Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Wormald (a division or Tyco Australia Pty Limited)
[2011] FWA 1850
•28 MARCH 2011
[2011] FWA 1850 |
|
DECISION |
Fair Work Act 2009
s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Wormald (a division or Tyco Australia Pty Limited)
(B2011/2695)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 28 MARCH 2011 |
Summary : 184 days since protected action ballot issued – application for extension of the 30 day period for employee claim action – ordinary circumstances - circumstances where such employee claim action is affected by suspension of bargaining period – s.429 of the Act – relationship to s.459 - industrial action authorised but not notified and taken - discretion to approve a lesser period than 30 days.
[1] On Friday, 25 March 2011, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”) made application under s.459(3) of the Fair Work Act 2009 (“the Act”) seeking an extension of the of the 30 day period referred to in s.459(3) of the Act “for any or all” employee claim action that had not commenced prior to Friday, 25 March 2011 in relation to matter B2010/3370.
[2] The Australian Electoral Commission (“the AEC”) issued a Declaration of Results for the Protected Action Ballot on 22 September 2010. Following that declaration by the AEC, certain employee claim action has been undertaken pursuant to the ballot order.
[3] This, demonstrably, is an application for which the history of the matter needs to be set out. That history is as follows.
HISTORY
[4] On 14 October 2010, the employer, which was Tyco Australia Pty Ltd trading as Wormald (“Wormald”) made application under s.424 of the Act seeking the suspension or termination of the industrial action.
[5] On 21 October 2010, an order was issued by Commissioner Spencer of Fair Work Australia (“FWA”) suspending the employee claim action for six weeks. Following the expiry of the suspension period, Wormald again made an application under s.424 of the Act. That application was referred to a Full Bench of FWA, along with an appeal, it appears, against the decision of Commissioner Spencer.
[6] The further background to the application is helpfully summarised in the decision of the Full Bench in Tyco Australia Pty Limited t/as Wormald v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - Queensland Divisional Branch [2011] FWAFB 1598.
[...] Wormald and the CEPU have been engaged in negotiations for an enterprise bargaining agreement covering Service Technicians in the Brisbane, Sunshine Coast and Gold Coast regions since March 2010. In September 2010 a protected action ballot was conducted of CEPU members employed by Wormald and a majority of those members voted in favour of taking protected industrial action. On 23 September and 4 October 2010 the CEPU gave notice that its members intended to take industrial action including a ban for a period of one week on out-of-hours call outs and an indefinite ban on paperwork.
On 11 October 2010 the CEPU gave similar notice of the intention to take protected industrial action. On 14 October Wormald made an application pursuant to s.424 of the Act seeking the termination or suspension of the industrial action on the basis that the ban on call outs would threaten to endanger the life, the personal safety or health, or the welfare of part of the population. The application was heard by Commissioner Spencer who decided to suspend the protected industrial action for a period of six weeks ([2010] FWA 8050). The Commissioner considered that “on the evidence the protected industrial action increases the exposure of the Applicant’s clients to a breach of fire safety” and that the relevant legislative tests pursuant to s.424(1)(c) of the Act had been met. The Commissioner decided to suspend rather than to terminate the industrial action as she considered that the negotiations between the parties were not exhausted or seriously frustrated. An appeal was lodged by the CEPU against the Commissioner’s decision.
Following the expiry of the suspension period on 30 November 2010, the CEPU gave notice to Wormald that the workers would take protected industrial action, including a ban on out-of-hours call outs for a period of one week commencing on 10 December and an indefinite ban on paperwork. The covering letter from the CEPU stated that, “in view of the issues previously raised by your company, the CEPU has provided an extended notice period to ensure you to take the appropriate defensive measures.” On 2 December 2010, Wormald made the present application pursuant to s.424 of the Act for an order to suspend for a period of 12 weeks or to terminate the protected industrial action. The CEPU sought that the application be referred to a Full Bench and be heard together with its appeal against Commissioner Spencer’s decision. An order was made with the consent of the parties on 3 December 2010 that the protected industrial action be suspended pending the determination of the appeal and the present application. On 8 December 2010 the President directed under s.615(1) of the Act that the application be dealt with by a Full Bench 1.
[7] I note that the Full Bench refers to an order having been made by consent of the parties on 3 December 2010 “that the protected industrial action be suspended pending the determination of the appeal and the present application”. That order, which was made by Commissioner Spencer (and not the Full Bench), reads as follows:
Further to the Order made on 19 October 2010 (PR502821) in matter number B2010/3520, I hereby order (with the consent of the parties) that the protected industrial action for a proposed enterprise agreement between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Tyco Australia Pty Limited trading as Wormald, being the industrial action that was authorised by a protected action ballot declared on 22 September 2010, be suspended pending the hearing and determination of matters C2010/5456 and B2010/3668 2.
[8] The Full Bench decision in relation to the s.424 application as referred to above was published on 24 March 2011. The Full Bench dismissed Wormald’s application under s.424 of the Act in the following terms:
In any event, we note that Wormald’s call out services are provided in response to requests or notifications by clients. Where Wormald or another provider is not able to respond in a timely fashion, the building owner or occupier concerned will need to put into place their own contingency plans in order to minimise any potential risks associated with defective fire safety or prevention equipment.
It follows that we are not persuaded that the consequences of the protected industrial action would be of such significance as to meet the requirements of s.424 of the Act. In particular, we do not accept that Wormald cannot put into place arrangements that will assist in minimising the risks associated with the bans. Further, we do not consider that the ban on paperwork and the manner in which it has been applied, would mean that the ban would have any impact as to invoke the operation of s.424.
In so deciding, we recognise that there is a legitimate concern in any matter which involves the proper operation and maintenance of fire safety equipment about the need to ensure a high level of protection for the public against hazards of fire. However this does not mean that any disruption to services like those provided by Wormald will be of such significance to warrant orders being made under s.424 of the Act. In the present matter, we consider that many of the submissions made by Wormald regarding the impact of the protected industrial action are exaggerated and that there are a range of effective measures which can and will be taken by Wormald and its customers to minimise any associated risks.
Given the nature of the bans, their likely impact and the availability of measures to ensure the safety and welfare of the community, and in particular the people using the buildings or premises owned or occupied by Wormald’s clients, we are not satisfied that any order should be made pursuant to s.424(1) of the Act. Accordingly, the application is dismissed 3.
[9] In light of the history of this matter as set out above, some 184 days have passed since the ballot was declared by the AEC and some 156 of these days have been days during which orders suspending the industrial action have been in place. That is, there have been some 28 days available during which the CEPU has been able to pursue protected industrial action.
CURRENT APPLICATION
[10] The current application by the CEPU, as I set out above, is to extend the 30 day period for protected industrial action at s.459(1)(d) of the Act for a further 30 days as provided for at s.459(3) of the Act. The relevant statutory provisions are set out below.
Subdivision D—Effect of protected action ballot
459 Circumstances in which industrial action is authorised by protected action ballot
(1) Industrial action by employees is authorised by a protected action ballot if:
(a) the action was the subject of the ballot; and
[...]
(d) the action commences:
(i) during the 30-day period starting on the date of the declaration of the results of the ballot; or
(ii) if FWA has extended that period under subsection (3)—during the extended period.
[...]
(3) FWA may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:
(a) an applicant for the protected action ballot order applies to FWA for the period to be extended; and
(b) the period has not previously been extended.
[11] In this case, the CEPU has not had an opportunity to pursue all the industrial action or employee claim action approved in the ballot order during the 30 day period and now seeks that FWA extend the period by a further 30 days.
[12] Ordinarily, it might appear that approval of a further period well after the expiry of the first 30 day period might amount, in effect, to an order for a further protected action ballot without the statutory requirements at Sub division B, Division 3 of Part 3-3 of the Act being given effect.
[13] But different circumstances apply where the industrial action has not been taken because it was suspended by an order of FWA. The Act relevantly reads in this regard as follows:
429 Employee claim action without a further protected action ballot after a period of suspension etc.
Application of this section
(1) This section applies in relation to employee claim action for a proposed enterprise agreement if:
(a) an order suspending the employee claim action has been made; and
(b) a protected action ballot authorised the employee claim action:
(i) some or all of which had not been taken before the beginning of the period (the suspension period) of suspension specified in the order; or
(ii) which had not ended before the beginning of the suspension period; or
(iii) beyond the suspension period; and
(c) the suspension period (including any extension under section 428) ends, or the order is revoked before the end of that period.
Further protected action ballot not required to engage in employee claim action
(2) A person may engage in the employee claim action without another protected action ballot.
(3) For the purposes of working out when the employee claim action may be engaged in, the suspension period (including any dates authorised by the protected action ballot as dates on which employee claim action is to be engaged in) must be disregarded.
(4) Nothing in this section authorises employee claim action that is different in type or duration from the employee claim action that was authorised by the protected action ballot.
[14] It appears to me that s.429 has the effect of re-enabling the scope for employee claim action as provided for in a protected action ballot order by disregarding the period(s) during which such claim action was suspended (and any dates authorised in the ballot as being days on which employee claim action is to be engaged in – which is not a relevant consideration for current purposes).
[15] Consistent with s.429 of the Act, therefore, it is reasonable in my view to give consideration to an application, under s.459(3) of the Act, for FWA to extend the period of industrial action authorised in the protected action ballot by 30 days in relation to that industrial action which, while having been approved, has not been acted upon within the 30 day period since the AEC declared the protected action ballot. That is, it does not appear to me that s.429 of the Act puts aside the 30 day requirement of s.459(1)(d) of the Act, nor the basis on which that period can be extended for a further 30 days under s.459(3) of the Act; it only has the effect of removing the period of time the authorised industrial action was suspended from consideration of the otherwise relevant periods of time.
[16] The CEPU makes clear in its application that a sub set of the industrial action authorised in the protected action ballot has already been acted upon (that is, has been notified and taken) before following the declaration on 22 September 2010. The CEPU therefore seeks an extension of time for the action which is authorised by the protected action ballot but not notified and taken in the 30 days following the ballot declaration (putting aside the periods during which employee claim action was suspended).
[17] It is evident from the above that the requirements of s.459(3)(a) and s.459(3)(b) have been met. That is, the CEPU has made an application of the requisite type and the period has not been previously extended.
[18] There appear to me to be no matters disclosed in the history of this matter that would cause me not to exercise my discretion under s.459(3) of the Act in favour of the CEPU’s application. Nor is there any circumstance in this matter (noting the period for which employee claim action has been under suspension and the grounds on which the Full Bench has dismissed the application) that would cause me not to extend the 30 day period as sought and instead provide for an extension for a shorter period (for which s.459 of the Act appears to make allowance).
[19] I therefore order that there the 30 day period referred to in s.459(1)(d) of the Act be extended for a further 30 days in accordance with s.459(3) of the Act. An order to this effect will issue along with this decision.
SENIOR DEPUTY PRESIDENT
1 [2011] FWAFB 1598 PNS 3 - 5
2 PR504669
3 [2011] FWAFB 1598 PNS 30-33
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