Broadcast Transmission Services Pty Ltd v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

[2015] FWC 6340

[2015] FWC 6340

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.

Broadcast Transmission Services Pty Ltd
v
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
(C2015/5998)

COMMISSIONER CAMBRIDGE SYDNEY, 11 SEPTEMBER 2015

Application for an order that industrial action by employees or employers stop etc.

[1] This is the edited text of an extempore Decision made in transcript during proceedings held on 11 September 2015.

[2] This matter involves an application made under s. 418 of the Fair Work Act 2009 (the Act), seeking that the Fair Work Commission (the Commission) make an Order that industrial action that is occurring, or threatened, or impending, or probable, or being organised, be stopped and not occur.

[3] Section 418 of the Act is in the following terms:

“418 FWC must order that industrial action by employees or employers stop etc.

(1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:

(a) is happening; or

(b) is threatened, impending or probable; or

(c) is being organised;

The FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.
Note: For interim orders, see section 420.

(2) The FWC may make the order:

(a) on its own initiative; or

(b) on application by either of the following:

(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;

(ii) an organisation of which a person referred to in subparagraph (i) is a member.

(3) In making the order, the FWC does not have to specify the particular industrial action.

(4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:

(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or

(b) which has not ended before the beginning of that stop period; or

(c) beyond that stop period;

The FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.”

[4] The application has been made by Broadcast Transmission Services Pty Ltd (BTS). The application seeks an Order against the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the AMWU) and members of the AMWMU who are employees of BTS.

[5] The industrial action that is the subject of the application relates to employees of BTS who are members of the AMWU, and for whom the AMWU has given various notices of intention to take industrial action pursuant to a Declaration of the Results of a Protected Action Ballot. There was no dispute that the industrial action which is the subject of the notices given by the AMWU would satisfy the definition of industrial action as established under the Act.

[6] The definition of industrial action is found at s. 19 of the Act which is in the following terms:

“19 Meaning of industrial action

(1) Industrial action means action of any of the following kinds:

(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;

(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

(d) the lockout of employees from their employment by the employer of the employees.

Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.

(2) However, industrial action does not include the following:

(a) action by employees that is authorised or agreed to by the employer of the employees;

(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;

(c) action by an employee if:

(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and

(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.

Note: In this section, employee and employer have their ordinary meanings (see section 11).”

[7] The evidence produced during the Hearing has confirmed that the industrial action which is the subject of the application is threatened, impending or probable or is being organised. The industrial action satisfies the definition of industrial action and it is employee claim industrial action taken in pursuit of enterprise bargaining as contemplated by s. 409 of the Act. Further, the industrial action which is intended to be taken is reliant upon the putative protection of a Declaration of Results dated 31 August 2015, and issued by the Australian Electoral Commission (AEC) in matter number B2015/1027.

[8] The industrial action which is the subject of the application has been challenged by BTS as being unprotected industrial action because the Declaration of the Results of the Protected Action Ballot made under s. 457 of the Act, and upon which the industrial action purportedly obtained protection, involved a ballot that was not conducted in accordance with the relevant Protected Action Ballot Order made by the Commission. Specifically, the Protected Action Ballot Order [PR570029] stipulated that the ballot close within 21 days of the date of that Order and the ballot that was conducted by the AEC closed 31 days after the date of Order. Consequently, it was asserted by BTS that any employee claim industrial action taken by the AMWU and its members employed by BTS, did not satisfy sub-section 409 (2) of the Act as the industrial action was not authorised by a valid Protected Action Ballot.

[9] There was no suggestion that the employee claim industrial action to be taken by the AMWU and its members employed by BTS, did not meet the common requirements that apply for industrial action to be protected industrial action as set out in s. 413 of the Act. Nor was any issue taken in respect of the notice requirements for industrial action as prescribed by s. 414 of the Act. Further, there was no challenge made to any other aspect of the Declaration of Results other than the issue that the Protected Action Ballot had not been conducted in accordance with the 21 day date for the close of voting as stipulated in clause 5 of the Protected Action Ballot Order.

[10] Consequently the basis for the application seeking Orders under s. 418 of the Act was confined to what may be described as the alleged invalidity of the Protected Action Ballot. That invalidity allegedly arose from the failure of the AEC to conduct the ballot in accordance with the Protected Action Ballot Order of the Commission in so much as the ballot was conducted over a 31 day period when the Protected Action Ballot Order stipulated a 21 day period.

[11] The AEC was provided with the Notice of Listing for today’s Hearing of the matter and a copy of the application was also provided to the AEC.

[12] The AMWU has not disputed the factual circumstances which underpin the basis upon which the application has been advanced. However, the AMWU has opposed the application upon three grounds. Firstly, the AMWU asserted that the ballot had been conducted within 21 working days and therefore the only identified mistake involved treating 21 days as excluding non-working days. Secondly, the AMWU argued that the employer was estopped from making complaint about the erroneous extension to the date for the close of the ballot because it had not raised that issue when it had earlier opportunity to do so. Thirdly the AMWU contended that the alleged invalidity of the Protected Action Ballot involves a technical breach which does not affect the validly of the ballot, the conduct of the ballot, or the Declaration of the Results of the Protected Action Ballot.

[13] In respect to the technical breach proposition, the AMWU has asserted that the conduct of the ballot over a 31 day period rather than a 21 day period represents a technical breach of a provision of Division 8 of Part 3-3, specifically sub-section 449 (2) (a) of the Act. Therefore, it was contended by the AMWU that by virtue of the operation of sub-sections 461 (d), (e) and (f) of the Act, there was no invalidity established and the employee claim industrial action which was the subject of the s.418 application made in this instance was protected industrial action.

[14] The circumstances which give rise to this s. 418 application seeking Orders to stop unprotected industrial action are unusual. Essentially, the basis upon which the applicant seeks the Orders involves an assertion that the relevant industrial action is not protected because the results of the Protected Action Ballot which would otherwise operate to provide protection cannot do so because the ballot was not conducted in accordance with the Protected Action Ballot Order. The applicant asserted that the Protected Action Ballot was invalid and could not provide the protection purported to be established by the Declaration of the Results of the ballot made under s. 457 of the Act.

[15] There was no dispute that the Protected Action Ballot was not conducted in compliance with the terms of the Protected Action Ballot Order relating to the date by which the voting in the ballot was to close. There appeared to have been a prima facie mistake made by the protected action ballot agent, the AEC, with the timetable for the conduct of the ballot. This mistake appeared to either go unnoticed by the Parties or at least was not identified when they were consulted pursuant the requirements of s. 451 of the Act. In any event, the essential determination which has subsequently been identified has involved an assessment as to whether the particular non-compliance in respect to the Protected Action Ballot Order represented a technical breach capable of rectification by virtue of s. 461 of the Act.

[16] Section 461 of the Act is in the following terms:

“461 Validity of protected action ballot etc. not affected by technical breaches

A technical breach of a provision of this Division does not affect the validity of any of the following:

(a) a protected action ballot order;

(b) an order, direction or decision of the FWC in relation to a protected action ballot order or a protected action ballot;

(c) a direction or decision of the protected action ballot agent in relation to a protected action ballot order or a protected action ballot;

(d) a protected action ballot;

(e) the conduct of a protected action ballot;

(f) the declaration of the results of a protected action ballot.”

[17] Consequently the non-compliance involving the 10 day extended period before which the ballot closed must be assessed and determined as to whether that non-compliance should be properly treated as a technical breach for the purposes of s. 461 of the Act. Realistically this assessment requires consideration of what might constitute a technical breach as opposed to some other breach in the context of s. 461 and more broadly Part 3-3 of the Act. There was no doubt that the non-compliance represented a breach but what is at issue is whether it was a technical breach capable of rectification by operation of s. 461 of the Act.

[18] The Macquarie dictionary definition of the word “technical” is as follows:

“technical
/ˈtɛknɪkəl/ (say 'teknikuhl)
adjective 1.  belonging or relating to an art, science, or the like: technical skill.

2.  peculiar to or characteristic of a particular art, science, profession, trade, etc.: technical details.

3.  using terms or treating a subject in a manner peculiar to a particular field, as a writer or a book.

4.  skilled in, or familiar in a practical way with, a particular art, trade, etc., as a person.

5.  relating to or connected with the mechanical or industrial arts and the applied sciences: a technical school.

6.  so considered from a strictly legal point of view or a rigid interpretation of the rules: a military engagement ending in a technical defeat.

–phrase 7. get technical, Colloquial to propound or apply a strict interpretation of the rules.”

[19] The relevant part of the dictionary definition is that found at point 6 wherein it is stated “so considered from a strictly legal point of view or a rigid interpretation of the rules:” It would seem that the non-compliance with the period for voting in the Protected Action Ballot which involved an extension of the period from 21 to 31 days, needs to be assessed as to whether such particular breach could be construed as technical, that is, a breach only when considered from a strictly legal point of view or from a rigid interpretation of the relevant terms.

[20] In my view, the approach to consideration of the question of whether the breach is properly construed to be technical in nature involves an analysis of the practical impact of the breach in the context of the relevant surrounding provisions of the Act. The extension of the voting period obviously represents a breach of sub-section 449 (2) (a) of the Act. However, if that breach is found to be a technical breach then I believe that s. 461 of the Act would operate so that the breach would not affect the validity of the Protected Action Ballot notwithstanding that the Protected Action Ballot was not held in accordance with the particular time provision stipulated in the Protected Action Ballot Order.

[21] In this instance the breach involved an extension of the period before which the voting in the Protected Action Ballot closed. The practical impact of the extended period of voting would conceivably provide for greater opportunity for potential voters to exercise their right to vote. Further, in this instance the total number of eligible voters was 10, and nine of those individuals submitted ballot papers. Further, the results of the various questions which were the subject of the ballot were in all but two cases, answered decisively, in fact overwhelmingly, in favour of approving particular forms of industrial action.

[22] Consequently there would appear to be little practical impact of the breach such that the results may have been altered because of the breach. In fact, the breach may have operated to provide for greater opportunity for voters to participate and as such enhanced the democratic process which underpins the regime involving balloting of employees in respect to the taking of industrial action.

[23] It is also relevant to note the provisions of s. 436 of the Act which set out the object of Division 8 – Protected Action Ballots, s. 436 is in the following terms:

“436 Object of this Division

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 protected industrial action for a proposed enterprise agreement.

Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.”

[24] Consequently, it is clear that the Act intends that the Protected Action Ballot process involves procedures and outcomes which are not unduly affected by legal technicality or rigid interpretation. In the present circumstances, where the particular breach of a Protected Action Ballot Order had the practical effect of enhancing the democratic process and where the results of the ballot were decisive such that any anticipated rectification of the breach would be unlikely to alter the outcome, I have formed the view that such breach should be considered a technical breach for the purposes of s. 461 of the Act.

[25] Therefore, pursuant to s.461 of the Act, the Commission determines that the breach in respect to the Protected Action Ballot Order [PR570029] whereby the date by which the voting in the ballot was to close was extended by 10 days beyond that stipulated in the Order, was a technical breach of sub-section 449(2)(a) of the Act that does not affect the validity of the Protected Action Ballot or the conduct of the Protected Action Ballot or the Declaration of the Results of the Protected Action Ballot.

[26] Consequently the Orders sought by BTS are refused and the application is dismissed.

COMMISSIONER

Appearances:

Mr T Vernier of Counsel appeared for Broadcast Transmission Services Pty Ltd.

Mr M Nguyen appeared for the Australian Manufacturing Workers’ Union.

Hearing details:

2015.

Sydney and Melbourne (video hearing):

September, 11.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR571861>