Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v John Holland Pty Ltd
[2009] FWA 494
•2 OCTOBER 2009
Note: An appeal pursuant to s.604 (C2009/10660) was lodged against this decision - refer to Full Bench decision dated 28 January 2010 [[2010] FWAFB 526] for result of appeal.
[2009] FWA 494 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
v
John Holland Pty Ltd
(B2009/10738)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 2 OCTOBER 2009 |
Proposed protected action ballot by employees of John Holland Pty Ltd - whether ballot questions ambiguous –– award incorporation - whether vice inherent in pattern bargaining
[1] On 1 October 2009, I heard an application by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“the AMWU”) for a protected action ballot order made pursuant to s.437 of the Fair Work Act 2009 (“the Act”). The employer was the John Holland Pty Ltd (“the Employer”).
[2] At the conclusion of the hearing two residual matters remained for my determination in writing. I undertook to expedite my consideration of these two matters which now follows.
[3] The first matter concerned whether or not for purposes of s.437(3)(b) of the Act and s.443(3)(d) of the Act the application included the questions that are proposed to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
[4] The question before me read as follows:
“In support of reaching an Enterprise Agreement with John Holland Pty Ltd do you endorse the taking of any and all protected industrial action against your employer which is authorised by this ballot, separately, concurrently and/or consecutively in the form of:
Question 1
Stoppages of work for a 1 hour period?
Yes / No
Question 2
Stoppages of work for 2 hour periods?
Yes / No
Question 3
Stoppages of work for 4 hour periods?
Yes / No
Question 4
Stoppages of work for 8 hour periods?
Yes / No
Question 5
Stoppages of work for 10 hour periods?
Yes / No
Question 6
Stoppages of work for 24 hour periods?
Yes / No
Question 7
Stoppages of work for 48 hour periods?
Yes / No
Question 8
Indefinite or periodic bans on overtime?
Yes / No”
[5] I have previously approved applications couched in such terms on the basis that they sufficiently disclose the nature of the intended industrial action and, in the event something further is required, allow for an employee to authorise, on the basis of a sufficiently unambiguous suite of questions, a broadly couched course of industrial action.
[6] Counsel for the Applicant, Mr Herbert, however, cast doubt on this approach.
[7] Mr Herbert contended that the questions were ambiguous, and that an employee might not be able to discern the nature of a “yes’ or “no” answer, in so far as it may be a response to the proposal imbedded in the premise (to take industrial action “separately, concurrently and/or consecutively”) or to not include that particular industrial action in such a course of industrial action.
[8] Mr Herbert took me to the decision of His Honour Vice President Watson in National Union of Workers – NSW Branch v Fresh Exchange P/L[2009] FWA 221 (7 September 2009) (“NUW v Fresh Exchange”) and contended that His Honour had stated that:
“In my view the legislation requires an application to propose a question and contain other details about the industrial action and other relevant matters such as will permit employees to make an informed choice on whether to authorise the particular action specified in the question. A question which is ambiguous or does not permit such a result does not comply with the requirements for a valid application.” 1
[9] In so deciding, His Honour relied upon the Full Bench authority in Appeal by Country Fire Authority, 2 which made a finding in similar terms.
[10] The question before His Honour in his decision in NUW v Fresh Exchange was a compacted question in the following terms:
“In support of reaching a union collective agreement with your employer do you support the taking of protected industrial action against your employer which may involve one or more of the following: 1 hour stoppages of work; 2 hours stoppages of work; 3 hours stoppages of work; 4 hours stoppages of work; 8 hours stoppages of work; 12 hours stoppages of work; 24 hours stoppages of work; 48 hours stoppages of work; 72 hours stoppages of work; strikes for a period of one week; indefinite strikes; indefinite or periodic bans on overtime of storage service employees who are members of the National Union of Workers, New South Wales Branch engaged at the Arndell Park Site” 3
[11] His Honour was of the view that the question as put was “ambiguous” in that:
“Employees are proposed to be asked whether they support one or more of twelve specified forms of industrial action. An employee may support some but not all of the twelve forms of industrial action specified in the question and therefore may reasonably answer YES to the question. A positive vote would ostensibly provide authorisation for all twelve forms of industrial action. Yet in reality a majority of members may not support some or any of the twelve forms of industrial action. Hence authorisation may be thought to have been given when the majority of union members do not in fact support the particular action.
In my view the confusion created by the wording of the question arises from the mixing of notions of authorisation on the one hand and taking industrial action on the other. What is apparently being sought is authorisation for all twelve forms of industrial action. But because the union apparently does not propose to organise and take all twelve forms of industrial action it has sought to convey the limited practical application of the action by the use of the phrase “one or more” in the question. The mixing of these notions has resulted in a misleading and ambiguous question which cannot, in my view, lead to the views of employees who vote on the question being expressed in the ballot.” 4
[12] Upon reflection, I am not of the view that the question that is currently before me is ambiguous in the same sense, or in any sense, that His Honour found above. The question before me plainly invites employees to authorise any of a number of particularised forms of industrial action for purposes of the approach stipulated in the premise to the questions.
[13] The questions before me do not appear to me to be a ambiguous such that they might invariably lead an employee into confusion. Nor are the questions as structured likely to yield a confusing result.
[14] I am fortified in this approach by the approach adopted by His Honour, Vice President Watson in his decision in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Coates Hire Operations P/L[2009] FWA 262 (10 September 2009), which was published some 3 days after his decision in NUW v Fresh Exchange.
[15] In his decision in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Coates Hire Operations P/L[2009] FWA 262, His Honour approved an amended set of questions which were in the following terms:
“Do you, for the purpose of supporting or advancing claims for a proposed Enterprise Agreement with Coates Hire Operations Pty Limited, authorise the taking of any of the protected industrial action, or part of the protected industrial action, or all of the protected industrial action against Coates Hire Operations Pty Limited, which is authorised by this ballot, separately, concurrently and/or consecutively in the form of:
1. Indefinite or periodic bans of varying length on overtime?
Yes / No
2. Indefinite or periodic bans of varying length on call outs?
Yes / No
3. Indefinite or periodic bans of varying length on paper and administrative work required or otherwise necessary in respect of the maintenance, preparation and repair of machinery for hire
Yes / No
4. An indefinite number of work stoppages of 4 hours?
Yes / No
5. An indefinite number of work stoppages of 8 hours?
Yes / No
6. An indefinite number of work stoppages of 12 hours?
Yes / No
7. An indefinite number of work stoppages of 24 hours?
Yes / No
8. Indefinite bans on work related to specific events and/or particular customers?
Yes / No”
[16] These questions are structured and premised on the same terms as the questions that are now before me.
[17] In respect of these questions, His Honour concluded as follows:
“The amendments made by the AMWU are in response to submissions of the employer regarding these matters. The AMWU does not concede the necessity for the changes but agrees to make the changes to avoid complicating the approval of its application. To some extent the amendments are a complete answer to the objections of the employer. Objections remain however, particularly as to the wording of the question and certain forms of proposed industrial action.
In my view the amendments to the specification of the groups of employees to be balloted and 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.
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.”
[18] I agree with His Honour. The questions that are before me meet the statutory requirements for the same reasons.
[19] The second question that is before me concerns whether the AMWU has been genuinely trying to reach agreement. Section 443 of the Act relevantly reads as follows:
“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.”
[20] Mr Herbert contended that the AMWU was seeking at all times to include in the agreement all the terms of the Metal Engineering and Associated Industries Award 1998 (“the Award”), such that they operate as terms of the agreement.
[21] Mr Herbert argued that such a course of action, in effect, was inimical to enterprise level bargaining, derivative of pattern bargaining (or was a species there of or else contained the vice inherent in pattern bargaining), established a large number of provisions irrelevant to the enterprise, and was indicative of not genuinely trying to reach agreement.
[22] The AMWU for its part gave evidence, that went unchallenged, that the members at a mass meeting on 2 September 2009:
“formed the view that that they wanted the industry conditions and standards to underpin their enterprise agreement [and that] they also expressed the view that the award had been incorporated into previous agreements at the site and it hadn’t caused any problems for management.” 5
[23] It does not appear to me that such a course of conduct on the part of the AMWU in response to its members’ views could be considered as pattern bargaining as defined under the Act. Section 412 of the Act defines “pattern bargaining” as follows:
“Meaning of pattern bargaining
What is pattern bargaining?
(1) For the purposes of this Part, a course of conduct by a person is pattern bargaining if:
(a) the person is a negotiating party to 2 or more proposed collective agreements; and
(b) the course of conduct involves seeking common wages or conditions of employment for 2 or more of those proposed collective agreements; and
(c) the course of conduct extends beyond a single business.”
[24] The course of conduct in which the AMWU and its members are involved was and remains an effort to embody the Award in the agreement. Arguably, from the Employer’s point of view, because they represent industry standards, the Award provisions may well have marginal utility in relation to enterprise level needs.
[25] But be that as it may, while the Employer will perceive the incorporation of the Award as a sub optimal outcome to agreement making, the conduct of the AMWU and its members is not pattern bargaining, nor is it evidence of the AMWU not genuinely trying to reach an agreement (on the terms it had in the past). I add that there was no submission that the inclusion of the Award, or any of its terms, in the Agreement is not otherwise non-allowable for the Act’s purposes.
[26] Further, given the history of this matter in relation to previous agreements, just because there is an impasse on the issue of incorporation, and one side or the other has failed to make a concession to this point, I see no reason (on what is before me) to conclude the AMWU is not genuinely trying to reach an agreement.
[27] Mr Herbert, I should add, claimed that the application that is before me is precipitous (and not indicative of genuinely trying to reach agreement) in that on 22 September 2009 the AMWU wrote to the Employer seeking clarification of its enterprise level circumstances, but not having received a reply, filed this application 8 days later (on 30 September 2009).
[28] On its own, perhaps something of substance might be made of this conduct in relation to whether the AMWU was genuinely trying to reach agreement with the employer, and whether its efforts were genuinely directed towards that goal. But in the context of the six meetings with the employer held between February and September 2009, and without more, I could not make a finding (under s.443 of the Act) that would be adverse to the AMWU on this basis. 6
[29] I will therefore approve the application made under s.437 of the Act, and the order as sought will be issued contemporaneously with this decision.
[30] By way of conclusion, I not that the impasse that has been reached is without doubt a source of frustration to the Employer. It may be the case the process that was afoot at the time this application was made by instigation of the Employer, which was to identify the relevant content so as to narrow the scale and scope of the award for purposes of incorporation, might be continued. It could well break the impasse and obviate the necessity for industrial action.
SENIOR DEPUTY PRESIDENT
Appearances:
S Fenitman for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
A Herbert of Counsel for John Holland Group Pty Ltd
Hearing details:
2009
Brisbane.
October 1.
1 National Union of Workers – NSW Branch v Fresh Exchange P/L [2009] FWA 221 (7 September 2009) at PN10
2 Appeal by Country Fire Authority against decision and order of Foggo C of 17 August 2006 [PR973694 and PR973695] – Re: United Firefighters’ Union of Australia, Watson VP, Lacy SDP, Hingley C, 8 September 2006 [PR973841] (see PN20)
3 National Union of Workers – NSW Branch v Fresh Exchange P/L [2009] FWA 221 (7 September 2009) at PN4
4 National Union of Workers – NSW Branch v Fresh Exchange P/L [2009] FWA 221 (7 September 2009) at PN 11-12
5 Statement of Mr Terry Bradley dated 29 September 2009 at PN14
6 Statement of Mr Terry Bradley dated 29 September 2009 at PN 4, 5, 8, 10, 11 and 15
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