond to those views.
[9] As a result of the conference on the second issue raised above I will amend the question in respect to a ban on paperwork by deleting the words in brackets “any requisitions are to be prepared by Engineering Officers and Executive Managers.” I will amend the question in respect to a ban on alterations and modifications to vehicles by adding the words “excluding maintenance and servicing work.” I will amend the final question to read “A ban on working on trucks coming into the workshop if they are not in commission and do not have a full crew.”
[10] The legislation does not prevent more than one ballot occurring in respect to bargaining for a single enterprise agreement.
[11] In considering this matter I must apply s.443 of the Act which provides:
“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.”
[12] To begin, I am satisfied that the Applications have been made in accordance with s.437 of the Act. I am satisfied that the Applications were served upon the Respondent and the AEC as the ballot agent as required by Section 440 of the Act. I am satisfied that the Applications were not made earlier than 30 days prior to the nominal expiry date of the current agreement, as required by Section 438 of the Act. The current Agreement has a nominal expiry date of 30 June 2011.
[13] The next matter to which attention must be given is whether or not the Applicants have been, and are, genuinely trying to reach an agreement with the employer on behalf of the employees who are to be balloted. I am satisfied, after hearing submissions from the AMWU that this is in fact the case. The MFB made no submissions that suggested that the AMWU and NUW were not genuinely trying to reach an agreement.
[14] I am satisfied that the questions adequately specify the nature of the proposed industrial action and meet the requirements of Section 443(3)(d). The scope of the Agreement sought by the AMWU and NUW adequately describes the group of employees to be balloted as required by Section 443(3)(b). The AEC will be the ballot agent.
[15] Having decided that s.443(1)(a) and (b) have been complied with, I must make the protected action ballot orders, as sought by the AMWU and the NUW. At the conclusion of the proceedings I advised the parties that I would issue the Orders. I have published those Orders separately.
[16] As discussed earlier the MFB made application for the inclusion in the Order of a requirement pursuant to Section 443(5) that the period of written notice prior to taking the action specified in the ballot questions should be 7 days rather than the standard requirement for 3 days notice as specified in Section 414(1). There was no evidence provided by the MFB in support of this application.
[17] For the reasons I outlined in my earlier decision (Prints 511574 and correction Print 512275), I do not accept that exceptional circumstances exist which would justify the extension of the period in respect to the proposed stoppages of work. The MFB did not argue that a greater period of notice was justified in respect to bans on higher duties, paperwork, attendance at meetings or computer work. There was nothing in the submissions which convinced me that exceptional circumstances exist justifying a longer period of notice in respect to a ban on cooperation with contractors. The MFB argued that exceptional circumstances exist that justified a longer period of notice in respect to a ban on roadside servicing and a ban on transporting of vehicles.
[18] In my earlier decisions I agreed that the Orders should require 7 days rather than the standard requirement for 3 days notice as specified in Section 414(1) in respect to one form of action namely “a ban on any work performed at the roadside with regard to servicing vehicles.”
[19] However, since that time the AMWU provided an undertaking which was accepted by the MFB in respect to that action. That undertaking was included in a Statement I issued to the MFB and AMWU on 26 August 2011 as follows:
“1. It is accepted by the AMWU that the MFB has an operational requirement that 98% of its appliances are available for use. This currently means that 91 appliances must be active. This also means that there must be 5 transporters active with their equipment. The AMWU undertakes to ensure that its bans do not undermine this requirement.
2. If the 98% level is or is likely to be breached the parties will consult immediately to ascertain whether the 98% level is about to be breached. If this is established the bans will be lifted until the 98% level is maintained. If there is a dispute over the 98% the matter must be elevated to Senior MFB management, Mr Sean Hogan, or his nominee and the AMWU organiser, Mr Tony Mavromatis, or his nominee. If the matter is not resolved within 4 hours the ban will be lifted in respect to the disputed appliance or appliances. The matter may then be referred to Fair Work Australia for review if the dispute persists.
3. This ban does not prevent AMWU members transporting roadworthy vehicles; or BA sets and oxy kits to 38 station or the changeover of BA batteries at stations.
4. The AMWU will not proceed with the notified ban on call backs.”
[20] I am satisfied that if this undertaking applies in respect to the industrial action proposed by the protected action ballots then exceptional circumstances do not exist which justify a longer period of notice in respect to any of the forms of industrial action proposed.
[21] The AMWU and NUW indicated that the commitment that industrial action would not compromise the operational requirements as set out in point 1 of the undertaking does apply to the industrial action proposed in the ballots. However, they indicated that there was a concern with some aspect of the wording of the undertaking as set out in the statement quoted above. The parties agreed to meet and seek to resolve that concern.
[22] If the AMWU and NUW confirm within the next seven days that the undertaking given in B2011/3316 as set out in the Statement of 26 August 2011, or alternatively that Statement as amended by agreement with the MFB, applies to the industrial action proposed in the protected action ballot then I am satisfied that exceptional circumstances do not exist which would justify a longer notice period. If there is no such confirmation within seven days the MFB is at liberty to seek to relist these Applications to determine, after hearing any evidence, whether or not the Orders should be amended to provide for a longer period of notice for certain actions specified in the ballot questions.
[23] I will issue the Orders as proposed by the AMWU and the NUW with the amendments to the ballot questions as outlined earlier.
COMMISSIONER
Appearances:
Ms Elizabeth McGrath and Mr Tony Mavromatis appeared for the AMWU and the NUW.
Mr John Tuck appeared with leave for the MFB.
Hearing details:
Melbourne
2011
September 1
Printed by authority of the Commonwealth Government Printer
<Price code C, PR514164>
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