Construction, Forestry, Mining and Energy Union

[2013] FWC 2994

[2013] FWC 2994

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Construction, Forestry, Mining and Energy Union
(B2013/800)

COMMISSIONER LEWIN MELBOURNE, 14 MAY 2013

Proposed protected action ballot by employees of EnergyAustralia Yallourn Pty Ltd.

Introduction

[1] On Tuesday, 23 April 2013 the Construction, Forestry, Mining and Energy Union (CFMEU) made an Application for a protected action ballot order under s.437 of the Fair Work Act 2009, (the Act), in respect of employees of EnergyAustralia Yallourn Pty Ltd (EnergyAustralia).

[2] The Application was heard on Wednesday, 24 April 2013 and on Thursday, 25 April 2013. At the hearing issues concerning the appropriateness of the questions sought to be put to employees as part of the Order proposed in the Application were addressed.

[3] After hearing evidence and submissions in relation to the Application and the terms of the Order which might be made on the Application, I decided to make an Order. 1 That Order2 was published on Thursday, 25 April 2013.

[4] Reasons for the Decision 3 to make the Order were published on Monday, 13 May 2013.

[5] The oreder required that the AEC would be the ballot agent for the conduct of the ballot.

The Ballot

[6] On Friday, 10 May 2013, prior to the closing of the ballot on Wednesday, 15 May 2013, the Australian Electoral Commission (the AEC) advised that an error had been made in the text of QUESTION 5 and QUESTION 6 as determined should be put to the employees of EnergyAustralia by the Commission on 25 April 2013.

[7] Questions 5 and Question 6 of the Notice and Ballot Papers issued by the AEC pursuant to the Order ask employees to approve the following action:

QUESTION FIVE:

For an unlimited number of periods of one or more hours duration commencing on or after 5am and finishing on or before midnight on any day, on the operation of one or more of the generators at Yallourn Power Station to generate no more than 350 megawatts of power output per generator in co-ordinated control mode?

QUESTION SIX

For an unlimited number of periods of one or more hours duration commencing on or after 5am and finishing on or before midnight on any day, operating one or more of the generators at Yallourn Power Station to generate no less than 350 megawatts of power output per generator in co-ordinated control mode?

[8] The terms of the protected action ballot order require the following questions to be put to employees for the purpose of the ballot:

QUESTION FIVE

The imposition of an unlimited number of bans of one or more hours duration commencing on or after midnight and finishing on or before 5am on any day, on the operation of one or more of the generators at Yallourn Power Station to generate less than 350 megawatts of power output per generator?

QUESTION SIX

For an unlimited number of periods of one or more hours duration commencing on or after midnight and finishing on or before 5.00 am on any day, operating one or more of the generators at Yallourn Power Station to generate no less than 350 megawatts of power output per generator in co-ordinated control mode?

Variation of protected action ballot order.

[9] On Friday, 10 May 2013 the CFMEU made a further Application to vary the protected action ballot order, 4 to extend the time for the conduct of the ballot, under s.447 of the act which is as follows:

447 Variation of protected action ballot order

(1) An applicant for a protected action ballot order may apply to the FWC to vary the order.

(2) The protected action ballot agent for a protected action ballot may apply to the FWC to vary the protected action ballot order to change the date by which voting in the ballot closes.

(3) An application may be made under subsection (1) or (2):

(a) at any time before the date by which voting in the protected action ballot closes; or

(b) if the ballot has not been held before that date and the FWC consents—after that time.

(4) If an application is made under subsection (1) or (2), the FWC may vary the protected action ballot order.

[10] Submissions were received from both the CFMEU and EnergyAustralia in relation to the variation of the protected action ballot order on Friday, 10 May 2013.

[11] Energy Australia submitted the following:

‘The members of the CFMEU who are subject to the protected action ballot order are currently also asked to vote in a ballot organised by Energy Australia to seek approval for a proposed enterprise agreement. Voting for this ballot closes on 22 May, but it is a postal ballot and ballot papers need to be posted by 16 May in order meet postal delivery times. If the protected action ballot is to now be repeated because of the errors in the questions employees will have been presented with three separate ballots at coincident times. This can reasonably be expected to create some confusion for the relevant employees.

We submit that if the second protected action ballot is to be properly understood by the employees the order extending the time for the conduct of the ballot should include a statement by the Commissioner explaining to the employees why the second ballot has been required and clarifying the effect of the first ballot. The AEC should be required to include that explanation on the notices required to be displayed at the workplace in accordance with the Regulations. The time provided for the second ballot should be sufficient for employees to properly consider what has transpired and what the effect of the changes to the ballot questions means. In this respect we draw to the Commissioner's attention that the employees who will vote in the ballot are rotating shift workers for whom the gap between shifts rotations is as much as 6 clear days. If the notices are to achieve the purpose for which they are intended we submit that the prudent approach would be to allow more time than is now available to enable the ballot process to conclude by 24 May.

In the present unfortunate circumstances we submit that the Commission should err on the side of making sure the second ballot has adequate time to be completed properly, rather than holding to a timeline with no other justification other than industrial expediency.’

[12] In response to submissions made by EnergyAustralia, the CFMEU submitted the following;

‘The CFMEU submits that the variation to the Order proposed will allow for sufficient time for the vote to be concluded fairly. Secondly, the CFMEU members will be sufficiently informed as to how to vote and will not be confused by the ballot organised by the company. Thirdly, the CFMEU does not object to the Commission issuing a Statement if it feels necessary clarifying what has occurred. Finally, the suggestion of industrial expediency is unwarranted and has no part to play in the Commission's consideration of the Application to Vary.’

[13] Both parties agreed to have the matter heard on the papers.

Consideration

[14] It is clear that the Order issued on 25 April 2013 will not be complied with in accordance with its terms and should be varied to enable the relevant employees to participate in a ballot on the questions which the Commission determined should be put to them.

[15] The purpose of the Application for a protected action ballot is to enable employees to consider proposals for industrial action to be taken with immunity from legal action, known as protected industrial action.

[16] When considering the Application for variation of the Order made on 25 April 2013 the efficacy of the procedures for a ballot conducted pursuant to that order, in light of the erroneous attempt by the ballot agent to affect the order must be taken into account. In my view, it is appropriate to ensure a longer period for the conduct of the ballot than was originally determined so as to allow the employees sufficient time to obtain clarity as to the questions which are to be voted upon and to record their votes with due consideration and distinction of the failed attempt at the ballot and a ballot conducted properly in accordance with the order.

Decision

I have decided to allow until Wednesday, 4 June 2013 for the conduct of the ballot and a variation order will be issued accordingly.

COMMISSIONER

 1   Transcript PN 321.

 2   PR536027

 3   [2013] FWC 2748.

 4 F53.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR536606>