Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Ergon Energy Corporation Limited
[2011] FWA 8475
•5 DECEMBER 2011
[2011] FWA 8475 |
|
DECISION |
Fair Work Act 2009
s.447 - Application for variation of protected action ballot order
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Ergon Energy Corporation Limited
(B2011/4023)
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Energex Limited
(B2011/4026)
Queensland Services, Industrial Union of Employees
v
Ergon Energy Corporation Limited
(B2011/4030)
Queensland Services, Industrial Union of Employees
v
Energex Limited
(B2011/4031)
COMMISSIONER ASBURY | BRISBANE, 5 DECEMBER 2011 |
Application for variation of protected action ballot orders - Application seeks extension of date by which protected action ballot closes - Where ballot conducted by AEC, FWA has power to set date by which ballot is to close - Where ballot conducted by AEC, FWA does not have power to set date upon which ballot is to close - Applications dismissed.
The following decision, now edited, was issued during proceedings on 2 December 2011.
The applications
[1] This decision deals with four applications for variations of protected action ballot orders. The applications are made under s. 447 of the Fair Work Act 2009 (the Act).
[2] The applicants are the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia CEPU) and the Queensland Services Union, Industrial Union of Employees (QSU). The applications relate to protected action ballot orders made on 4 November 2011, by the Tribunal as presently constituted. The Respondents are Energex Limited (Energex) in respect of B2011/4031 and B2011/4026 and Ergon Energy Corporation Limited (Ergon) in respect of B2011/4023 and B2011/4030.
[3] Each application seeks to vary the relevant protected action ballot order, by extending the voting period. Essentially, the applications assert that the protected action ballot orders made by FWA on 4 November 2011 required that voting in the ballots was to close 20 working days from 4 November 2011 - on 2 December 2011.
[4] The applications further assert that contrary to the terms of the order, the ballots were closed on 29 November 2011. The applications seek a variation of the orders by extending the closing date of for the ballot by 15 days, to rectify what is said to be an error in the conduct of the ballot.
[5] The applications are met with jurisdictional objections from Energex and Ergon. The basis of those objections is that, on a proper construction of the provisions of Chapter 3, Division 8 of the Act, Fair Work Australia does not have power to require that a ballot close on a specified date when the ballot is conducted by the Australian Electoral Commission (AEC).
The facts
[6] In each case, the protected action ballot order provides at Item 2 that the ballot is to be conducted by the AEC. At item 4, each order provides as follows:
DATE BY WHICH BALLOT CLOSES
The date by which voting in the protected action ballot is to close is 20 working days from the date of this order.
[7] Each of the orders was made on 4 November 2011. Voting in the protected action ballots closed at 10.00 am on 29 November 2011 - 18 days after the orders were made.
[8] Appended to each of the applications is Advice to the applicant and the employer from the AEC stating that the ballot will open on 17 November and close at 10.00 am on 29 November 2011.
[9] The advice to Ergon and the relevant Unions from the AEC is dated 11 November 2011 and the advice to Energex and relevant Unions is dated 10 November 2011. The letters setting out the advice from the AEC are not in evidence, but given they are appended to the applications in each case, I have taken the information set out in those letters into account in reaching this decision. I have also taken into account information provided by the AEC to Fair Work Australia, pursuant to its obligations under s.457(1)(b)(iii) of the Act.
[10] The ballots in relation to employees of Ergon Energy Corporation Limited (B2011/3822 and B 2011/2824) have been completed and the formal declaration of results has been provided to Fair Work Australia. That information was provided by the AEC and received by Fair Work Australia on 30 November 2011 at 6.04pm (B2011/3822 ) and 7.03pm (B2011/3824).
[11] The ballots in relation to employees of Energex Limited (B2011/8323 and B2011/8325) have also been completed and the formal declaration of results provided to FWA. That information was provided by the Australian Electoral Commission on 30 November 2011 at 6.12pm (B2011/3823) and on 1 December 2011 at 1.30pm (B2011/3825). In both cases, the majority of employees who cast a vote have not approved the industrial action described in the questions upon which they were balloted.
[12] The AEC has also provided Reports about the conduct of the ballot to FWA in accordance with s.458 of the Act. The reports relate to complaints received about the conduct of the ballots by each of the applicants in these proceedings, and findings are made to the effect that the complaints do not substantiate any irregularities in the already completed ballots, and that there is no plausible reason to discontinue finalisation.
The jurisdictional objections
[13] As previously stated the applications for variation of the protected action ballot orders are made under s.447 of the Act.
[14] Ergon and Enegex contend that by virtue of s.443(3)(c) Fair Work Australia has power to specify the date by which voting in a protected action ballot closes and that this provision should be construed as empowering Fair Work Australia to specify the outer limit of the time frame in which a protected action ballot is to be conducted, and not the date on which the ballot is to close.
[15] Ergon and Energex further contend that in circumstances where the ballot is conducted by the AEC, the AEC is empowered to timetable the ballot and to establish a date upon which the ballot will close, which is no later than the date specified by Fair Work Australia in the protected action ballot order. The Australian Electoral Commission is then required to consult with the employer and the applicant for the ballot in relation to the timetable.
Legislative provisions
[16] The Act effectively establishes the Australian Electoral Commission as the body to conduct a protected action ballot unless an alternative agent is named in the application and any resulting order: s.437(4) and s.444. There are restrictions on the determination of an agent other than the Australian Electoral Commission.
[17] By virtue of s.443(3)(c) a protected action ballot order must specify the date by which voting in the protected action ballot closes. Significantly, this provision does not require that an order specify the date on which the ballot closes.
[18] Section 449(2) provides that the protected action ballot agent must conduct the ballot in accordance with “the timetable for the ballot”. In my view, the term “timetable” necessarily encompasses the date upon which the ballot will be opened and the date upon which it will close.
[19] Section 451(2) provides that an agent conducting a ballot must develop a timetable. This provision applies automatically if the ballot is conducted by the AEC. Where the ballot is conducted by an agent other than the AEC, s.451(2) applies only where FWA has directed that alternative agent to comply with the section.
[20] Section 450(2) empowers Fair Work Australia to give directions for the development of a timetable for a ballot in circumstances where it is to be conducted by an agent other than the AEC. In those circumstances, I am of the view that Fair Work Australia can determine the timetable, including the date on which the ballot is to open or close, or direct the agent to do so pursuant to s.451(2).
[21] Fair Work Australia cannot direct the AEC in relation to the timetable for conducting the ballot, but rather, Fair Work Australia can direct that the ballot must be completed within a certain time or by a certain date. The AEC is then empowered to set an actual date for the ballot to close within the parameters set by the order of Fair Work Australia. The AEC is required to consult with the employer and the applicants about the timetable. In my view, Fair Work Australia does not have the power to direct the AEC to conduct the ballot so that it closes on a particular date.
[22] It may be that Fair Work Australia has the power to make such a direction in circumstances where the ballot is to be conducted by an agent other than the AEC. It may also be the case that Fair Work Australia can deal with issues in relation to the closing date of a ballot before that date is reached, by means other than directing the AEC to close the ballot on a particular date, for example by extending the date on which the ballot is to close and expressing a view on that issue.
[23] I do not accept the argument advanced by the applicants that this construction of the Act results in the power under s.447 being inchoate.
[24] An applicant for a protected action ballot order may apply to Fair Work Australia to vary it. Such a variation may include the questions to be put to ballot, the description of the group of employees to be balloted, or to extend or curtail the date by which the ballot must close.
[25] The agent, including the AEC, may also seek to vary the order in relation to the date by which the ballot is to close. This variation may be sought, for example, if the ballot agent forms a view that it could not reasonably comply with the requirement in the order to close the ballot by a certain date. This construction is consistent with the time frames in which such an application can be made as set out in s.447(3).
[26] This construction is consistent with the role of the AEC as set out in the Explanatory Memorandum to the Fair Work Bill which states:
Subdivision C sets out the requirements for protected action ballots conducted by the AEC, but allows FWA to determine whether it is appropriate for the same requirements to apply to non-AEC ballot agents.
In a number of places, the Bill makes a distinction between the powers of the AEC to conduct protected action ballots as opposed to the powers of non-AEC ballot agents. For example, the AEC is able to direct employers and bargaining representatives to provide it with the information necessary to compile the roll of voters (sub-clause 452(3)) and the AEC is able to amend the roll of voters on its own initiative (sub-clause 454(5)). In contrast, a non-AEC ballot agent may only exercise such powers if it has been directed to do so by FWA.
This reflects the fact that the AEC is a Commonwealth body which is accountable to the Parliament for its activities and is subject to the legal frameworks that apply to Commonwealth agencies. Also, the AEC has the systems and procedures in place to enable it to effectively conduct protected action ballots with limited supervision by FWA.
[27] This construction is also consistent with the distinctions in the powers of Fair Work Australia to issue directions to the AEC in relation to the conduct of a ballot when compared with the powers with respect to agents other than the AEC.
[28] It is also the only practical outcome, given that the role of the AEC is not limited to conducting protected action ballots under the Act. As a Commonwealth body accountable to the parliament for its activities, the AEC is in the best position to determine the most appropriate timetable for the conduct of a protected action ballot.
[29] I am also of the view that if there was jurisdiction to grant the order sought by the applicants, there would be discretionary grounds on which I would not do so. The AEC wrote to the applicants stating its intention to close the ballots on 29 November 2011. The ballots have closed in accordance with that timetable, and pursuant to s.447(3) the time for making an application to vary the Order has passed.
[30] I uphold the jurisdictional objections. I dismiss each of the applications and order accordingly.
COMMISSIONER
Appearances:
Mr R. Reed and Mr C. Massy on behalf of the Applicants.
Mr I. Humphreys and Ms K. Winter on behalf of Energex Limited.
Mr M. Osborne on behalf of Ergon Energy Corporation Limited.
Hearing details:
2011.
Brisbane:
December 1, 2.
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