"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)

[2013] FWC 4913

[2013] FWC 4913

FAIR WORK COMMISSION

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)
(B2013/183)

COMMISSIONER WILSON MELBOURNE, 23 JULY 2013

Proposed protected action ballot by employees of the Metropolitan Fire and Emergency Service Board.

[1] This is an application for a protected action ballot order by members of the Workers Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) employed by the Metropolitan Fire and Emergency Service Board (MFB).

[2] Mr B. Terzic and Mr T. Mavromatis appeared for the AMWU, and Mr J. Tuck (solicitor, with permission) and Mr S. Hogan appeared for the MFB.

[3] The application was made pursuant to s.437 of the Fair Work Act 2009 (“the Act”) and dated 18 July 2013. The application referred to the bargaining for a replacement agreement of the Metropolitan Fire an Emergency Service Board Corporate and Technical Staff Agreement 2008, however, after the hearing on 19 July 2013 it was realised to be an error and I accepted a request to amend the application to instead refer to the bargaining for a replacement agreement of the Metropolitan Fire and Emergency Services Board Administrative and Operational Support Staff Agreement 2005 (as varied in Order PR983901). 1 The Nominal Expiry Date for the Agreement is 30 June 2011.2

[4] The Applicant seeks to ballot all employees of MFB who will be covered by the proposed enterprise agreement and for whom the AMWU is the bargaining representative.

SUBMISSIONS

[5] A hearing of the parties was convened on 19 July 2013, consistent with the legislative requirement in s.441 of the Act that FWC must, as far as practicable, determine a protected action ballot order within 2 working days after the application is made.

[6] The material before me consists of the application as amended by the AMWU; a form of Order provided by the AMWU, also as amended; email correspondence; and the submissions of both in the course of the hearing. I have considered all this material and have taken it into account in this decision.

[7] In the course of the hearing, the AMWU referred to its amended application and its context within the bargaining the union has been conducting for some time. Mr Terzic reported on discussions with the MFB about the proposed Order; whether it could be made; and a proposed further amendment to the application to reflect the MFB’s apprehension of employee and community safety should not only the Order be made but also that employees vote in favour of the questions and certain protected industrial action is then undertaken.

[8] Mr Tuck, for the MFB, submitted that while the MFB does not oppose the making of the Order, it wished two matters to be noted.

[9] Firstly, the MFB reserved its rights under the Fair Work Act in the event it perceived the safety of the community would be endangered in the event of protected industrial action. In this respect, the MFB drew attention to the undertaking given by the AMWU to Commissioner Roe in 2011 in the context of an application by them under s.424 of the Act for the suspension or termination of protected industrial action. 3 Relevantly, that undertaking referred to an acceptance by the AMWU about an operational requirement that 98% of its appliance are available for use.

[10] Secondly, the MFB submitted it had sought and obtained agreement from the AMWU that if an Order is to be issued by the FWC in this matter, it would be appropriate that, pursuant to the provisions of ss.443(5) the period of written notice for the commencement of employee claim action should be extended from 3 working days to 5. Mr Terzic confirmed the AMWU’s agreement to this amendment to the draft Order, with which I will deal shortly.

CONSIDERATION

[11] I am satisfied that the application has been made in accordance with s.437 of the Act, which specifies who may make an application; what must be specified in the application; and what material must accompany the application.

[12] The provisions of s.438 of the Act include that if one or more enterprise agreements cover the employees who will be covered by the proposed enterprise agreement, an application for a protected action ballot order must not be made earlier than 30 days before the nominal expiry date of the enterprise agreement. I find this provision to have been met. The nominal expiry date of the existing agreement is 30 June 2011 and the AMWU’s application for a protected action ballot order was made on 18 July 2013.

[13] In considering this matter I must apply s.443 of the Act which provides:

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.

(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.

[14] Paragraph 443(1)(b) requires the FWC to be satisfied the Applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. The subject phrase has been considered and determined by the Full Bench in Total Marine Services Pty Ltd v Maritime Union of Australia. 4 I am satisfied the AMWU’s conduct in this matter is consistent with the requirements of ss.443(1)(b) in the manner construed by the Full Bench. I take into account the circumstances of the bargaining as submitted by the parties, and as set out in detail in the decision of Deputy President Smith from 14 June 2013, to which the parties referred me, dealing with an earlier aspect of the bargaining between the AMWU and the MFB.5

[15] Having decided all of these matters and that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the NUW and will issue an Order to this effect.

[16] Subsection 443(5) enables the extension of the period of written notice referred to in paragraph 414(2)(a) beyond 3 working days and up to 7 working days, in the event “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” an extension. (emphasis added) In submissions, Mr Tuck referred to the potential for protected industrial action in relation to the repair and maintenance of certain equipment, namely breathing apparatus (BA) and Emergency Medical Response kits (EMR). The consequence of inadequate notice of protected industrial action might mean insufficient BA and EMR equipment, which might endanger fire-fighters or other emergency response personnel, or the community.

[17] I am satisfied that this potential is an exceptional circumstance which justifies an extension to the written notice for the commencement of employee claim action provided for in paragraph 414(2)(a) of the Act, and that it is appropriate in all the circumstances to extend the period from 3 working days to 5. The Order in this matter will include that extension

COMMISSIONER

Appearances:

Mr B. Terzic and Mr T. Mavromatis, for the AMWU

Mr J Tuck (solicitor) and Mr S. Hogan for the MFB.

Hearing details:

2013,

Melbourne:

July 19

 1   AG848942, PR983901

 2   ibid, at Paragraph 4

 3   Metropolitan Fire and Emergency Services Board v AMWU, Statement by Commissioner Roe, 26 August 2011, PR513941

 4   [2009] FWAFB 368, Watson VP, Hamberger SDP, Roberts C, 9 October 2009

 5   Metropolitan Fire and Emergency Services Board v AMWU, [2013] FWC 3806, Smith DP, 14 June 2013

Printed by authority of the Commonwealth Government Printer

<Price code C, PR539196>