Construction, Forestry, Maritime, Mining and Energy Union v BHP Coal Pty Ltd T/A BHP Mitsubishi Alliance (BMA)
[2022] FWC 2624
•28 SEPTEMBER 2022
[2022] FWC 2624
The attached document replaces the document previously issued with the above code on 28 September 2022.
Inserting missing paragraph numbers
Amending endnote 4 and 5
Associate to Deputy President Asbury
Dated 29 September 2022
| [2022] FWC 2624 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437—Protected action
Construction, Forestry, Maritime, Mining and Energy Union
v
BHP Coal Pty Ltd T/A BHP Mitsubishi Alliance (BMA)
(B2022/1418)
| DEPUTY PRESIDENT ASBURY | BRISBANE, 28 SEPTEMBER 2022 |
Proposed protected action ballot by employees of BHP Coal Pty Ltd
Background
The Construction, Forestry, Maritime, Mining and Energy Union (Mining and Energy Division) (the Applicant) has made an application to the Fair Work Commission (the Commission) under s.437 of the Fair Work Act 2009 (Cth) (the Act) for a Protected Action Ballot Order (the Order) in relation to a group of employees of BHP Coal Pty Ltd (the Respondent).
In response to correspondence from the Commission seeking the view of the Respondent in relation to whether it consented or objected to the Order sought by the Applicant, the Respondent did not consent to the Order and provided submissions outlining its position. Several amendments to the Order were proposed by the Respondent.
The Applicant advised the Commission on 27 September 2022 that the Applicant had accepted most of the proposed amendments and the terms of the draft Order were amended accordingly. The Applicant, however, did not accept the Respondent’s submissions that Ballot Questions 1, 3, 4, 5 and 6 are insufficiently clear to enable employees to make an informed choice when casting a vote. The Applicant is of the view that the questions are formulated with sufficient clarity to enable employees to understand the choice they are asked to make with respect to the action and does not intend to amend the questions as pressed by the Respondent.
Given that the Applicant does not agree with the Respondent’s position with respect to the ballot questions, I sought the views of the parties as to whether the parties sought a hearing to ventilate the issues. Through correspondence, the Respondent confirms that while it seeks to press its submissions in relation to the ballot questions, it does not wish to be heard further. The Respondent does not object to the Commission making a determination on the basis of the material and submissions provided by the parties without a hearing. On that basis, I have determined the matter on the papers.
Ballot questions
The questions in dispute are set out as follows:
“In support of reaching an Enterprise Agreement with BHP Coal Pty Ltd do you endorse the taking of any and all protected industrial action against your employer which is authorised by this ballot, separately concurrently and/or consecutively in the form of:
QUESTION 1
An unlimited number of stoppages of work, of between one (1) and six (6) hours in duration?Yes [ ] No [ ]
…
QUESTION 3
An unlimited number of bans on the working of non-rostered overtime?Yes [ ] No [ ]
QUESTION 4
An unlimited number of bans on the performance training and assessing duties of coal mining workers?Yes [ ] No [ ]
QUESTION 5
An unlimited number of bans on the performance of hot-seating during shift changeovers?Yes [ ] No [ ]
QUESTION 6
An unlimited number of bans on the performance of step-up supervisor duties?Yes [ ] No [ ]”
The Respondent’s position
The Respondent submits that a ballot question must be clear enough for the employee to be able to make an informed choice as to whether to vote in favour of the industrial action and for the Employer to understand what action is authorised by the ballot and to determine whether action subsequently notified is protected. In support of its submissions, the Respondent cited the following passage from a decision of the Australian Industrial Relations Commission in Re Country Fire Authority,[1] a decision concerning the requirements for the making of a Protected Action Ballot Order under the Workplace Relations Act 1996:
“[31] In determining whether to engage in protected action it is reasonable to expect, and in our view a requirement of the Act, that the nature of the proposed industrial action is specified. In our view, this requires employees who will be voting on the questions to understand what work would not be undertaken and what work would remain to be done. The description of the nature of the industrial action in the questions they are asked in the ballot should enable employees to understand the implications for them while at work, and other relevant circumstances.”
With respect to Question 1, the Respondent contends that the Question is unclear and ambiguous and does not allow employees to make an informed choice about the action they intend to authorise as the timeframe for the taking the action is unclear. The Respondent stated that the Question would allow at least 300 different periods of protected action and as such, the question should be removed or changed to particularise the periods of authorised stoppage.
With respect to Question 3, 4, 5 and 6, the Respondent contends that the references to “unlimited number of bans” in those questions do not specify the proposed duration of the bans and employees would not be able to understand the nature of the action to make an informed choice in relation to the action. The Respondent contends that the Questions should be removed or amended. With respect to Question 4, the Respondent raises a further contention that the Question fails to specify the subject of the ban or the action it seeks to authorise.
The Applicant’s position
The Applicant submits that the Respondent’s contentions should not be accepted. In the Applicant’s view, s. 437 of the Act merely requires that an application for a Protected Action Ballot Order specifies the question or questions to be put to the employees who are balloted including the nature of the proposed industrial action. The Applicant contends that the Questions as formulated provides sufficient details for employees to be able to respond to the question and understand what work would or would not be undertaken should the industrial action be undertaken. In support of its position, the Applicant refers to the following passage in a decision by a Full Bench of the Commission in John Holland Pty Ltd v Australian Manufacturing Workers Union[2]:
“[19] Moving now to the construction of s.437 itself, seen in its statutory context, all that the section requires is that the questions should describe the industrial action in such a way that employees are capable of responding to them. If the questions are ambiguous or lack clarity there may be consequences for the bargaining representative and the employees if reliance is placed on the result of the ballot in taking industrial action. If the question or questions give rise to ambiguity, the conclusion may be reached that the industrial action specified in a notice under s.414 was not authorised by the ballot and that the action is not protected for the purposes of s.409(2). It is true that ambiguity or lack of clarity in the description of the industrial action is undesirable, but these are matters more appropriate for consideration under other provisions. It follows that in most cases the drafting of the questions will be a matter for the applicant.”[3]
With respect to Question 1, the Applicant submits the Question is sufficiently clear such that employees can understand that they are being asked to approve stoppage that may range from 1 hour to 6 hours in duration. The exact time of each stoppage, the Applicant submits, would be contained in the relevant notice of industrial action.
With respect to Questions 3, 4, 5 and 6, the Applicant says that these bans contain sufficient information for employees to understand the particular tasks that would not be performed if these bans are approved. The duration of each ban when it is taken does not affect this and is again a matter for the notice of industrial action. The Applicant also notes that the wording of these bans is consistent with the wording in other Protected Action Ballot Order made by the Commission.
With respect to the additional contention around Question 4, the Applicant submits that the term “training and assessing duties” is a common and well understood term amongst the Respondent’s employees. It is also submitted that the role of “trainer / assessor” is a specific competency that employees may achieve and once the competency is achieved, these employees are required to train any other person at the mine as directed by the Respondent in accordance with clause 6.1(b) of the BMA Enterprise Agreement 2018.
Consideration
I do not accept the Respondent’s submissions that the Questions are unclear or ambiguous such that employees are unable to make an informed choice. In this regard, a Full Bench of the Commission in John Holland Pty Ltd v AMWU & AWU[4] considered provisions of the Act including s. 414, which deals with notice requirements for industrial action, and s. 459 which deals with when industrial action is authorised by a protected action ballot, and is thereby protected, and went on to state:
“[19] Moving now to the construction of s.437 itself, seen in its statutory context, all that the section requires is that the questions should describe the industrial action in such a way that employees are capable of responding to them. If the questions are ambiguous or lack clarity there may be consequences for the bargaining representative and the employees if reliance is placed on the result of the ballot in taking industrial action. If the question or questions give rise to ambiguity, the conclusion may be reached that the industrial action specified in a notice under s.414 was not authorised by the ballot and that the action is not protected for the purposes of s.409(2). It is true that ambiguity or lack of clarity in the description of the industrial action is undesirable, but these are matters more appropriate for consideration under other provisions. It follows that in most cases the drafting of the questions will be a matter for the applicant.”
Similarly, In Total Marine Services Pty Ltd v Maritime Union of Australia,[5] a Full Bench of the Commission was asked to consider whether a ballot question framed as an “unlimited” number of stoppages of work of various durations was unclear, ambiguous and had the effect that employees would not be able to make an informed choice as they would not have understood the nature of the industrial action proposed. The Full Bench concluded that those questions as framed were not unclear or ambiguous and that:
“The precise length of any action will be determined subsequently by the bargaining agent who organises the action and the members of the union who choose to participate. It is inevitable that the precise timing and length of the action is not determined at the stage of authorisation. But in voting to authorise the action the employees would have no doubt of the outer limits of the action involved. In our view the requirements for an application are satisfied.”[6]
Having regard to these authorities, I am satisfied that employees voting whether to authorise the action described in question 1 would have no doubt that they are authorising an unlimited number of stoppages of work with a minimum of 1 hour and a maximum of 6 hours duration. Similarly, with respect to question 3, 4, 5 and 6, the use of the term “unlimited” does not, in the context of those questions, render them unclear or ambiguous. In relation to question 3, which would if accepted, authorise unlimited bans on the working of non-rostered overtime, by its nature, the duration of such work will likely not be known until employees are requested to work, and such a ban would be imposed by reference to a period in which it will operate, which would be notified to the employer at the time the employees decided to impose the ban.
The use of the term “unlimited” in the context of the other questions is also sufficiently certain for employees to understand the action they are authorising. Employees who are qualified as trainer assessors or acting as step-up supervisors, know that they may be asked to undertake such duties and the question does no more than authorise an unlimited number of bans on the performance of such duties. Likewise, hot seating occurs during shift changeovers which are in accordance with employees’ rosters. The number of occasions on which action will be taken in a given period is not required to be specified and the duration and timing of each occasion will be determined at the time it is notified. If the Respondent contends that the action as notified is not authorised by a ballot it may make an application at the relevant time.
Protected Action Ballot Order
On the basis of the material before me, including the statutory declaration of Stephen Smyth for the Applicant declared on 19 September 2022, setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s. 443(1) of the Act have been met.
The Applicant has specified in the application for a protected action ballot order that it wishes a person other than the Australian Electoral Commission to be the protected action ballot agent and has specified Democratic Outcomes Pty Ltd (CiVS) for this purpose. A statutory declaration has been made by Mr Michael M. Michael, the Managing Director of Democratic Outcomes Pty Ltd (CiVS), the individual who will carry out the functions of the protected action ballot agent.
Based on the statutory declaration made by Mr Michael, I am satisfied as required by s. 444(1)(b)(i) that Mr Michael is a fit and proper person to conduct the ballot. I am also satisfied, based on the statutory declaration, that as provided in s. 444(1)(b)(ii) of the Act, the requirements in Regulation 3.11 of the Fair Work Regulations 2009 have been met.
An Order has been separately issued in PR746319.
DEPUTY PRESIDENT
[1] [2006] AIRC 563, 158 IR 120, 58 AILR 100-538, [2007] ALMD 2584.
[2] [2010] FWAFB 526, 194 IR 239.
[3] Ibid at [19].
[4] [2010] FWAFB 526.
[5] [2009] FWAFB 368.
[6] Ibid at [39].
Printed by authority of the Commonwealth Government Printer
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