Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union and others
[2012] FWA 3581
•26 APRIL 2012
[2012] FWA 3581 |
|
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 and others
(B2012/656, B2012/659, B2012/660, B2012/689)v
Boeing Aerostructures Australia Pty Limited
COMMISSIONER MACDONALD | SYDNEY, 26 APRIL 2012 |
Applications made for protected action ballots by employees of Boeing Aerostructures Australia Pty Limited - related applications heard together - one application (the CEPU) withdrawn on the record - respondent opposed applications - respondent challenged the ambiguity and particularity of parts of the “Question(s) to be put” - union’s response included off the record discussions to address issues raised by the respondent - subsequent to the Hearing, Amended Form F34 applications were provided to Fair Work Australia setting out correct amended rewording of “Questions(s) to be put”- subsequent to the Hearing, the CEPU lodged another application - respondent did not oppose application being considered with the other two applications - whether unions genuinely trying to reach agreement - applications granted.
BACKGROUND
[1] Three applications for protected action ballots were made by these trade union organisations:
(a) B2012/659 - The Australian Workers Union (the AWU);
(b) B2012/656 - Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (the AMWU) and;
(c) B2012/660 - Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU).
The applications were respectively made on 4, 3, 4 and 16 April 2012.
[2] The applications were made pursuant to section 437 of the Fair Work Act 2009 (the Act) for a protected action ballot to be undertaken by members of the three trade unions, being members employed at the Bankstown (Sydney) operations of Boeing Aerostructures Australia Pty Limited (the respondent or the company).
[3] The company’s legal representative advised the office of Fair Work Australia (FWA) late on 4 April 2012 (Easter Thursday), that the three applications would be opposed. The Hearing was set down for Tuesday, 10 April 2012.
[4] The AWU was represented by Mr Stephen Crawford who also appeared as advocate for the AMWU. Mr Aaron McKinnon appeared for the CEPU.
[5] The company was represented by Mr Stephen Price, solicitor. Also in attendance were the company’s officers of Ms J Nand (In-house Counsel), Ms K Knowles (HR Manager) and Mr M Sorrenson (Operations Manager).
[6] During the course of the Hearing, I received evidence (documentary) and oral submissions from all parties.
[7] Mr Price, during the Hearing, sought confirmation from the three trade unions that each had complied with section 440 of the Act. That section states that an applicant for a protected action ballot order must, within 24 hours of making that application, give a copy of the application to the employer of the employees to be balloted and, relevantly in this case, give a copy to the Australian Electoral Commission. Evidence was received confirming that the AWU and the AMWU had complied with both requirements of this section. The CEPU confirmed providing a copy of its application to the employer / the company but advised that no copy had been provided to the Australian Electoral Commission. Consequently, the CEPU withdrew on the record, its application for a protected action ballot order.
[8] During the Hearing, Mr Price made submissions that question four of the unions’ application (Question(s) to be put) lacked particularity and had ambiguity and this represented reasons for FWA rejecting the unions’ applications. Mr Crawford for the unions rejected that submission. However, he offered to have off the record discussions with the respondent with a view to amending question four in order to overcome the issues raised by the respondent. Those off the record discussions were held. On resumption of the Hearing, FWA was advised that certain aspects of question four had been amended by consent. Subsequent to reserving my Decision in these applications, my office received Amended Draft Orders and Form F34 applications from the AWU and the AMWU which went to a rewording of question four. My office also received an email from Mr Price confirming that the amended application and draft order reflected the consent position recorded previously by the parties.
[9] Subsequent to the Hearing, the CEPU put on another section 436 protected action ballot order application. The application was made on 16 April (B2012/689). In related proceedings, initiated by the respondent, FWA was advised by the respondent that it did not oppose the application being considered, along with the other two applications, as part of FWA’s reserved decision making process.
STATUTORY PROVISIONS
[10] The Act relevantly provides as follows:
‘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 FWA 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 FWA 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) are represented by a bargaining representative who 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.
438 Restriction on when application may be made
(1) 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, or the latest nominal expiry date of those enterprise agreements (as the case may be).
(2) To avoid doubt, making an application for a protected action ballot order does not constitute organising industrial action.
439 Joint applications
Without limiting section 609, the procedural rules may provide for the following:
(a) how a provision of this Act that applies in relation to an applicant for a protected action ballot order is to apply in relation to joint applicants for such an order;
(b) the joinder, with the consent of each existing applicant, of one or more bargaining representatives to an application for a protected action ballot order;
(c) the withdrawal of one or more applicants from a joint application for a protected action ballot order.
440 Notice of application
Within 24 hours after making an application for a protected action ballot order, the applicant must give a copy of the application to the employer of the employees who are to be balloted, and:
(a) if the application specifies a person that the applicant wishes to be the protected action ballot agent—that person; or
(b) otherwise—the Australian Electoral Commission.
441 Application to be determined within 2 days after it is made
(1) FWA must, as far as practicable, determine an application for a protected action ballot order within 2 working days after the application is made.
(2) However, FWA must not determine the application unless it is satisfied that each applicant has complied with section 440.
442 Dealing with multiple applications together
FWA may deal with 2 or more applications for a protected action ballot order at the same time if:
(a) the applications relate to industrial action by:
(i) employees of the same employer; or
(ii) employees at the same workplace; and
(b) FWA is satisfied that dealing with the applications at the same time will not unreasonably delay the determination of any of the applications.
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.
SUBMISSIONS
For the Unions
[11] Mr Crawford of the AWU made the submissions on behalf of his union and the AMWU in support of the applications for protected action ballot orders. Mr McKinnon of the CEPU gave submissions in support of the applications. Witness statements from three union officials engaged in the bargaining negotiations with the company were tendered, without objection, as exhibits: George Simon of the AMWU 1 Paul Farrow of the AWU2 and Steven Robinson of the CEPU.3 These witnesses were not required for cross-examination.
[12] Mr Crawford, in his submissions, addressed the procedural requirements of sections 437, 438 and 440. In particular, he relied upon the content of the AWU and AMWU witness statements to support the unions’ claims that they were genuinely trying to reach agreement with the respondent.
[13] Mr McKinnon of the CEPU relied upon that union’s witness statement to say that his union was genuinely trying to reach agreement with the company.
For the Company
[14] Mr Price, solicitor for the company, put submissions opposing the unions’ application for protected action ballot orders.
[15] Arising out of his preliminary submission, the CEPU withdrew its application for a protected action ballot order as the CEPU had not complied with section 441(2) of the Act. That section stipulates that FWA must not determine the protected action ballot application unless FWA is satisfied that an applicant for protected action ballot order has complied with section 440. That latter section stipulates that an applicant must give a copy of its application to the company (the employer of the employees to be balloted) and also a copy to a named protected action ballot agent or the Australian Electoral Commission. The forgoing twofold requirement must be done within 24 hours after making the application. The CEPU had only notified the company and hence had not complied with the second limb of section 440.
[16] Subsequent to reserving my decision on the remaining two applications, the CEPU lodged another application for a protected action ballot order (B2012/689). This application was lodged on 16 April 2012. In related proceedings, involving the same parties, the company advised it was not opposed to this fresh CEPU application being considered by FWA as part of the other two union applications for protected action ballot orders.
[17] Mr Price then put submissions on why FWA should not grant the unions’ applications. He referred to questions four (4) of the proposed orders: “The question(s) to put to the employees who are to be balloted are ...” He put that the range of industrial action set out in question 4 contained some ambiguity and consequently there would be confusion by employees as to whether they should take industrial action and for how long. The ambiguity was exampled by a reference in question four to a ban or the use of computers, which might refer to computers used by clerical and administrative employees or refer to computerised workshop machinery operated by aerospace workers or technicians. The ambiguity could result in a category of employee taking industrial action but being a category not intended to take industrial action. If a wrong category of employees (as well as the union’s intended category) took industrial action, it could seriously disrupt or cause a cessation of all work.
[18] In conclusion, Mr Price said that the unions were not genuinely trying to reach an agreement.
Unions in Reply
[19] Mr Crawford said that the criticism of question four was one that could be described as criticism of the “rolled up” question, being the range of industrial action set out in question four. Mr Crawford referred to case law to support that it was acceptable to have question four set out in a “rolled up” or “omnibus” format: CPSU v Australian Customs and Border Protection Service. 4
[20] Mr Crawford addressed the ambiguity issues raised by Mr Price and offered to go off record and speak to the company representatives about rewording question four to remove any ambiguity. That offer was accepted and FWA was advised, on resumption of the hearing, that an agreement had been reached to make some slight amendments to question four in order to allay some concerns from the company about what was being asked of employees. An amended protected action ballot order was then foreshadowed to FWA. Subsequent to the hearing and the reserving of my decision, FWA received amended applications from the AWU and the AMWU.
CONSIDERATION
Prerequisites for Section 437 Application
[21] There are certain prerequisites for obtaining a protected action ballot order. Those prerequisites are considered below.
[22] The unions are bargaining representatives for different categories of employees and hence are entitled to make their applications for protected action ballot orders: s.437(1). The applications are not in respect of a greenfields agreement or multi-enterprise agreement operations: s437(2).
[23] The amended applications and CEPU application specify the group or groups of employees to be balloted: s.437(3)(a) and the question to be put to the employees to be balloted including the nature proposed industrial action: s.437(3)(b).
[24] The Australian Electoral Commission is conducting the ballot and hence s.437(4) has no application.
[25] The company did not submit that the applications infringed s.437(5).
[26] Two of the unions had complied with sections 441 and 440 of the Act. Subsequently, the CEPU complied with these sections by making a fresh application.
[27] There were multiple applications before FWA but this was not an issue of concern for FWA: s.442.
[28] Finally, FWA now deals with section 443 of the Act: When FWA Must Make A Protected Action Ballot Order. There are two limbs to section 443(1). The first limb is satisfied in that applications have been made: s.443(1)(a).
[29] The second limb is that FWA is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees to be balloted: s.443(1)(b). The reading of this second limb makes it clear, that there is an onus on any applicant for a protected action ballot order, to show that it has genuinely tried to reach an agreement.
[30] The meaning of “genuinely try to reach an agreement” was considered by a Full Bench in Total Marine Services Pty Ltd v Maritime Union of Australia 5:
“30] The requirement that an applicant for a ballot order genuinely try to reach an agreement and be continuing to do so at the time an application for a ballot order is made was a requirement in the Workplace Relations Act 1996. The wording of the relevant section has been altered because of the removal of a process of establishing a bargaining period during which protected action may be taken. The concept of genuinely trying to reach an agreement was dealt with in other parts of the Workplace Relations Act 1996, specifically in relation to the grounds for terminating a bargaining period.
[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. 2 It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.
[32] We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement. At the very least one would normally expect the applicant to be able to demonstrate that it has clearly articulated the major items it is seeking for inclusion in the agreement, and to have provided a considered response to any demands made by the other side. Premature applications, where sufficient steps have not been taken to satisfy the test that the applicant has genuinely tried to reach an agreement, cannot be granted.
[33] Arising from the submissions of the parties in the matter before him, Commissioner Thatcher considered a number of questions relevant to s 443(1)(b). He considered whether the MUA tried to get as far as it could in the negotiations but fell short of reaching a conclusion on the matter because the test involved a different question. In our view he was correct in that approach. He considered whether the MUA was bargaining in good faith as a relevant consideration to whether the MUA was genuinely trying to reach an agreement and again correctly in our view fell short of equating the concepts.”
[31] In light of that Full Bench authority, I will now consider the evidence put by each applicant for a protected action ballot order. Each applicant put on an uncontested witness statement which set out the negotiations that have taken place with the company.
[32] The nominal expiry date of the Boeing Aerostructures Australia Pty Ltd (Bankstown) Workplace Union Collective Agreement 2009-2012, is 31 March 2012.
[33] The three unions, as bargaining representatives, had put forward their log of claims to the company, following feedback from their respective memberships.
[34] There have been nine (9) lots of negotiation meetings between the unions and the company: from 1 December 2011 to 14 March 2012, inclusive.
[35] The parties have reached agreement on some items but no agreement on the following significant items: (a) wages; (b) closure of site payments; and (c) payment of entitlements on retrenchment.
[36] The unions deposed that they have been willing to discuss their claims with the company and have duly considered any offer or counter proposal which the company has made.
[37] The unions then deposed that the company has not met the significant items listed above. Those items are of a monetary value and are significant because of the upcoming retrenchments of employees due to the site’s closure.
[38] As to the foregoing outline of the negotiation process and, in particular, that the significant items have not been addressed from the unions’ perspective, and given that the company did not challenge that outline, nor question the good faith bargaining of the unions, then I am satisfied that the unions have genuinely tried to reach an agreement. I am also satisfied that the other prerequisites, considered above for the granting of a protected action ballot, have been met by the unions.
[39] Accordingly, the requirements of section 443(1)(b) have been met, I will issue three orders for the conduct of protected action ballots in this matter.
COMMISSIONER
Appearances:
Mr S Crawford for the AWU and AMWU
Mr A McKinnon for the CEPU
Mr S Price, solicitor for Boeing Aerostructures Australia Pty Ltd
Hearing details:
Sydney
11 April 2012
1 Ex 1, PN61
2 Ex 2, PN61
3 Ex 3, PN61
4 [2010] FWA 8293
5 [2009] FWAFB 368
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