Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
[2009] FWA 878
•29 OCTOBER 2009
[2009] FWA 878 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
(B2009/10900)
COMMISSIONER ROBERTS | SYDNEY, 29 OCTOBER 2009 |
Proposed protected action ballot by employees of Australian Postal Corporation (Australia Post) .
[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 members of the CEPU engaged in Post Logistics (third and fourth party Warehousing/Fulfilment Operations). The application was made on 23 October 2009 and was heard by me in Sydney on 26 October 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, separately, concurrently and/or consecutively 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,
• quick hitching; and,
• complying with your employer policies and/or directions concerning the media, dress codes, attending Facility Nominated Doctors, being seatedand providing information to the public?
YES/NO’”
[3] During the hearing the CEPU sought, and was granted, permission to amend the draft questions and preamble to the following:
“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
[4] This matter has a somewhat complex and lengthy history prior to the application now under consideration. A similar application 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. 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.”
[5] The CEPU now submits that it has amended its claims so as to cure the prohibited content problem identified by the Full Bench and has embarked on a course of action after 7 September 2009 that clearly shows it has been genuinely attempting to reach an agreement with Australia Post. Australia Post maintains that prohibited content concerning contractors remains in the CEPU’s claims and that the CEPU has not been genuinely attempting to reach an agreement but rather, has been laying what Australia Post referred to in proceedings as ‘a paper trail’ to justify a further ballot order application. Australia Post also argues that the proposed ballot questions are ambiguous and/or unreasonable in their construction and would not allow Australia Post’s employees a fair opportunity to express their views on the types of industrial action to be undertaken. Some of the issues concerning the ballot questions were resolved during the course of the hearing but Australia Post continues to object to the amended questions and the preamble to those questions.
Legislative Framework
[6] 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.”
[7] 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.”
[8] 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.”
[9] 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.”
The 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 question and whether the CEPU has been genuinely trying to reach agreement with Australia Post in the period after 7 September 2009. 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] Therefore, firstly I turn to the contractor question.
[12] On 14 September 2009, the CEPU wrote to Australia Post and submitted a draft enterprise agreement (EBA7) which included the following claim:
“30.3 Contractors
30.3.1 It is recognised that the purpose of this agreement is to enhance full time, secure and meaningful employment for people working within Australia Post. Therefore contractors will only be engaged by Australia Post where:
(a) The relevant work at the time of engagement of the contractor is not being performed by an employee; and
(b) the relevant work is not work that is ordinarily performed by Australia Post employees; and
(c) the job has been advertised and there are no applicants.
30.3.2 The parties acknowledge that the use of contractors can impact on the employer-employee relationship. Accordingly:
30.3.2.1 Australia Post will ensure that the pay and conditions of contractors 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 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.
30.3.2.2 Where contractors are engaged they will be utilised to cover casual and fixed term needs within the same parameters as in clauses 6.3.1 and 6.4.2. Provided that contractors can only be employed in non-operational roles;
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.
30.3.4 Where employees of contractors are offered permanent employment they will serve a maximum of three months probation before permanent employment is confirmed. Offers of employment will be prioritised on length of service.”
[13] The above claim was maintained by the CEPU from 14 September 2009 until a letter dated 14 October 2009 was sent to Australia Post signed by Mr Husic. Attached to that letter was a revised claim by the CEPU in relation to contractors:
“30.3 Contractors
30.3.1 It is recognised that the purpose of this agreement is to enhance full time, secure and meaningful employment for people working for Australia Post. Similar to the commitments it has made under previous enterprise agreements, Australia Post commits that it will not contract out its workforce or any significant part of that workforce nor make any substantial change in the current overall balance of employee/contractor resources.
30.3.2 The parties acknowledge that the use of contractors can impact on the employer-employee relationship. Australia Post 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. Australia Post will ensure that where contractors perform work that is comparable to the work of Australia Post employees the overall pay and conditions of contractors will be the same as the overall 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 Any new proposals involving the contracting out of work currently performed by employees will be discussed initially at a state level and sufficient time will be allowed for discussions before action is taken to implement any contracting out proposal. Where the parties at a state level are in dispute about this issue, the matter will be elevated nationally for resolution. To assist the consultation process, Australia Post will:
(a) inform unions whether the relevant work at the time of proposed engagement of the contractor is being performed by an employee and why the corporation is seeking to contract out this work;
(b) inform unions whether prior to contracting out the work, Australia Post has sought to advertise for employees to perform this work and whether there were any applicants for such advertised work; and,
(c) allow unions to submit proposals for consideration by Post on behalf of affected employees which may promote the retention of full time work (or part-time work, where applicable) ahead of these duties being contracted out.
30.3.4 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.
30.3.5 Where employees of contractors are offered permanent employment they will serve a maximum of three months probation before permanent employment is confirmed. Offers of employment will be prioritised on length of service.”
[14] The above letter and revised claim followed (at least chronologically) the full reasons for decision published by the Full Bench on 12 October 2009.
[15] The letter and draft agreement of 14 September 2009 was followed by another letter and draft agreement dated 16 September 2009, which corrected some minor errors but still contained the same contractor claim. Various correspondence and meetings between the parties then followed. By letter dated 1 October 2009 the CEPU provided a new draft agreement which repeated the contractor clause contained in the earlier versions of 14 and 16 September 2009.
[16] On 7 October 2009 the CEPU again wrote to Australia Post concerning the agreement negotiations. That letter said, inter alia:
“It is critical to the CEPU to have a clear understanding that Post is prepared to move on key issues. The CEPU asks, as it did in our recent talks with you, whether Post is prepared in-principle to alter its previously held positions in relation to our long standing claims, chiefly:
• Full access to arbitration for any disputes during the life of EBA7.
• Restoration of penalty shifts in delivery.
• An end to the use of Facility Nominated Doctors (FND’s) in workers compensation matters.
• Stronger clauses covering the way contractors, casuals and agency staff are used. [emphasis added]
• A clear commitment to protecting and promoting full time employment during the introduction of FDD.
• Improved consultation measures, including a commitment to recognise the status quo while discussions are held over workplace change.
• An agreement that runs for no less than a full two years.
Without knowing whether Post is prepared to move on these issues it is exceptionally difficult for the CEPU to know whether there can be progress on the other issues that would enable the parties to reach agreement on EBA7.
The CEPU seeks a response from Post by cob Friday 9th October 2009 on whether Post is prepared in-principle to alter its previously held positions in relation to our long standing claims, as listed in this correspondence.”
[17] By letter dated 15 October 2009 Australia Post advised the CEPU concerning the proposed agreement and said, in relation to contractors:
“4. Use of Contractors
Given the recent written reasons issued by the Full Bench of Fair Work Australia in respect of the protected action ballot matter, we consider that it is now clear that this claim by the CEPU is prohibited and we are of the view that it should no longer be included.”
[18] The CEPU responded to Australia Post’s letter of 15 October 2009 and acknowledged that Australia Post’s position was that the new CEPU contractor proposal remained prohibited content. By letter dated 20 October 2009 (but actually delivered on 22 October), Australia Post advised Mr Husic that: “Australia Post will respond on the topic of contractors and agency staff by 23 October 2009.” At 10 am on 23 October 2009 the CEPU filed the application under consideration.
[19] The CEPU has been pursuing the contractor question in various forms during the entirety of its enterprise agreement negotiations. It initially sought to enter into a common law agreement with Australia Post to contain the following clause:
“7. Contractors and Agency Staff
7.1 Use of Contractors by Australia Post
7.1.1 The parties acknowledge that the use of outside contractors can impact on opportunities for Australia Post employees. Contractors have been used as a means of undermining wages and conditions of Australia Post employees, altering Australia Post’s commitment to provide opportunities for its employees including full-time, part-time, fixed term employees and labour hire staff.
7.1.2 The parties agree that there will be no contracting out during the life of EBA7.
7.1.3 Further the parties agree that where current contracts expire or become vacant the corporation will arrange for the work to be performed by an employee.
7.1.4 Disputes about contracting out will be dealt with in accordance with the dispute resolution procedures in Clause 20 of this Deed of Agreement.” 3
[20] The contractor claim as set out above was rejected by Australia Post. The contractor issue was then pursued in various forms of wording until reaching the final form proposed by the CEPU on 14 October 2009. That history does not need to be detailed for the purposes of this decision, as the situation up to 7 September 2009 is extensively set out in the Full Bench reasons for decision on 12 October 2009. However, it is worth considering the Full Bench decision of 12 October 2009 as follows:
“[53] After 8 July 2009 there were no negotiations between the CEPU and Australia Post on EBA7.
[54] During the negotiations the contractor matters were said by the CEPU to be critical issues for EBA7.
[55] The evidence reveals that, while in November 2008 the CEPU was seeking contracting out provisions to the extent permitted, by 18 December 2008 the CEPU was seeking changes to contractor provisions to require Australia Post to advertise every position internally and to only contract out a position if it is not wanted by an Australia Post employee.
[56] The issue of whether a claim about contractors is a matter pertaining to the relationship between an employer and its employees was considered by French J, as he then was, in Wesfarmers Premier Coal Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (No. 2). 4 His Honour found that “provisions restricting or qualifying the employer’s right to use independent contractors” are not matters pertaining to the employment relationship.5
[57] Contractor provisions requiring Australia Post to advertise every position internally and to only contract out a position if it is not wanted by an Australia Post employee are “provisions restricting or qualifying the employer’s right to use independent contractors”. 6The CEPU sought such provisions as a substantive term of the proposed enterprise agreement. The claim was not minor, trivial or ancillary. Therefore, by 18 December 2008, the CEPU was seeking a matter not pertaining to the employment relationship as part of EBA7. Nor do such provisions fall within any of the other categories in s.172(1) of the FW Act.”
[21] The CEPU’s draft enterprise agreement documents of 14 and 16 September and 1 October 2009 persisted with the following claim:
“30.3.1 It is recognised that the purpose of this agreement is to enhance full time, secure and meaningful employment for people working within Australia Post. Therefore contractors will only be engaged by Australia Post where:
(a) The relevant work at the time of engagement of the contractor is not being performed by an employee; and
(b) the relevant work is not work that is ordinarily performed by Australia Post employees; and
(c) the job has been advertised and there are no applicants.” [emphasis added]
[22] The Bench went on to conclude:
“[60] Since the CEPU has been and is pursuing as a substantive term of the proposed enterprise agreement a claim in respect of contractors which is not about a permitted matter, we were not satisfied the CEPU has been, and is, genuinely trying to reach an agreement with Australia Post, being the employer of the employees to be balloted.
[61] As a result a jurisdictional pre-requisite for making the protected action ballot order sought by the CEPU in its s.437 application concerning Australia Post employees, excluding Post Logistics’ employees, was not satisfied…
[62] We add that we did not need to deal with the issue of whether a person who reasonably believes they have been and are pursuing a claim about a permitted matter as a substantive term of a proposed enterprise agreement has been, and is, genuinely trying to reach an agreement. Given the authority in Wesfarmers case and the status of those in the CEPU who were pursuing the claim, the CEPU could not have reasonably believed the aforementioned claim in respect of contractors that it had been and was pursuing as a substantive term of the proposed enterprise agreement was about a permitted matter.”
[23] It is clear on the facts that until 14 October 2009, the CEPU persisted with a claim which the Full Bench had considered was not a permitted matter. Therefore, the CEPU cannot have been genuinely trying to reach an agreement in the period leading up to 14 October 2009 and I so find.
[24] I now turn to the revised contractor claim submitted by the CEPU to Australia Post on 14 October 2009. That claim (set out at para 13 supra), sought to insert a clause into the proposed enterprise agreement which would constitute a permitted matter. In my view, that attempt also failed. The proposed provision contained at the revised subclause 30.3.1: “… Australia Post commits that it will not contract out its workforce or any significant part of that workforce nor make any substantial change in the current overall balance of employee/contractor resources” clearly constitutes a provision ‘… restricting or qualifying the employer’s right to use independent contractors’. The further proposals in the amended claim relating to consultation are also, in my view, so onerous as to constitute a restriction or qualification of the employer’s right to use contractors. It therefore follows that the CEPU cannot be said to have been genuinely trying to reach an agreement with Australia Post in the period from 14 October 2009 until it filed the current application on 23 October 2009.
[25] The parties have also been in contention over the issue of the terms of employment of agency personnel. On 14 October 2009 the CEPU also submitted an amended claim concerning such personnel to Australia Post in the following terms:
“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 the job working arrangements as apply to the comparable Australia Post employees under the Agreement.
6.6.2 Where employees of labour hire agencies are offered permanent employment, offers of employment will be prioritised to the length of service where more than one agency employee is to be considered for permanent employment.”
[26] It is my view that subclause 6.6.1 of the above proposal is a permitted matter. Here I note that the Explanatory Memorandum to the Fair Work Bill 2008 said:
“672. It is intended that the following terms would be within the scope of permitted matters for the purpose of paragraph 172(1)(a):
…
• 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; …”
[27] However, the proposed provision contained at subclause 6.6.2 is, in my view, not compliant in that it again qualifies or restricts the right of Australia Post in a manner which is not permitted. Therefore, I consider that the inclusion of this claim further supports my conclusion that the CEPU was not genuinely seeking to reach agreement with Australia Post when the current ballot application was lodged.
[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.
[30] For the reasons given above, I refuse the CEPU’s application for a ballot order at this time.
COMMISSIONER
Appearances:
R Reitano, of counsel with P Pasfield 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:
October 26.
1 Full Bench (Acton SDP, Hamilton DP, Blair C) Ex Tempore decision handed down on 7 September 2009.
2 [2009] FWAFB 599.
3 See attachment to Exhibit Australia Post 4.
4 (2004) 138 IR 362.
5 Ibid at paragraph 109.
6 Ibid.
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