Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Downer EDI Engineering Electrical Pty Ltd
[2022] FWC 364
| [2022] FWC 364 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437—Protected action
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Downer EDI Engineering Electrical Pty Ltd
(B2022/78)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 19 FEBRUARY 2022 |
Proposed protected action ballot of employees of Downer EDI Engineering Electrical Pty Ltd whether ballot questions sufficiently specific – whether questions specify nature of the proposed industrial action
Downer EDI Engineering Electrical Pty Ltd (Downer) has been negotiating for an enterprise agreement to replace the Downer EDI Engineering Electrical Pty Ltd Service Agreement 2013 (Downer Agreement),[1] since in or around September 2021. It is not in dispute that the nominal expiry date of the current agreement has passed.
The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) initially applied for a protected action ballot order (PABO) under s 437 of the Fair Work Act 2009 (Cth) (the Act) on 11 February 2022 (initial application). The matter was allocated to my Chambers on 11 February 2022 and heard on 14 February 2020. During the course of the hearing, Counsel for the Applicant conceded that the Applicant had not provided to the protected action ballot agent a copy of the application as prescribed by s 440(a) of the Act. It followed that the initial application was dismissed.
A subsequent application was lodged by the CEPU on 15 February 2022. The matter was allocated to my Chambers on 16 February 2022 and heard on 17 February 2022.
It should be said at this point that is uncontroversial that the CEPU is a bargaining representative of at least some of the employees who will be covered by the proposed agreement. Those employees are electricians who perform maintenance work predominately at two client sites along, what is referred to as, the ‘industrial strip’ in Kwinana, Western Australia.
After conferring with the parties, it was agreed that the parties would rely on materials filed and evidence given for the purpose of the initial application in matter B2022/66.
Mr Woodage, an Organiser for the Electrical Trades Union Division – Western Australian Branch of the CEPU, had provided evidence on behalf of the Applicant for the purpose of the initial application. Downer confirmed that it took no issue with that evidence for the purpose of these proceedings and did not require Mr Woodage to attend the hearing for cross examination.
In the initial application Downer opposed the granting of the PABO on multiple grounds. They included:
(a)the application and draft order did not specify the group or groups of employees to be balloted in accordance with s 437(3)(a) and s 443(3)(b) of the Act; and
(b)the Commission ought not be satisfied that the CEPU has been and is genuinely trying to reach an agreement as required by s 443(1)(b) of the Act.
For these proceedings, no issue was agitated with respect of the specification of the group as the CEPU had reframed the relevant wording, and Downer no longer argued that the CEPU had not and was not genuinely trying to reach an agreement with it.[2] Downer’s remaining objections centred on the ballot questions in the draft order.
Downer had opposed five of the questions in the draft order accompanying the initial application. Those questions were questions 3, 4, 8, 9 and 10. Prior to the initial hearing, on 14 February 2022, and in respect to the issues identified with what were then questions 8, 9 and 10, the parties were placed on notice to be prepared to make submissions regarding the judgment of the Federal Court in Ambulance Victoria v United Voice (Ambulance Victoria).[3]
On making the current application and having considered that which was traversed in the last hearing, the CEPU removed one of the objectionable questions which was now absent in the current draft order. That question read:
8. Refusing to comply with any employer policy and/or employer direction to the extent that the policy and/or direction regulates, restricts or prohibits one or more employee’s conduct on social media and/or one or more employees’ engagement with any other form of public media?
Yes [ ] No [ ]
Furthermore, Downer no longer took issue with questions 3 and 4. Those questions, which had been included in the previous draft order that accompanied the initial application, sought support for the taking of pre-starts and end of shift briefings in a different location.
The controversy that remained was one that plagued ballot questions 8 and 9. Those questions were as follows:
For the purposes of supporting and/or advancing claims in respect of the proposed enterprise agreement with your employer, do you endorse the following protected industrial action against your employer (to be taken either separately, concurrently and/or consecutively):
…
8. An unlimited number of stoppages of work, over an indefinite period or for a specified period, in order to post or otherwise communicate any content on social media or any other form of public media, regardless of whether such conduct would constitute a breach of or refusal to comply with any policy or direction of the employer?
Yes [ ] No [ ]
9. A unlimited number of stoppages of work, over an indefinite period or for a specified period, in order to communicate content to the media, regardless of whether such conduct would constitute a breach of or refusal to comply with any policy or direction of the employer?
Yes [ ] No [ ] [Italics my emphasis]
Downer submitted that the CEPU had failed to properly specify the ballot questions as required by ss 437(3)(b) and 443(3)(d). While it cited the following misgivings, essentially its issue turned on the use of particular words in the questions. Before expanding on that point, the general misgivings were:
a) the question are vague as to date and time, and lack specificity;
b) media and social media are not equal to a stoppage of work;
c) there is no start and finish time for when the type of social media or provision of information to the media will take place; and
d) social media posts are timeless and may be left on the internet without any regulation for them to be removed after the industrial activity has ceased.
It should of course be clarified that some of those misgivings were also clearly intended to address ballot question 8 in the draft order that accompanied the initial application.
However, turning to the remaining controversy, Downer submitted that it wanted to target the words ‘any content’ in question 8 and ‘content to the media’ in question 9. It argued that the questions lacked specificity and failed to advance claims because ‘any content’ and the communication of ‘content to the media’ did not advance claims pressed in bargaining and fell foul of the scope s 19 of the Act.
Before examining this issue further, the broader context and events leading to the making of the application warrant consideration, as does the legislative framework.
Background
As noted, the relevant employees are electricians who perform maintenance work predominately at the companies CSBP and Synergy, both of which are Downer’s clients. Both clients are located along the ‘industrial strip’ in Kwinana, Western Australia. Approximately 20-22 employees work at the CSBP site, depending on workloads, with another 8-10 employees stationed at the Synergy site.
Pre-starts are conducted on shift commencement and are led by a Downer supervisor. From time to time, representatives from either client might be present at the pre-start. At the end of the day, briefings are held where the electricians discuss the events that unfolded during the course of the day. This might include, for example, discussion about the day’s activities and information that needs to be passed back to the client, or arranging for the return of permits or lock-outs to the client.
According to Mr Woodage in or around September 2021, Downer issued a Notice of Representational Rights (Notice) for a proposed agreement. From the time the Notice was issued there had been five bargaining meetings held on following dates: (a) 21 October 2021; (b) 11 November 2021; (c) 25 November 2021; (d) 16 December 2021; and (e) 27 January 2021.
Mr Woodage says that he has attended all of the bargaining meetings, and both the CEPU and the Company have been able to reach in-principle agreement on some of the claims provided by the CEPU at the commencement of negotiations.[4] However, Mr Woodage notes that there are some outstanding claims that relate to: (a) ordinary hours; (b) overtime; (c) income protection; (d) severance provisions; and (e) wages and allowances.
Mr Twomey, Manager Industrial Relations – West, of the Company, detailed that on or around 2 November 2022, the CEPU tabled a series of claims, which included a 5% increase on the ordinary rate of pay as well as several cost related items.[5] The Company explained that it had to consider and work through solutions (presumably to the claims) in an attempt to reach an in-principle agreement.[6]
As at the last meeting on 27 January 2022, the Company submitted that it anticipated the parties could be getting closer to reaching an in-principle agreement on the current claim items. However, the Company reported that the CEPU stated that they were no longer seeking a 5% wage escalation but sought a 15% wage escalation. The Company pressed that the CEPU surprised it with the extraordinary claim for which the CEPU knows that it is impossible for the Company to achieve as a contracting service to clients.[7]
Mr Woodage refutes that at the meeting on 27 January 2022, that a claim for a 15% wage increase was made.[8] In his witness statement Mr Woodage clarified that his statement regarding 15% was said in the following context:
a)he had conducted some site visits before 27 January 2022;
b)representatives of the Company had asked whether he had conducted any right of entry visits since the last meeting and had asked how he went;
c)he stated to the effect, ‘they are not too happy. The guys told me they want 15% just to get up to market conditions’; and
d)this was never intended as a new claim, and he believes this was clear from the context. The CEPU’s claim is for wage increases of 5% per year.
The Company put forward that, while it was perplexed by the CEPU’s new claim, it proceeded to respond to the CEPU’s claims and demonstrate it was genuinely trying to reach an agreement. On this basis, it submitted a proposal for the CEPU’s consideration which included a 5% wage increase on all wage rates, a simplification of the classification structure, wage increase each year of CPI or 1.5% whichever was more and the introduction or variation of multiple allowances.[9]
Legislative Framework
Section 443 of the Act outlines the circumstances in which the Commission is obliged to issue a protected ballot order:
443 When the FWC must make a protected action ballot order
(1) The FWC 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) the FWC 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) The FWC 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.
(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.
(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:
(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and
(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.
(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.
Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.
As can be seen, s 443(1)(a) requires that an application has been made under s 437. That section relevantly provides:
437 Application for a protected action ballot order
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 the FWC 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.
(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.
Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).
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.'
(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.
Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).
(5) If 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) either:
(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or
(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.
Documents to accompany application
(6) The application must be accompanied by any documents and other information prescribed by the regulations.
There are certain circumstances that must be satisfied before a PABO can be granted. In the context of this application, those circumstances are that: (a) there has been an application made under s 437; and (b) the CPEU has been and is genuinely trying to reach an agreement with Downer.[10]
Turning to the latter point, I am satisfied that the CEPU has been and is genuinely trying to reach an agreement. Downer does not argue otherwise. Furthermore, the application has been properly made. There has been a ‘notification time’ in relation to the proposed agreement and there was no dispute that both Downer and the ballot agent received the application within the requisite statutory period.[11]
However, s 443(3) stipulates that a protected action ballot order must specify, amongst other things, the question or questions to be put to the employees who are to be balloted. This includes the nature of the proposed industrial action (see subsection 443(3)(d)).
Issues concerning the ballot questions
Perhaps it could be said that what is critical is about s 443(3)(d) is the specification of the ‘nature of the proposed industrial action’.
That specification is of course important because s 408 of the Act provides that industrial action is protected industrial action if it is what is described as ‘employee claim action relating to a proposed enterprise agreement’. Section 409 defines ‘employee claim action’ in the following terms:
(1)Employee claim action for a proposed enterprise agreement is industrial action that:
(a) is organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement that are only about, or are reasonably believed to only be about, permitted matters; and
(b) is organised or engaged in, against an employer that will be covered by the agreement, by:
(i)a bargaining representative of an employee who will be covered by the agreement; or
(ii) an employee who is included in a group or groups of employees specified in a protected action ballot order for the industrial action; and
(c) …
(d) ...
Protected action ballot is necessary
(2)The industrial action must be authorised by a protected action ballot (see Division 8 of this Part).
To constitute ‘employee claim action’ the ‘industrial action’ in question must have been authorised by a protected action ballot. The Act provides a definition of ‘industrial action’ at s 19(1), the relevant subsections for the purpose of this decision read:
(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) …
It is accepted that s 19 of the Act informs the meaning of the term ‘industrial action’ as referred to in s 443(3)(d). So much is clear from the Full Bench decision in Mornington Peninsula Shire Council v Australian Municipal, Administrative, Clerical and Services Union[12] (Mornington v ASU) where the following was said:
[24] The question whether action described in an application for a protected action ballot
order is capable of being properly described as industrial action within the meaning of s.19 of
the FW Act is answered primarily by construing the words used in any proposed question,
ascertaining the nature of the action described by the proposed question and determining
whether that action (having regard to the work performed by employees who are to beballoted) is capable of falling within the exhaustive statutory definition of industrial action.
In Mornington v ASU, the Full Bench considered, amongst other ballot questions, the following action:
Interrupting work periodically, over an indefinite period or for specified periods in order to type or re-type, for the purpose of including in each email to be sent, the following statement: “I am taking protected industrial action because staff deserve job security. Email your objection to the CEO Carl Cowie, [email protected]
The Full Bench provided the following analysis regarding that ballot question:
[27] We consider that the action for which authorisation is sought in 2 is the action of “interrupting work periodically, over an indefinite period or for specified periods”. That which follows merely describes conduct in which an employee will engage whilst interrupting
his or her work. Viewed in this way, the action is quintessentially industrial action as defined. The activity in which an employee will engage during the interruption of work sets the period
or duration of the industrial action, being the interruption to the work. That is, the interruption
will occur for the period of time that it takes an employee to include the statement in a
relevant email or emails that forms part of the work the employee normally performs before
sending it to them. The activity also has the effect of delineating the nature of the interruption
to work that will be authorised (for the purpose of typing or retyping the statement) from an
interruption to work for another purpose that will not be authorised.[28] However, even if the conduct in which an employee will engage during the period that
work is to be interrupted pursuant to 2, can be said to form part of the action for which
authorisation through the ballot is sought, we consider that the action as described as a whole
in 2 is capable of being industrial action as defined in s.19 of the FW Act. This is because the
action of typing or retyping in each email to be sent, the identified statement, and then
sending the email, appears to us to be “the adoption of a practice in relation to work (sending
emails) by an employee”, which when combined with the interruption to the work in order to
type or retype the relevant message, has the result that there is “a delay in the performance ofthe work”.
In that same decision the Full Bench also traversed the tension between the decision of the Full Bench in Australian Nursing Federation v Mornington Peninsula Shire Council[13] (ANF v Mornington) and the judgment of the Federal Court in Ambulance Victoria v United Voice.[14] Arriving at the conclusion that a preference for the reasoning in Ambulance Victoria v United Voice over that in ANF v Mornington does not render ANF v Mornington wrong, the Full Bench expressed:
[42] First, it must be understood that which was required to be decided in each case. The
decision in ANF v Mornington concerned an appeal from the making of a protected action
ballot order containing a question which was said not to describe action that was industrial
action. An application by a bargaining representative for a protected action ballot order must,
inter-alia, specify “the question or questions to be put to the employees who are to beballoted, including the nature of the proposed industrial action” (our emphasis).
[43] The central question that required resolution in Ambulance Victoria was whether one
of the forms of industrial action about which notice was given by the bargaining
representative pursuant to s.414 of the FW Act constituted industrial action of a kind that was
protected by s.515. Section 414 of the FW Act provides that before a person engages in an
employee claim action for a proposed agreement, a bargaining representative of an employee
who will be covered by the agreement “must give written notice of the action to the employerof the employee” (our emphasis).
[44] It should immediately be apparent that the specificity with which “the action” is to be
described in a notice might not be the same as a requirement that a question in a ballot include
“the nature of” the proposed industrial action. Both concern describing action that is industrial
action as defined in s.19 of the FW Act. However, the specificity with which the action needs
to be described seems to us to be different. It seems to us that the structure of the differing
legislative requirements, contemplates that at the time that a member of the Commission
comes to consider whether to make a protected action ballot order, the context and manner in
which employees might subsequently choose to take proposed industrial action, the nature of
which is described in the question, may not be clear. However, different considerations will
apply once a ballot has been conducted, the nature of the industrial action has been approved,
and a bargaining representative gives notice of the action that will be taken by employees.
When the notice is given, greater clarity about the context and manner in which employees
will take industrial action, will doubtless be apparent and so greater clarity in describing theaction to be taken will be required.
In Ambulance Victoria v United Voice, the Federal Court made the salient observation that it is to be borne in mind that the term ‘industrial action’ bears the same meaning in s 437 as it does in ss 409 and 415.[15] It is timely to consider this judgment in greater detail because while it considered whether particular industrial action attracted the immunity provided by s 415 of the Act, it nevertheless provides relevant analysis on the interpretation of s 19 – in part drawn from the dissenting decision of Kaufman SDP in ANF v Mornington.[16]
In Ambulance Victoria v United Voice,[17] Ambulance Employees Australia Victoria (the AEA), a Branch Section of United Voice as it then was, gave notice to Ambulance Victoria of proposed industrial action. As observed, the central question that the Federal Court was required to decide was whether proposed Action 12 constituted industrial action of the kind that is protected by s 415 of the Act. The AEA wished to obtain for itself and its members the protection provided by s 415(1) of the Act.
The protected action ballot that the AEA had caused to be conducted had of course included abovementioned Action 12. Action 12 read:
12. Members who are acting/appointed Team Managers and Senior Team Managers will make all response time data for available (sic) to the media without the approval of Ambulance Victoria’s Executive General Managers.
The Secretary of the AEA subsequently advised Ambulance Victoria that it was only proposed that members would take such action during their ‘function time’, which referred to normal hours of duty. In reference to the term ‘response time’ in Action 12, the Court explained that it was the time taken between the receipt of a call for ambulance assistance and the time at which the first responding unit arrives to treat the patient.
Action 12 involved managers providing response time data to the media without the necessary approval of their supervisors. The Court identified that the managers had access to the data for the purpose of performing their duties, but it was not part of their duties to provide the information to any person outside Ambulance Victoria including the media.[18]
During the course of the Court’s analysis, the decision of the Full Bench in Australian Nursing Federation v Mornington Peninsula Shire Council at both first instance ([2011] FWA 4235) and on appeal ([2011] FWAFB 4809) was considered. In that case, the ANF had applied to Fair Work Australia for an order requiring a protected action ballot. By s 437(3)(b) of the Act, the application had to specify the question or questions to be put in the ballot. One of the questions proposed by the ANF was whether the balloted employees were prepared to authorise industrial action ‘in the form of distributing information to clients, and the media about the reason for industrial action, and the wearing of campaign clothing?’. The Council objected to the inclusion of this question on the ground that the proposed conduct was not ‘industrial action’ within the meaning of s 19 of the Act.
The Court extracted a passage of Lawler VP at first instance where the Vice President had reasoned:
[7] Paragraphs 19(1)(a) and (b) are concerned with the way in which work is performed. Performance of work in a manner that is contrary to a lawful direction about how that work is to be performed prima facie amounts to industrial action as defined in s.19.
[8] In my view, the actions to which question 5 is directed are action that are, depending upon the circumstances, capable of amounting to industrial action as defined and therefore can properly be included in a list of questions for a protected action ballot.
[9] Prima facie, an employer, is entitled to give a lawful direction to an employee about
(a) the information or types of information that are, or are not, to be conveyed by an employee during the course of their employment to members of the public and others with whom the employee interacts in their work capacity; and
(b) clothing that must, or must not, be worn by an employee when performing his or her work.
[10] Such a direction may properly be characterised as a direction about the way in which work is to be performed. As such, a refusal to follow such a direction will involve industrial action. It follows that employees who wish to take action of this sort as part of a campaign for an enterprise agreement and yet ensure that the taking of such action does not involve unprotected industrial action have a legitimate basis for seeking to include a question such as question 5 in a protected action ballot.
[11] There can, and have, been industrial disputes about such matters. Indeed, the wearing of union badges and other union insignia has been a contentious industrial matter since the early years of the 20th century.
The Court thereafter referred to the Full Bench decision on appeal extracting passages of the majority, and the dissenting decision of Kaufman SDP. The majority in ANF v Mornington found that the action specified in Action 12 was ‘capable, depending on the circumstances, of constituting “industrial action”’ (italics my emphasis), and expressed that in its view:
… the term “the performance of work” within s.19(1)(b) of the Act is not restricted to how the tasks associated with a particular job are performed. It involves for example when work is performed, where work is performed, how work is performed and the conditions under which work is performed.
[26] Clearly ss.19(1)(a) and (b) of the Act are directed at different conduct. In s.19(1)(a) the conduct must cause a particular result, namely a restriction or limitation on, or a delay in the performance of work.
[27] In s.19(1)(b) of the Act there need be no result from the conduct; there must simply be a ban limitation or restriction on the performance of work or on the acceptance of or offering for work by an employee.
…
[30] Section 19(1)(b) of the Act is therefore directed to both the work the employees do and the circumstances in which they offer to do it.
The Court wrote that the majority of the Full Bench on appeal held that the distribution of information to the media about the reason for industrial action could constitute ‘industrial action’ ‘if employees ceased or interrupted their work in order to communicate the reasons for industrial action to clients or the media’. The Full Bench expressed that in that circumstance, the action would clearly involve the performance of work by an employee in a manner different from that in which it is customarily performed, the result of which is a restriction or limitation on, or a delay in, the performance of the work (s. 19(1)(a)) and a ban, limitation or restriction on the performance of work by an employee (s. 19(1)(b)).”
However, the Court at paragraph [17] of the judgment, also referred to the dissenting decision of Kaufman SDP in ANF v Mornington, who stated:
[59] The first element of (a) is that there be a performance of work by an employee. Here the work performed by the 19 or so employees affected is that of supporting new mothers after they have given birth. They perform their work either at the council’s maternal and child healthcare centre or they visit the homes of those whom they support. The second element is the manner in which the work is performed. It must be in a manner different from that in which it is customarily performed. The third element, which is an alternative to the second, is that there be the adoption of a practice in relation to the work. In each instance, the action must result in a restriction or limitation on, or a delay in, the performance of the work.
[60] Under (b) there must be a ban, limitation or restriction on the performance of work by the employee engaging in the conduct or on the acceptance of or offering of work by the employee.
[61] There are two types of conduct contemplated by question 5: first, the distribution of information to clients and the media and, secondly, the wearing of campaign clothing. It is necessary to ascertain whether either type of conduct falls within the definition of industrial action in s.19(a) or (b).
[62] I fail to see how either type of conduct falls within either limb of the definition. The first conduct sought to be approved – the distribution of information – even be it within working hours, says nothing about performing the work in a manner different from that in which it is usually performed or the adoption of a practice in relation to the work. There is nothing in the nature of the proposed conduct that suggests that it would result in a restriction or limitation on, or a delay in, the performance of the work. Had the proposed conduct been along the lines of say, a stoppage of work for 5 minutes per shift or per hour in order that information might be distributed, I would have come to a different conclusion. However, the conduct sought to be approved does not contemplate the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, the result of which would be a restriction or limitation on, or a delay in, the performance of the work. In my view, conduct that had either of those effects would not be conduct that was authorised by an affirmative vote in favour of question 5.
[63] The dissemination of information is clearly not a ban, limitation or restriction on the performance of work and does not fall within s.19(b).
The Court observed that the Commission (and its predecessor), have understandably been reluctant when dealing with applications made under s 437 of the Act, to find that proposed action can never constitute industrial action within the meaning of s 19.[19] The Court stated that ‘the terms in which the proposed action is described for the purposes of the ballot may lack legal precision and, more significantly for present purposes, may or may not constitute industrial action depending on the manner in which the action is performed’.[20]
Furthermore, it was observed by the Court that it will often be difficult for the Commission to anticipate at the time it makes an order under s 437, the context and manner in which union members might choose to take the proposed action. However, once a ballot has been conducted and the action is imminent or has occurred greater clarity will often be present.[21]
Returning to the Full Bench decision in Mornington v the ASU, the Full Bench agreed with his Honour’s observations in Ambulance Victoria v United Voice, where he had traversed the majority’s decision in ANF v Mornington:
17. They (meaning the majority in ANF v Mornington) held (at [23]) that the distribution of information to the media about the reason for industrial action could constitute “industrial action” “if employees ceased or interrupted their work in order to communicate the reasons for
industrial action to clients or the media. In that circumstance, the action would clearly involve the performance of work by an employee in a manner different from that in which it is customarily performed, the result of which is a restriction or limitation on, or a delay in, the performance of the work (s.19(1)(a)) and a ban, limitation or restriction on the performance of work by an employee (s. 19(1)(b)).”…
19. It is, however, to be borne in mind that the term “industrial action” bears the
same meaning in s 437 as it does in ss 409 and 415. That is the meaning prescribed by s 19(1). In some respects, in my respectful opinion, the constructions, placed on paragraphs 19(1)(a) and (b), by the Vice President and the Full Bench majority in the ANF case, are too broadly stated.20. In the first place, the “work” referred to in the definition sections is not “work”
generally. It is the “work” performed by an employee. The relevant employee
is an employee who is taking the relevant action. So much was held by Wilcox
and Cooper JJ (with whom Burchett J relevantly agreed) in David’s
Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999)
165 ALR 550. In dealing with the equivalent definition of “industrial action”
under s 4 of the Workplace Relations Act 1996 (Cth), which, notably, omitted
the words “by an employee” after the words “performance of work” in the
relevant paragraphs, expressed the view (at 570) that:“... consistently with the tentative view of the Full Court in [CFMEU v
Giudice (1998) 159 ALR 1], we think the paragraph ought to be read as
applying only to limitations on the work of those imposing the ban. The
history of the legislation and policy considerations persuades us it is
likely parliament intended to confine the paragraph in this way.”21. In CFMEU v Giudice the Full Court’s tentative view was “that para (c) [the
equivalent of s 19(1)(b)] in its entirety is directed to the conduct of employees
who engage in conduct limiting the work they do or the circumstances in which
they offer to do it.”22. The addition of the words “by an employee” in the extant definition confirms,
in my view, that the definition is so confined.23. It is, therefore, necessary to identify work normally performed by the relevant
employees and the manner in which it is customarily performed. The duties of
the managers include the collection and analysis of information relating to
response times of ambulances in their areas. It is not part of their duties to
provide such information to persons outside Ambulance Victoria, including
reporters and others engaged by media outlets. It cannot, in my opinion, be said
that making response time data available to the media, in breach of their
contracts of employment, involves the performance of their normal work in a
manner different from that in which it is customarily performed. It may be
different if their work involved the provision of material to the media through
certain approved channels and the employees chose to distribute the
information by other means. That is not this case. The fact that the proposed
action is contrary to contractual terms which are binding on the employees
does not, for that reason, amount to the performance of duty in a mannerdifferent from the norm. Rules, policies and contractual provisions which
proscribe conduct of certain kinds by employees regulate the conduct of those
employees in the course of their employment. They do not impinge directly on
the manner in which work is performed. A breach of such a proscription
cannot, in my opinion, be regarded as a departure from the customary manner
of performance of an employee’s work. Were it otherwise, contraventions by
employees of policies which prohibit sexual harassment or discrimination of
various kinds could be regarded as departures from the customary manner of
performance of work and thereby amount to industrial action.24. In any event, the proposed action in this case cannot, in any relevant sense, be
said to result in a restriction or limitation on or a delay in the performance of
the employee’s normal duties. What is proposed is the taking of action above
and beyond and outside the range of their normal work rather than the placing
of a restriction on the performance of those duties. It should not be assumed or
inferred that the proposed action will interfere in any way with the performance
of the managers’ normal duties. In the course of any shift brief breaks can be
and are taken for purposes such as informal conversations with colleagues,
toileting and meals. Such breaks do not impinge on the performance of the
employee’s normal duties. Communication could occur during such times
without interference with normal work. It might also occur in the few seconds
involved in the dispatch of an e-mail. Like Kaufman SDP, I accept that the
position might be different were the proposed conduct to include express
provision for a stoppage of work, even for a short period, in order for the
managers to distribute data to the media. No such action has been proposed by
the AEA. Section 19(1)(a) is, therefore, not engaged.25. For the same reasons there is no relevant limitation or restriction for the
purposes of s 19(1)(b). Furthermore, there is no “ban” for the purpose of that
paragraph. As Hollingworth J held in Energy Australia Yallourn Pty Ltd v
Construction, Forestry, Mining and Energy Union [2013] VSC 105 at [34] the
word “contemplates a prohibition on work, rather than a prescription to
perform work in a certain way or to achieve a certain result.” Action 12 doesnot include any prohibition on work. (citations omitted) (italics by way of explanation).
The Full Bench in Mornington v ASU also expressed its agreement with the construction of s 19(1)(a) and (b) by Ross J in United Firefighters Union of Australia v Easy:[22]
153. The first element of s 19(1)(a) is that the performance of work by the employee
must be in a manner different from that in which it is customarily performed.
The second element, which is an alternative to the first, is that there must be
the adoption of a practice in relation to the work. In both instances, the action
must result in a restriction or limitation on, or a delay in, the performance of
the work.154. In the context of this case, I do not consider that the wearing of campaign
clothing falls within either limb of the definition of industrial action in s19(1)(a) of the Act. Wearing particular clothing whilst performing work has
nothing to do with the manner in which the work is performed. There is no
evidence that MFB non-operational staff were required to wear a particular
uniform, nor is there any evidence of a policy proscribing the wearing of union
t-shirts. There may conceivably be situations where particular work can only be
performed whilst wearing certain clothing and the refusal to wear that clothing
could affect the manner in which the work is performed and result in a
restriction or limitation on, or a delay in, the performance of the work. But this
is not such a case. Thus Ms Antonakis’ wearing of the UFU t-shirt did not fall
within s 19(1)(a) of the definition of ‘industrial action’.155. Under s 19(1)(b) there must be a ban, limitation or restriction on the
performance of work by the employee engaging in the conduct or on the
acceptance of or offering of work by the employee.156. The meaning of the expression ‘a ban, limitation or restriction on the performance of work ... or on acceptance of or offering for work’, was considered by the Full Court in Davids Distribution Pty Ltd v National Union of Workers,[123] albeit in a different statutory context (i.e. the definition of ‘industrial action’ in s 4(1)(c) of the Workplace Relations Act 1996 (Cth)). In their judgment, with which Burchett J relevantly agreed, Wilcox and Cooper JJ
adopted the tentative view expressed by the Full Court in Construction, Forestry, Mining and Energy Union and Ors v Giudice and Ors[124] and said: ‘... we think the paragraph [s.4(1)(c)] ought to be read as applying only to limitations on the work of those imposing the ban.’[125]157. If an employee is only prepared to perform work if they are wearing a particular item of clothing then they are placing a limitation or restriction on the performance of work or on the acceptance or offering for work. But that is not this case. (citations omitted).
However, at this point it is timely to return to what was said by his Honour in Ambulance Victoria v United Voice where he observed at paragraph [18] that the Commission has, understandably, been reluctant when dealing with applications made under s 437 to find that the proposed action can never constitute industrial action within the meaning of s 19. His Honour detailed why this was the case – reasons of which have been detailed at paragraphs [47] – [48] of this decision. One of the difficulties identified was that it would often be difficult for the Commission to anticipate, at the time it makes an order under s 437, the context and manner in which union members might choose to take the proposed action. Of course, once a ballot had been conducted and the action was imminent or had occurred, greater clarity would often be present.
In Mornington v ASU, the Full Bench responded to his Honour’s observations stating:
[46] True it is that in both instances the question will be whether the action described is
industrial action as defined. However, absent material about context and manner of taking the
action described in a protected action ballot application question during the determinative
phase of considering whether to make a protected action ballot order, it should be unsurprising that action that is capable of being industrial action will be permitted to be included in questions directed to employees who are to be balloted. In this regard, we respectfully agree with the reasoning of Commissioner Hampton in Health Services Union v Clinical Laboratories Pty Ltd T/A Healthscope Pathology.[23]
In Health Services Union v Clinical Laboratories Pty Ltd T/A Healthscope Pathology (Clinical Laboratories),[24] the HSU contended it was not necessary for the Commission to consider whether the proposed questions may be industrial action (as defined) at the stage of a PABO application. Hampton C stated at paragraphs [34] and [35]:
… Although this requirement is not expressly stated, it is a necessary implication of the provisions. That is, the questions must be about industrial action and this is a defined term. In addition, some of the decisions relied upon by the HSU, including John Holland, were expressly dealing with that issue as part of a PABO application.
[35] Accordingly, it is necessary to find that the questions concern action that at least has the potential to be industrial action if taken by all or some of the group of employees being balloted.
In the matter before me, the CEPU submitted that ballot questions 8 and 9 were capable of being industrial action as defined by s 19(1)(a) or alternatively by s 19(1)(b). During the hearing, I queried whether the relevant question was in fact whether or not the action so described in the ballot question was capable of being industrial action.
In Transport Workers’ Union of Australia v Prosegur Australia Pty Ltd[25] (Prosegur) the Full Bench at paragraph [38] provided a useful analysis between the turns of phrase used in ss 443(3)(d) and 414(6) of the Act. The first, s 443(3)(d) speaks of the ‘nature of the proposed industrial action’ and the latter, s 414(6), of the ‘specification of the nature of the action’. The Full Bench explained:
…Section 443(3)(d) and s 414(6) use different language and are concerned with different subject matters. The former provision requires specification of the nature of the “proposed industrial action” in a question in a protected action ballot. It is thus concerned with the identification of categories of industrial action that might be taken in the future, with the statutory purpose being for employees to be able to understand the type of industrial action that they are being asked to authorise. By contrast, s414(6) requires specification of the nature of the “the action” – that is, identification of industrial action which employees are actually going to undertake. In that circumstance, the precise form of industrial action to be taken will be known to a bargaining representative. The provision’s purpose is to allow the employer an opportunity to take defensive measures in response to the industrial action. In that context, a greater degree of particularity may be required than under s 443(d).
As was identified by the Full Bench in Prosegur, the question to be asked is whether the ballot question specifies the nature of the proposed industrial action such that it identifies categories of industrial action that might be taken in the future. The statutory purpose for this, as observed by the Full Bench, is to allow employees to understand the type of industrial action that they are being asked to authorise.
If there is a tension between what was expressed in Prosegur and that which was expressed in Clinical Laboratories and Mornington v ASU, I make the following observations. Section 443(3)(d) refers not to an action being potentially ‘industrial action’ or being capable of constituting industrial action. It requires the ballot question to include the nature of the industrial action, which in turns means the identification of categories of industrial action. The term ‘industrial action’ clearly derives its meaning from s 19 of the Act.
Question 8
Question 8 of the draft order states:
8. An unlimited number of stoppages of work, over an indefinite period or for a specified period, in order to post or otherwise communicate any content on social media or any other form of public media, regardless of whether such conduct would constitute a breach of or refusal to comply with any policy or direction of the employer?
Yes [ ] No [ ]
There is an inherent complexity about what on its face appears to be a simple question. In its first subclause, the question asks an employee to vote upon whether she or he wishes to take unlimited stoppages of work over an infinite period or for a specified period. If we were to stop there, then the nature of the action specified would appear to constitute a ban to perform work or refusal to perform work – either way falling under a category of industrial action so described in s 19(1) of the Act.
However, there is a reported purpose for the work stoppage. Namely, for employees to or otherwise communicate any content on social media or any other form of public media, regardless of whether such conduct would constitute a breach of or refusal to comply with any policy or direction of the employer.
As observed, in Mornington v ASU, the Full Bench contended with the following ballot question:
Interrupting work periodically, over an indefinite period or for specified periods in order to type or re-type, for the purpose of including in each email to be sent, the following statement: “I am taking protected industrial action because staff deserve job security. Email your objection to the CEO Carl Cowie, [email protected].[26]
The Full Bench distinguished between the ‘action’ and that which followed. In that case, the action was considered to be the action of ‘interrupting work periodically, over an indefinite period or for specified periods’. Concerning the insertion of the statement into emails to be sent, the Full Bench observed at paragraph [27], that which ‘follows merely describes conduct in which an employee will engage whilst interrupting his or her work’, and viewed in this way, the action was quintessentially industrial action as defined.[27]
At paragraph [28] of the Full Bench decision in Mornington v ASU, it was said that even if the conduct engaged in, in the interruption of work, could be said to form part of the action for which authorisation through the ballot was sought, the Full Bench considered the action described as a whole capable of being industrial action as defined in s 19. This was because the action was the adoption of a practice in relation to work (sending emails) by an employee which when combined with the interruption to the work in order to type or retype the relevant message, has the result that there is “a delay in the performance of the work.
If the reasoning of the Full Bench at paragraph [27] in Mornington v ASU was adopted in this case, it would arguably lead to employees voting to authorise proposed industrial action the nature of which was in part unknown. This is because in Mornington v ASU there was acceptance that the conduct which follows a stoppage or interruption, or occurs during that period, is ‘merely’ a description of the conduct which will be engaged in during the work interruption, such that it does not constitute part of the proposed industrial action.
Question 8 refers to ‘any content’. While the CEPU submits that the introductory paragraph to the ballot questions qualifies the term ‘any content’ such that it is implicit that in every form of action taken, it is taken to advance the claims pursued by the union and as such circumscribes the type of industrial action – meaning the action cannot be taken for something that is unrelated to the bargaining, I do not consider this to be the case. The presage to question 8 does not illuminate such limitation.
It could therefore be the case that what the CEPU has asked its members to vote on is an unlimited number of stoppages of work over an indefinite period or for a specified period, in order to post or otherwise communicate any content on social media or any other form of public media that might well be unrelated to the industrial context on foot, such as racist content – to take an extreme example.
If one considers the observations of the Full Bench at paragraph [28] of the Mornington v ASU, the judgments of Tracey J in Ambulance Victoria v United Voice and Ross J in United Firefighters Union of Australia v Easy, it also cannot be said that the second subclause of question 8 speaks of electricians performing work in a manner different to that in which it is customarily performed (first element of s 19(1)(a)) or that there is an adoption of a practice in relation to the work (second element of s 19(1)(a)). The relevant employees are electricians, their jobs not extending to communications and media as one might understand in a corporate context.
For the reasons provided, I am of the view that question 8 does not specify a question which includes what is properly described as being in the nature of proposed ‘industrial action’, as that term ‘industrial action’ is understood by reference to s 19 of the Act.
However, it is important to appreciate that this Commission as currently constituted is of course duty bound to follow Full Bench authority.[28] It is noted that there is no departure from such authority, such as Mornington v ASU or for that matter Ambulance Victoria v United Voice, but what can be concluded is that question 8 does not describe the nature of the proposed industrial action in such a way that employees are capable of responding to it.[29] To be able to respond, the application should propose a question and contain other details about the nature of the industrial action and other relevant matters that will permit employees to make an informed choice on whether to authorise the nature of the proposed industrial action specified in the question.[30] This has not occurred in this case.
Question 9
I do not intend to labour the point regarding question 9 because in my view it is infected, for want of a better word in this epoch, by the issues that rendered question 8 apt for removal. Hence the reasoning regarding ballot question 8, is adopted in respect of Question 9, which reads:
9. A unlimited number of stoppages of work, over an indefinite period or for a specified period, in order to communicate content to the media, regardless of whether such conduct would constitute a breach of or refusal to comply with any policy or direction of the employer?
Yes [ ] No [ ]
The reference in ballot question 9 is, in short, to stoppages of work in order to communicate ‘content to the media’. As was identified by Downer, as to what the nature of that content is, it is unknown. Repeating what was said for question 8, question 9 does not describe the nature of the proposed industrial action in such a way that employees are capable of responding to it.[31] To be able to respond, the application should propose a question and contain other details about the nature of the industrial action and other relevant matters that will permit employees to make an informed choice on whether to authorise the nature of the proposed industrial action specified in the question.[32] This has not occurred in this case.
Conclusion
Having considered all materials filed and the evidence given in this matter, as well as the submissions of the parties, I have concluded that the requirements for the making of a protected action ballot order have been met. Accordingly, the Commission is required under s 443 of the Act to make a protected action ballot order.
Questions 8 and 9 have been removed from the Order,[33] for the reasons given. It is observed that s 599 of the Act, does not require me to make a decision in relation to the application in the terms applied for. The Order[34] was issued in advance of this decision on 18 February 2022.
DEPUTY PRESIDENT
Appearances:
Mr Armen Aghazarian on behalf of the Applicant the CEPU;
Mr Clarence Paul on behalf of the Respondent Downer EDI Engineering Electrical Pty Ltd.
Hearing details:
Perth (Video)
17 February 2022.
[1] [2013] FWCA 2553; AE400962; PR536024.
[2] Fair Work 2009 (Cth), s 443(1)(b) (The Act).
[3] [2014] FCA 1119 (Ambulance Victoria).
[4] Statutory Declaration of Adam Samuel Woodage, [9] (Woodage Declaration).
[5] Company’s Outline of Submissions dated 11 February 2022, [3(a)] (Company’s Submissions).
[6] Ibid [3(a)].
[7] Ibid [3(c)].
[8] Witness Statement of Adam Samuel Woodage, [4] (Woodage Statement).
[9] Company’s Outline of Further Submissions dated 11 February 2022, [5] (Company’s further Submissions).
[10] The Act (n 2) s 443.
[11] Ibid s 440.
[12] [2017] FWCFB 4740 (Mornington v ASU).
[13] [2011] FWAFB 4809; (2011) IR 419 (ANF v Mornington).
[14] Ambulance Victoria (n 3).
[15] Ibid [19].
[16] ANF v Mornington (n 13).
[17]Ambulance Victoria (n 3).
[18] Ibid [11].
[19] Ibid[18].
[20] Ibid.
[21] Ibid.
[22] [2013] FCA 763.
[23] Mornington v ASU (n 12) [46].
[24] [2014] FWC 8809.
[25] [2021] FWCFB 1562.
[26] Mornington v ASU (n 12) [25].
[27] Ibid [27].
[28] Pacific Access Pty Ltd v Community and Public Sector Union (1998) 83 IR 323, 333.
[29] John Holland Pty Ltd v Automotive, Food, Metals Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU)[2010] FWAFB 526, [19] (John Holland).
[30] National Union of Workers—New South Wales Branch v FreshExchange Pty Ltd [2009] FWA 221, [10] (Freshexchange).
[31]John Holland (n 29) [19].
[32]FreshExchange (n 30) [10].
[33] PR738545.
[34] PR738545.
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