Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Tyco Australia Pty Ltd T/A Wormald
[2009] FWA 83
•13 AUGUST 2009
[2009] FWA 83 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
v
Tyco Australia Pty Ltd T/A Wormald
(B2009/10429)
SENIOR DEPUTY PRESIDENT O'CALLAGHAN | ADELAIDE, 13 AUGUST 2009 |
Proposed protected action ballot by employees of Tyco Australia Pty Ltd.
[1] On 6 August 2009 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made an application pursuant to section 437 of the Fair Work Act 2009 (the Act), through which it sought a protected action ballot by its members who work under the Wormald - South Australia Sprinkler Fitters Union Collective Agreement 2006-2007.
[2] On 7 August 2009 I issued advice to the parties by way of a Notice of Listing that the application was to be the subject of a hearing on 11 August 2009. This advice made clear the obligation on the CEPU to provide email advice to Fair Work Australia (FWA) confirming that a copy of the application had been served on the employer.
[3] I note that the employer is Tyco Australia Pty Ltd trading as Wormald South Australia (Wormald).
[4] At the hearing on 11 August 2009 Mr Buchanan appeared for the CEPU while Mr Shariff of counsel represented Wormald.
[5] The application was made pursuant to section 437 of the Act. Section 443 relevantly states:
“(1) FWA must make a protected action ballot order in relation to a proposed enterprise agreement if:
(a) an application has been made under section 437; and
(b) FWA is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
(2) FWA must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).
(3) A protected action ballot order must specify the following:
(a) the name of each applicant for the order;
(b) the group or groups of employees who are to be balloted;
(c) the date by which voting in the protected action ballot closes;
(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.”
[6] Whilst Mr Buchanan presented no evidence in support of the application, he asserted that the CEPU had been involved in six meetings with Wormald over a new collective agreement, but that outstanding issues included employment security, hourly rates, parking fees, inclement weather and delegate’s rights. Mr Buchanan advised that the agreement applicable to these employees had passed its nominal expiry date and that the CEPU was not pursuing any items of an unlawful nature. Finally, Mr Buchanan advised that the CEPU was genuinely trying to reach an agreement with Wormald.
[7] The Wormald position was that it opposed the making of a protected action ballot order. Wormald asserted that the CEPU had not met the onus on it to satisfy Fair Work Australia that it had been, and was genuinely trying to reach an agreement with Wormald. Wormald conceded that subsection 443(1)(a) had been complied with, but argued that the CEPU had described the agreement it sought on the basis of wage rates specified in agreements applicable to three other direct competitors to Wormald, and had advised that this issue was not negotiable. Wormald did acknowledge that it applied a 38 hour week whereas these other agreements applied a 36 hour week.
[8] Further, Wormald argued that aspects of the agreement claimed by the CEPU had been identified by the Department of Education, Employment and Workplace Relations on 6 August 2009 as not compliant with the National Code of Practice for the Construction Industry such that an agreement of this character would deprive Wormald of the capacity to undertake any government work.
[9] Finally, Wormald asserted that the CEPU had consistently refused to avail itself of invitations to examine its financial records such that the union could not be said to be prepared to consider the Wormald position.
[10] In the course of the hearing I expressed a reservation about the extent to which Mr Buchanan had not presented any evidence. The hearing was adjourned to allow him to consider his position. Mr Buchanan indicated that he wished to proceed on the material before Fair Work Australia. It was only at the conclusion of the hearing that Mr Buchanan referred to a witness statement which he advised had recently been e-mailed to Fair Work Australia and sent to Wormald. Wormald advised that it had not received the statement and my office has similarly not received it. Mr Buchanan did not seek to further rely on this statement.
[11] The application was not accompanied by any material upon which I could rely to satisfy myself that the requirements of section 443 had been met. As a consequence, I have considered the application on the basis of the very limited material before me.
[12] The prerequisite requirements of the making of a protected action ballot have been substantially simplified by the Act. The fundamental requirement is that Fair Work Australia must be satisfied that the CEPU is genuinely trying to negotiate an agreement.
[13] It may well be the case in that the CEPU may not be pursuing unlawful content. Further, the CEPU may not be pursuing pattern bargaining and even if this was the case, these claims may not be exclusive of its actions being consistent with it genuinely trying to reach an agreement. Further, the bargaining process may still be characterised by a genuine attempt to reach agreement even though the CEPU has declined to look at Wormald’s financial position. However, the onus must be on the CEPU to establish that this is the case. This onus has not been met. There is simply no evidence about the claims being made, the effect of those claims and the bargaining process.
[14] Somewhat ironically, the requirement that an applicant union satisfy the Australian Industrial Relations Commission that it is genuinely trying to reach agreement where doubts in this respect has been raised, was considered by a Full Bench of the Commission in Tyco Australia Pty Ltd trading as Wormald v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 1 in the following terms:
“[20] There is no doubt that the provisions dealing with the negotiation and making of workplace agreements outlaw prohibited content. In that respect the construction of the legislation urged on us by Wormald and the Commonwealth is clearly correct. It may be accepted that a union which makes prohibited content a part of its claims cannot be said to be genuinely trying to reach agreement. That is because agreement in this context must mean a workplace agreement under the Act, as explained by Senior Deputy President Acton in Kempe Engineering Services. 7 Of course it is not always easy to say whether claims involve prohibited content. Whether it can be said that a union is advancing such claims depends upon the evidence as to the nature of the claims and the union’s statements and conduct. Leaving aside cases in which it is clear on any reasonable view that claims being advanced involve prohibited content, it is conceivable that a party may be “genuinely trying” to reach an agreement under the Act even though, as a matter of ultimate conclusion, the claims it is advancing do contain prohibited content. In cases where doubt exists it is open to a union to make it clear that it is not pursuing claims containing prohibited content and, given that industrial action to advance such claims is not protected action, it might be prudent to do so.”
[15] While the legislative provisions under the Act are substantially different from those that applied to that decision, the requirement that a case be established remains.
[16] The granting of a protected action ballot order is not an automatic consequence of an application to this effect. Section 443(1)(b) requires that Fair Work Australia must be satisfied that the applicant is trying to reach agreement with the employer. In this case the applicant, being the CEPU has not satisfied me that it has been and is trying to reach genuine agreement. Section 443(2) prohibits Fair Work Australia from making a protected action ballot order except in accordance with the circumstances in subsection (1).
[17] In the absence of this satisfaction, the application must be refused. An Order [PR988476] to this effect will be issued.
[18] There is absolutely no impediment to the CEPU making another such application but I strongly suggest that any such application should be supported by evidence which confirms the CEPU position that the necessary requirements have been met.
SENIOR DEPUTY PRESIDENT
Appearances:
D Buchanan for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.
Y Shariff counsel for Tyco Australia Pty Ltd t/as Wormald SA
Hearing details:
2009.
Adelaide:
August 11.
1 PR974317
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<Price code A, PR988475>
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