Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
[2009] FWA 998
•9 NOVEMBER 2009
Note: An appeal pursuant to s.604 (C2009/10925) was lodged against this decision - refer to Full Bench decision dated 20 January 2010 [[2010] FWAFB 344] for result of appeal.
[2009] FWA 998 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
(B2009/10982)
COMMISSIONER ROBERTS | SYDNEY, 9 NOVEMBER 2009 |
Proposed protected action ballot by employees of Australian Postal Corporation.
[1] This decision concerns an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU), pursuant to s.437 of the Fair Work Act 2009 (the Act), for a protected action ballot order in relation to employees of Australian Postal Corporation (Australia Post) who are members of the CEPU, excluding those members of the CEPU engaged in Post Logistics (third and fourth party Warehousing/Fulfilment Operations). The application was made on 4 November 2009 and was heard by me in Sydney on 5 November 2009. Mr R Reitano of counsel represented the CEPU and Mr J Bourke of counsel represented Australia Post. Sworn evidence was given by Mr E Husic (the Divisional Secretary of the Communications Division of the CEPU). Evidence by way of a statutory declaration was submitted by Ms C Walsh (Manager, Employee Relations of Australia Post). I have paid relevant regard to the evidence of Mr Husic and Ms Walsh, as I have to the exhibits and submissions.
[2] The CEPU sought an order in the following terms:
“The following questions shall be put to the employees in the ballot:
‘In supporting or advancing claims in relation to an enterprise agreement with the Australian Postal Corporation do you endorse the taking of any and all protected industrial action against your employer which is authorised by this ballot in the form of the following:
Question 1
An indefinite number of stop-work meetings of varying lengths?
YES/NO
Question 2
An indefinite number of stoppages of work varying in length from 1 to 24 hours?
YES/NO
Question 3
An unlimited number of indefinite or periodic bans on the performance of work relating to:
• delivering of mail/parcels,
• taking of any action to stop unstamped mail/parcels from being delivered,
• loading or unloading of any vehicle,
• sorting of mail/parcels,
• overtime,
• administrative duties,
• retail transactions,
• revenue checking and collection of postage,
• maintenance and repair of machinery and equipment,
• transmitting data,
• sign-off of Resource Optimisation Model, including participating in consultation processes and data collection activities associated with the process; and,
• complying with your employer policies and/or directions concerning the media, dress codes, attending Facility Nominated Doctors, not being seated whilst at work and providing information to the public?
YES/NO’”
Background
[3] An application similar to the current one was heard by Senior Deputy President Drake and approved on 25 August 2009. It was the subject of successful appeal by Australia Post and her Honour’s decision was quashed on 7 September 2009 1 with expanded reasons being handed down by the Full Bench on 12 October 20092. A further application by the CEPU was refused by me on 29 October 2009.3.
[4] The CEPU now submits that it has amended its claims so as to cure the prohibited content problem identified by the Full Bench and my decision of 29 October and has embarked on a course of action after 29 October 2009 that clearly shows that it has been genuinely attempting to reach an agreement with Australia Post. Australia Post maintains that prohibited content concerning contractors and agency personnel remains in the CEPU’s claims and that the CEPU has not been genuinely attempting to reach an agreement. It is Australia Post’s position that the actions of the CEPU after 29 October have been aimed not at genuinely trying to reach agreement but rather to establish a basis for a protected ballot application. Australia Post maintains its position that the proposed ballot questions are ambiguous and/or unreasonable in their construction and would not allow Australia Post employees a fair opportunity to express their views on the types of industrial action to be undertaken.
Legislative Framework
[5] Section 443 of the Act relevantly provides:
“(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.”
[6] Section 437 of the Act relevantly provides:
“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.
…
(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.”
[7] Section 172 of the Act relevantly provides:
“Enterprise agreements may be made about permitted matters
(1) An agreement (an enterprise agreement) that is about one or more of the following matters (the permitted matters) may be made in accordance with this Part:
(a) matters pertaining to the relationship between an employer that will be covered by the agreement and that employer’s employees who will be covered by the agreement;
(b) matters pertaining to the relationship between the employer or employers, and the employee organisation or employee organisations, that will be covered by the agreement;
(c) deductions from wages for any purpose authorised by an employee who will be covered by the agreement;
(d) how the agreement will operate.”
[8] The Explanatory Memorandum to the Fair Work Bill 2008 said in relation to subsection 172(1) of the Act:
“661. In Electrolux Home Products Pty Limited v The Australian Workers’ Union and others (2004) 221 CLR 309 the High Court found, when considering a provision similar to clause 172(1), that industrial action could not be taken in support of claims that could not be validly included in an agreement under the WR Act as in force at the time.”
[9] In its expanded reasons, the Full Bench said:
“[43] It is apparent that the scheme of the FW Act is that the substantive terms of an enterprise agreement are to be about permitted matters. Since an enterprise agreement is made by employees approving a proposed enterprise agreement, it follows that the substantive terms of a proposed enterprise agreement are also to be about permitted matters.
[44] As a result, an applicant for a protected action ballot order pursuing a claim as a substantive term of a proposed enterprise agreement which is not about a permitted matter is not genuinely trying to reach an agreement with the employer of the employees to be balloted.”
The Current Application
[10] My task in this decision is to examine whether the current CEPU application is compliant with the Act in relation to the contractor and agency personnel questions and whether the CEPU has been genuinely trying to reach agreement with Australia Post. If I am satisfied that the first issue can be resolved in favour of the CEPU then I must turn to consider the ‘genuinely trying to reach agreement’ issue. If that issue is resolved in favour of the CEPU, then I must turn to consider the terms of the ballot questions and the associated preamble.
[11] In my decision of 29 October, I said at paragraphs 28 and 29:
“[28] I wish to note that if the CEPU had not included the non-permitted matters in its claims, the history of negotiations between the parties would have led me to conclude that the CEPU was genuinely seeking to reach an agreement with Australia Post and I would have granted a ballot order on that basis. I must also briefly note my view as to the form of questions proposed in the amended ballot application. In my opinion, the questions and the preamble to the questions, as amended, would have met with my approval in other circumstances.
[29] It should be clear to the CEPU by now that its proposals concerning contractors and agency personnel will not succeed in their current form. If the CEPU genuinely wishes to reach agreement, and on the evidence of Mr Husic, I am sure that it otherwise does, it should abandon its claims for non-permitted matters and allow the negotiations/ballot process to take its course.”
[12] Therefore, firstly I turn to the contractor/agency personnel question.
[13] On 30 October 2009 Mr Husic wrote to Australia Post and provided the following revised clauses relating to agency personnel and contractors:
“I refer to your letter of 23 October 2009 and also to the Decision of Commissioner Roberts of yesterday,
Having considered the comments in your letter and that part of the Decision dealing with the CEPU's previously proposed Agency Personnel and Contractors clauses, the CEPU has now revised the said clauses to ensure that they only contain permitted matters. You should note that no new claims are contained in the revised clauses and they signify an acceptance of the Tribunal's view that the CEPU is not entitled to pursue parts of the previously proposed clauses. Those parts are no longer pursued.
The revised clauses are as follows.
6.6 Agency Personnel
6.6.1 The parties acknowledge that the use of agency staff can impact on the employer-employee relationship. Accordingly Australia Post agrees that agency staff will not be used as a means of pursuing a reduction in wages and conditions of Australia Post employees or altering Australia Post's commitment to providing opportunities for its employees. Accordingly Australia Post will ensure that the pay and conditions of agency staff will be the same as the pay and conditions provided to comparable Australia Post employees under this Agreement and the relevant Australia Post awards. Australia Post will ensure that agency staff will observe the same on thejob working arrangements as applied to the comparable Australia Post employees under the Agreement.
6.6.2 Australia Post will continue to provide information on the use of agency staff (including the remuneration paid) to the unions. Information will be provided nationally to the unions on a quarterly basis.
30. 3 Contractors
30.3.1 The parties acknowledge that the use of contractors can impact on the employer-employee relationship. Australia Past agrees that contractors will not be used as a means of pursuing a reduction in wages and conditions of Australia Post employees or altering Australia Post's commitment to providing opportunities for its employees.
30.3.2 Australia Post will ensure that where contractors perform work that is comparable to the work of Australia Post employees the pay and conditions of contractors will he the same as the pay and conditions provided to such Australia Post employees under this Agreement and the relevant Australia Post awards. Australia Post will ensure that such contractors will observe the same on the job working arrangements. as apply to the comparable Australia Post employees under the Agreement. Australia Post will consult with Unions on safety inductions and facilities arrangements for contractors where contractors work on a site with Australia Post employees.
30.3.3 Australia Post will continue to provide information on the use of contractors (including the remuneration paid) to the unions. Information will be provided nationally to the unions on a .quarterly basis.”
[14] The letter also responded to a number of other matters contained in earlier Australia Post correspondence such as tonnage allowance, 12 hour shifts for technicians, junior rates etc. The letter went on to say: “We note Australia Post’s position on our other claims, however we would be pleased to discuss with you the revised clauses dealing with Agency Personnel and Contractors. I am available for the remainder of today, over the weekend and up to 2.30 pm, Monday 2 November 2009 to confer. Please contact me to make the necessary arrangements.”
[15] Australia Post responded to the CEPU on the same day. That letter said, in part:
“Proposed meeting
To deal with your last paragraph first, I do not consider your statement that you are available for meetings 'for the remainder of today, over the weekend and up to 2.30pm, Monday 2 November 2009 is a genuine attempt to meet and confer. Nor is it a request for a meeting at a reasonable time. You are aware that the CPSU, TWU and several other bargaining representatives are involved in these negotiations, and that the CEPU and Australia Post are required to recognise and bargain with them. You may also be aware that Tuesday 3 November 2009 is a public holiday.
You will appreciate that many people based in Melbourne take annual leave on the day immediately proceeding Melbourne Cup Day, and a request made on the afternoon before a de facto long weekend for a meeting over that weekend is not a reasonable request. We consider that the fairest approach for all the bargaining representatives is to allow them an opportunity to participate in a meeting at a reasonable time, and to allow them to consider the parties' positions and to obtain advice.
For those reasons, we propose to schedule a meeting of all bargaining representatives on Thursday 5 November 2009. The bargaining representatives can then meet to discuss any matters arising out of the 21 October 2009 meeting, including claims by the other bargaining representatives, Australia Post's letter dated 23 October 2009 and your letter dated 30 October 2009.
Non-permitted matters in your contractors and agency staff clauses
We are currently considering the draft clauses you have provided on contractors and agency personnel. We will be in a position to respond to you on these issues when we meet next Thursday.
Response to Australia Post's proposals dated 23 October 2009, and the reasons for your responses to these proposals.
Your letter also refers to Australia Post's 23 October 2009 letter in relation to Tonnage Allowance, Retail Provision, 12 hour shifts for technicians and Technical Qualifications. In each case, you say that you have 'considered the response by Australia Post' and that you continue to press your claim. Rather than repeat the same mantra in relation to each of Australia Post's proposals, which were put to the bargaining representatives in good faith, we seek that you give these proposals genuine consideration. We seek your considered response and reasons to these matters as required under section of the Fair Work Act 2009 (Cth.) which sets out the principles of good faith bargaining at section 228(1) in particular sub-section 228(1)(e).”
[16] The CEPU replied to Australia Post on 2 November 2009 strongly disputing Australia Post’s view as to the practicality of talks occurring between the parties before 5 November. The letter said, in part:
“It is clear that Post is refusing to bargain in good faith, preferring to construct methods to frustrate the bargaining process through avenues within the Fair Work Act.
Your belief that we must submit our claims to other bargaining agents is well and truly misplaced. The CEPU and its 20,000 members in Australia Post seek agreement with the corporation, not the other bargaining representatives. It is simply misleading to suggest that those representatives now need to be present at all meeting from here onwards.
There is absolutely nothing to prevent you as the chief negotiator - or any of your delegated representatives - to make contact via telephone today and discuss with the CEPU the revised clauses and/or arrange a meeting with us today.
In respect of the issues the corporation seeks a ‘genuine response’ it should be pointed out that the CEPU has genuinely considered your proposals but we believe that we can get a better deal for its members by pressing its current claims in further negotiations with Australia Post.
We reiterate that our position is to talk further today. If Australia Post refuses to talk, we will determine the appropriate course of action to secure agreement.”
[17] Australia Post responded on the same day. Its letter relevantly said:
“I reiterate that Australia Post is prepared to meet with the CEPU to discuss its latest proposals and responses, and to continue to bargaining in good faith, and has made arrangements to do so on Thursday 5 November 2009 at 10am. We undertook to provide the appointed bargaining agents, which as you know includes the TWU in Queensland, with at least 48 hours notice of EBA7 meetings to allow adequate time to make leave and other travel arrangements. Of the seven appointed bargaining representatives, 3 are in Queensland, 2 are in NSW and the remaining 2 are in Melbourne.
In this respect, we vehemently deny your allegations that we are engaging in attempts to delay or frustrate this process.
Accordingly, given the tenor of your letter today and your obvious desire to meet as soon as possible, we will assume that you will be attending the Thursday meeting as proposed. We will therefore proceed to contact each of the bargaining agents in relation to the proposed meeting time (having regard to the public holiday tomorrow) so that they can make appropriate arrangements to attend.”
[18] The CEPU wrote to Australia Post again on 2 November in the following terms:
“It is noted that at 5.00 p.m. today you have not responded to the CEPU proposal for revised clauses for Agency Personnel and Contractors that were contained in our correspondence to you of 30th October 2009.
We are extremely disappointed that you have not been able to provide a response to each of these clauses.
The CEPU requests that Australia Post provide a response to the CEPU proposals for the Agency Personnel and Contractors clauses by noon on Wednesday 4th November 2009.”
[19] On 4 November 2009, Mr Husic emailed Ms Walsh to confirm the CEPU’s attendance at negotiations on 5 November.
[20] In the early evening of 4 November 2009, Australia Post wrote to the CEPU, in part, in the following terms:
“We refer to the above matter and to our letter of Friday 30th October 2009, containing updated clauses on agency personnel and contractors. We also refer to your subsequent letters of Monday 2 November 2009 and Tuesday 3 November 2009, seeking an urgent response on these claims.
We have set out below our response to these claims.
Non - permitted matters in your draft agency staff and contractors clauses.
Turning to your draft agency and contractors clauses, we have had an opportunity to reflect on the Court authorities referred to in the Fair Work Australia hearing on Monday 26 October 2009 and, on the basis of those authorities, we consider that your latest claims dated 30 October 2009 still deal with non-permitted matters.
The last sentence of your proposed clause 6.6.1, dealing with 'job working arrangements' of agency staff, is not about a matter pertaining to the employment relationship: CFMEU v Mt Thorley Operations Pty Ltd (1997) 79 FCR 96 at 108; Wesfarmers Premier Coal vAFMEPKIU (2004) 138 IR 362 at 390.
For the same reasons as apply to clause 6.6.1, the second sentence of your proposed clause 30.3.1, dealing with 'job working arrangements' of contractors, is not about a matter pertaining to the employment relationship.
On that basis, we seek once again that you review your claim with respect to these two clauses to ensure they contain only permitted content.”
[21] On 5 November, the CEPU responded to Australia Post saying, in part:
“We have reviewed your correspondence and the decision of Commissioner Roberts, B2009/10900.
We submitted revised clauses we genuinely believe do not contain non-permitted matters. Our view is consistent with the decision of Cmr Roberts.
Nevertheless in an effort to genuinely try to reach an agreement with Australia Post the CEPU no longer presses the last sentence of proposed clause 6.6.1 and the second sentence of proposed clause 30.3.2.”
[22] Australia Post responded on the same day in the following terms:
“I refer to your letter dated 5 November 2009 and to the draft clauses that you have provided to us dated 30 October 2009.
Further to our 4 November 2009 letter, clauses 6.6.2 and 30.3.3, and the last sentence of your clause 30.3.2, deal with non-permitted matters. This is consistent with the submissions Australia Post put to Fair Work Australia on 26 October 2009.
We seek that you withdraw clauses 6.6.2 and 30.3.3, and the last sentence of your clause 30.3.2.”
Agency Personnel and Contractors
[23] Following the concessions contained in the CEPU correspondence to Australia Post of 30 October and 5 November 2009 the following are the clauses being sought by the CEPU as at the time of the hearing:
6.6 Agency Personnel
6.6.1 The parties acknowledge that the use of agency staff can impact on the employer-employee relationship. Accordingly Australia Post agrees that agency staff will not be used as a means of pursuing a reduction in wages and conditions of Australia Post employees or altering Australia Post's commitment to providing opportunities for its employees. Accordingly Australia Post will ensure that the pay and conditions of agency staff will be the same as the pay and conditions provided to comparable Australia Post employees under this Agreement and the relevant Australia Post awards.
6.6.2 Australia Post will continue to provide information on the use of agency staff (including the remuneration paid) to the unions. Information will be provided nationally to the unions on a quarterly basis.
30. 3 Contractors
30.3.1 The parties acknowledge that the use of contractors can impact on the employer-employee relationship. Australia Past agrees that contractors will not be used as a means of pursuing a reduction in wages and conditions of Australia Post employees or altering Australia Post's commitment to providing opportunities for its employees.
30.3.2 Australia Post will ensure that where contractors perform work that is comparable to the work of Australia Post employees the pay and conditions of contractors will he the same as the pay and conditions provided to such Australia Post employees under this Agreement and the relevant Australia Post awards. Australia Post will consult with Unions on safety inductions and facilities arrangements for contractors where contractors work on a site with Australia Post employees.
30.3.3 Australia Post will continue to provide information on the use of contractors (including the remuneration paid) to the unions. Information will be provided nationally to the unions on a .quarterly basis.
[24] The position of Australia Post is that there remain three non-permitted areas in the above claims. Those are subclause 6.6.2 in its entirety, the last sentence of subclause 30.3.2 which reads: “Australia Post will consult with Unions on safety inductions and facilities arrangements for contractors where contractors work on a site with Australia Post employees.” and subclause 30.3.3 it its entirety.
[25] In my decision of 29 October 2009 I expressed the view that the part of subclause 6.6.1 which the CEPU has now volunteered to delete from its claim was a permitted matter. On reflection however, I believe that the CEPU was wise to relinquish it. There is no remaining doubt that subclause 6.6.1 contains only permitted matters and I so find.
[26] Subclause 6.6.2 is a reinstatement of the claim made by the CEPU in its correspondence with Australia Post on 14 October 2009 (see my decision of 29 October 2009 at paragraph 13). I have examined subclause 6.6.2 and find that it is permitted content. In my view, the proposed subclause (even if poorly worded) is a logical and necessary provision to allow the transparent operation of subclause 6.6.1.
[27] The Explanatory Memorandum to the Fair Work Bill 2008 gave as an example of a term which would be within the scope of permitted matters, the following:
“Terms relating to conditions or requirements about employing casual employees or engaging labour hire or contractors if those terms sufficiently relate to employees’ job security - e.g. a term which provided that contractors must not be engaged on terms and conditions that would undercut the enterprise agreement.”
[28] The content objected to by Australia Post in subclause 30.3.2 is also, in my view, permitted content and I so find. That provision clearly relates to the employment relationship between Australia Post and CEPU members by way of attempting to protect the safety of Australia Post employees and also the facilities arrangements of such employees.
[29] The provision contained in subclause 30.3.3 is also permitted content and I so find. My reasoning is similar to that in my consideration of subclause 6.6.2.
[30] In summary, I find that the claims of the CEPU, as amended, contained in subclauses 6.6 and 30.3 of the CEPU claims do not contain non-permitted content and that situation has obtained since the CEPU letter of 30 October 2009 to Australia Post. The excision of the words “Australia Post will ensure that agency staff will observe the same on thejob working arrangements as applied to the comparable Australia Post employees under the Agreement” from subclause 6.6.1 and the excision of similar words from subclause 30.3.2 on 5 November 2009 can be treated as displaying an abundance of caution on the part of the CEPU rather than the excision of non-permitted content. Accordingly, the jurisdictional pre-requisite for making the protected action ballot order sought by the CEPU pursuant to s.437 of the Act is satisfied and I so find.
Genuinely attempting to seek agreement
[31] From 30 October 2009, it is evident to me that the CEPU was genuinely seeking to reach agreement with Australia Post by responding to Australia Post’s concerns on various matters and seeking to negotiate on a face to face basis as a matter of urgency. Australia Post’s reluctance to meet until 5 November 2009 cannot be laid at the door of the CEPU. I note that negotiations did occur on 5 November 2009 prior to the hearing of this application. To a lesser extent, I take into account the earlier history of bargaining between the parties. All in all, I am satisfied that the CEPU “has been, and is, genuinely trying to reach an agreement with the employer …” 4 as at the time of making this decision and I so find.
The ballot questions
[32] In my decision of 29 October, I noted that the CEPU had made significant concessions in relation to both the ballot questions and their preamble. I further indicated that, absent other factors, I would have approved those amended ballot questions. The ones now before me have the same content. I find that the proposed ballot questions should be approved in the form submitted by the CEPU.
[33] All in all, and for the reasons set out above, I find that the ballot order submitted by the CEPU should be approved.
COMMISSIONER
Appearances:
R Reitano, of counsel for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.
J Bourke, of counsel with B Avallone for Australian Postal Corporation.
Hearing details:
2009.
Sydney:
November 5.
1 Full Bench (Acton SDP, Hamilton DP, Blair C) Ex Tempore decision handed down on 7 September 2009.
2 [2009] FWAFB 599.
3 [2009] FWA 878.
4 s.443(1)(b) of the Act.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR990557>
3
0