Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
[2012] FWA 3783
•3 MAY 2012
[2012] FWA 3783 |
|
DECISION |
Fair Work Act 2009
s.437—Protected action
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(B2012/725)
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
(B2012/726)
Construction, Forestry, Mining and Energy Union
(B2012/727)
v
Curragh Queensland Mining Pty Ltd
COMMISSIONER SPENCER | BRISBANE, 3 MAY 2012 |
Proposed protected action ballot by employees of Curragh Queensland Mining Pty Limited - Curragh Coal Mine.
Introduction
[1] This decision concerns 3 applications lodged in Fair Work Australia (FWA) by the Construction, Forestry, Mining and Energy Union (CFMEU), “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (the Applicants) for protected action ballot orders under s.437 of the Fair Work Act 2009 (the Act).
[2] The orders were sought for proposed protected action ballot of employees of Curragh Queensland Mining Pty Ltd - Curragh Coal Mine (the Respondent). In summary terms; the applications were objected to by the Respondent on grounds of jurisdiction and in relation to s.443(1)(b) of the Act.
[3] Directions were set for the filing of written submissions. The Respondent provided an Outline of their submissions objecting to the applications. The Applicant’s each filed an outline of submissions and statements of evidence.
[4] Mr Coonan, for the Respondent, stated that a number of the areas of prior objection, had been resolved between the parties at the outset of the hearing. The Applicants had confirmed with him, that the ballot was to be an attendance ballot conducted by the AEC. The Unions had also confirmed that issues related to the availability of safety critical employees, Open-Cut Examiners and the maintenance of minimum safety standards during period of industrial action would, as per the normal approach, be dealt with at a local level.
[5] Whilst this decision does not address each argument, or piece of material or evidence raised, all of such have been considered in the determination of the matter.
Relevant Legislation
[6] The statutory provisions for a protected action ballot order are set out in Division 8 of the Act.
[7] The particular legislative tests in consideration of the applications are set out in s.443 as follows:
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).
...
Background
[8] The Respondent submitted that FWA did not have jurisdiction to accept the protected action ballot applications due to the parties having negotiated the following clause (regarding protected industrial action) of the Curragh Mine Operations Collective Workplace Agreement 2008 (the Agreement):
“2 Relationship with other Awards & Agreements
This Agreement excludes and replaces in its entirety the Curragh Queensland Mining Limited Award 1999, the Coal Mining Industry (Production and Engineering) Consolidated Award 1997 and all other agreements that may apply to employees employed by Curragh Queensland Mining Pty Ltd (“Curragh” or “Company”).
The parties recognise that this Agreement establishes a comprehensive set of conditions of employment for employees covered by this Agreement.
The parties agree that while this Agreement is in operation, they will not engage in or organise or attempt to engage in or organise, protected industrial action under the Workplace Relations Act 1996” (underlining added)
[9] It was accepted by all of the parties that the Agreement had reached its nominal expiry date in January 2012. It was further accepted that the Agreement remained in operation. Accordingly, the Respondent argued that given this agreement between the parties in the final paragraph of clause 2, FWA was prevented from progressing the applications.
[10] The Respondent argued that by virtue of Clause 2, in the current circumstances where the Agreement has reached its nominal expiry date but was still in operation, the employees had given up their statutory entitlement to take protected industrial action.
[11] The Respondent submitted that given the existence of clause 2 in the Agreement; and s.415 of the Act set out below FWA did not have jurisdiction to progress the applications.
[12] Section 415(1) of the Act states as follows:
415 Immunity provision
(1) No action lies under any law (whether written or unwritten) in force in a State or Territory in relation to any industrial action that is protected industrial action unless the industrial action has involved or is likely to involve:
(a) personal injury; or
(b) wilful or reckless destruction of, or damage to, property; or
(c) the unlawful taking, keeping or use of property.
...
Considerations
[13] Firstly, in relation to the applications, I am satisfied that the applications have been made in accordance with s.437 of the Act. In considering these applications I must apply s.443 of the Act.
[14] Predominantly the matter turns on whether the statutory tests in s.443(1)(a) and (b) of the Act for the protected action ballot orders have been met. Section 443 is a directive provision; if the legislative tests in s.443 are met, it is mandatory that FWA make the protected action ballot order.
[15] Clause (2) of the Agreement which the Respondent relies on; is irrelevant to the current applications before FWA. This term of the Agreement does not impinge on the operation of the statutory tests for a secret ballot order, as set out.
[16] The Respondent’s position was that whilst the Agreement is ‘in operation’, the clause acted, to erode the statute. That is, the Respondent submitted that the employees and unions, had knowingly derogated their statutory entitlements, in the Act, to limit the right to take protected industrial action, whilst the Agreement was ‘in operation’.
[17] However, Clause 2 of the Agreement is defunct, in terms of, the required considerations for the orders sought. All that is required, regarding the jurisdiction of the Tribunal, is whether the tests for a secret ballot order only, are met. That is as per s.435; this is simply an order that ‘establishes the process that will allow employees to choose, by means of a fair and democratic ballot, whether to authorise protected industrial action for a proposed enterprise agreement.’ The question of whether protected industrial action is taken, is a later step and a separate matter. The outcome of any resulting ballot, and then whether the employees (against clause 2 of the Agreement) take protected industrial action, may be a matter for a Court of competent jurisdiction.
[18] As set out, the applications for protected action ballot orders must be granted if the tests in s.443(1)(a) and (b) are met. In accordance with s.443(1)(a) the application has been made, in compliance with required provisions.
[19] In relation to s.443(1)(b), FWA must be satisfied that the parties are genuinely trying to reach an agreement. The Respondent, at the hearing, argued that for the Applicants to have agreed to clause 2 (of the Agreement) and to now ignore its relevance, cannot be characterised as ‘Good Faith Bargaining’ (s.228(1) of the Act) and therefore they argued these applications undermined that the Applicants were ‘genuinely trying to reach agreement’ as per s.443(1)(b). The Applicants’ evidence (in relation to s.443(1)(b)); referred to 50 negotiating meetings, held between the parties, and provided detail of the matters discussed. Therefore the Applicants submitted, FWA can be satisfied, on the evidence, that the parties were genuinely trying to reach agreement. The Respondent’s did not challenge this evidence via cross-examination.
Conclusion
[20] I am satisfied on the evidence (as presented by the Applicants) that the parties are genuinely trying to reach agreement. The statutory provisions in s.443(1)(a) and (b) in relation to the orders sought have been met.
[21] Issuing an order for a Protective action ballot order; is a facilitative step; commensurate with s.436, ‘Object of this Division’, as explained below in the Explanatory Memorandum to the Fair Work Bill:
“1755 Clause 436 states that the object of the Division is to provide bargaining representatives with access to a fair, simple and democratic secret ballot process in order to determine whether employees wish to take certain types of protected industrial action. The Division contains facilitative provisions designed to provide a means for assessing the level of support for protected industrial action. The process the Division establishes is not intended to delay or frustrate the taking of protected industrial action by employees.” 1
[22] The decision of the Federal Court in J.J. Richards 2 provides support for the determination. The decision affirmed, that the legislation mandated that the Tribunal make a ballot order, if the two pre-conditions in s.443(1) are satisfied. The J.J. Richards decision cautions against, invoking further limitations on the operation of s.443(1), as follows:
“It is also important to bear in mind the manner in which s 443 is to operate. That section imposes a mandatory obligation upon Fair Work Australia to make a protected action ballot order if the stated preconditions are satisfied. The importance perceived by the Legislature in the making of such an order is evident from the terms in which s 443(1) is expressed – “FWA must make a protected action ballot order ...”. No residual discretion is vested in Fair Work Australia to refrain from making an order. For this Court to imply into s 443 a constraint unexpressed by the Legislature, it is respectfully considered, would be for the Court to trespass well beyond its judicial role and venture into that of the Legislature.
In the present statutory context it is thus concluded that there is no “absurdity” in confining the constraints imposed by s 443(1) to those expressly set forth in that provision and that there is no “clear necessity” for implying further constraints which are not expressly provided. Nor is it considered that any such implication would “best achieve the object or purpose” of Division 8...” 3
[23] For the aforementioned reasons; I am satisfied that the tests of s.443(1)(a) and (b) have been met and therefore the applications (made pursuant to s.437) are granted and separate protected action ballot orders will be issued.
COMMISSIONER
Appearances
For the Applicants
Mr A. Bukarica for CFMEU.
Ms L. Butler for AMWU.
Ms K. Inglis for CEPU.
For the Respondent
Mr M. Coonan of Freehills for Curragh Queensland Mining Pty Ltd.
1 Explanatory Memorandum, Fair Work Bill 2008 (Cth).
2 Jessup, Tracey and Flick JJ, J.J. Richards and Son Pty Ltd v Fair Work Australia [2012] FCAFC 53.
3 Jessup, Tracey and Flick JJ, J.J. Richards and Son Pty Ltd v Fair Work Australia [2012] FCAFC 53, [69] - [70].
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