Construction, Forestry, Mining and Energy Union v Freyssinet Australia Pty Ltd

[2011] FWA 5829

[2011] FWA 5829

FAIR WORK AUSTRALIA

DECISION

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

Construction, Forestry, Mining and Energy Union
v
Freyssinet Australia Pty Ltd
(B2011/3312)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 2 SEPTEMBER 2011

Summary: can a protected action ballot order obligate the AEC to use a prescribed ballot method?

[1] This matter concerned an application by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) seeking a protected action ballot order under s.437 of the Fair Work Act 2009 (“the Act”).

[2] The employer was Freyssinet Australia Pty Ltd (which was represented by the Master Builders Association (Qld) (“the MBA”).

[3] In the course of the hearing of the matter, the CFMEU sought that I include in the order, should it be made, a term obliging the Australian Electoral Commission (“the AEC”)(as the ballot agent) to conduct the protected action ballot by attendance vote. The reason for this was that postal ballots can be ineffective in practical terms for purposes of ascertaining employees’ views.

[4] The MBA submitted for its purposes that the tribunal should make an order for a postal ballot.

[5] The MBA contended that as the employees to be balloted work across a range of geographically dispersed sites, employees would be inconvenienced, for various reasons, by having to assemble in their own time at a single point which may be at large distances from their place of residence (and their actual place of work).

[6] The merits of this contested matter are not important for the moment, though I should add that the CFMEU made the point that the tribunal system was best placed to determine competing views of the parties about such matters rather than the AEC’s administrative process. What is of threshold importance is whether Fair Work Australia (“FWA”) has the jurisdiction to make an order in such terms which would be binding upon the AEC.

[7] I note that the following the hearing of this application, the CFMEU indicated that it did not for the time seek to press its request for an attendance ballot.

[8] But the issue remains alive, particularly in respect of the MBA’s submission, and further, there is a prospect that it will again be agitated, as it has at an earlier time. For these reasons, I will provide some provisional commentary on the jurisdiction of FWA to make an order that the AEC as the ballot agent use a particular voting method in relation to a protected action ballot.

[9] At the outset, it appears that FWA has a power to give directions to the AEC or another specified ballot agent about various matters. This jurisdiction is set out in s.449(2)(d) of the Act:

449 Protected action ballot to be conducted by Australian Electoral Commission or other specified ballot agent

(1) A protected action ballot must be conducted by:

(a) if a person is specified in the protected action ballot order as the protected action ballot agent for the ballot—that person; or

(b) otherwise—the Australian Electoral Commission.

(2) The protected action ballot agent must conduct the protected action ballot in accordance with the following:

(a) the protected action ballot order;

(b) the timetable for the ballot;

(c) this Subdivision;

(d) any directions given by FWA;

(e) any procedures prescribed by the regulations [my emphasis].

[10] But does the power to give a direction to the AEC, in this case, extend to a determination of the method of conducting the protected action ballot?

[11] Section 450 of the Act reads relevantly as follows:

450 Directions for conduct of protected action ballot

(1) This section applies if the protected action ballot agent is not the Australian Electoral Commission.

(2) FWA must give the protected action ballot agent written directions in relation to the following matters relating to the protected action ballot:

(a) the development of a timetable;

(b) the voting method, or methods, to be used;

(c) the compilation of the roll of voters;

(d) the addition of names to, or removal of names from, the roll of voters;

(e) any other matter in relation to the conduct of the ballot that FWA considers appropriate.

Note: A protected action ballot agent must not contravene a term of a direction given

[...] [my emphasis].

[12] In respect of a protected action ballot agent who is not the AEC, FWA has jurisdiction to determine the voting method(s) to be used.

[13] Section 451 of the Act reads as follows:

451 Timetable for protected action ballot

(1) This section applies if:

(a) the protected action ballot agent is the Australian Electoral Commission; or

(b) FWA has directed the protected action ballot agent to comply with this section.

Note: If this section does not apply, the protected action ballot agent must comply with directions given by FWA in relation to the matters dealt with by this section (see section 450).

(2) As soon as practicable after receiving a copy of the protected action ballot order, the protected action ballot agent must, in consultation with each applicant for the order and the employer of the employees who are to be balloted:

(a) develop a timetable for the conduct of the protected action ballot; and

(b) determine the voting method, or methods, to be used for the ballot. [My emphasis]

[14] Section 451 of the Act preserves for the AEC (and any other protected action ballot agent so directed by FWA, notwithstanding s.450(2)(b) of the Act) to determine the voting method(s) to be used for the protected action ballot.

[15] It appears to me that the general jurisdiction provided to FWA to give directions to the AEC is a reference to the kinds of matters referred to across Sub Division C of Division 8 of Part 3-3 of the Act, and about which FWA might direct the AEC.

[16] I very much doubt that the general power to make directions set out in s.449(2)(d) of the Act is intended to override the particular jurisdiction prescribed for the AEC in s.451(2)(b) of the Act.

[17] I add also that the previous legislation (the Workplace Relations Act 1996 (“the WRA”)) expressly vested power in the Commission (as it then was) to order the voting method for a protected action ballot.

[18] Section 462 of the WRA read as follows:

462 Grant of application—order for ballot to be held

If the Commission grants the application, the Commission must order the applicant to hold a protected action ballot.

[19] Section 463 of the WRA relevantly read as follows:

463 Matters to be included in order

(1) An order for a protected action ballot to be held must specify the following:

(a) the name of:

(i) if the applicant is an organisation of employees—the organisation; or

(ii) if the applicant is an employee, or a group of employees, represented by an applicant’s agent—the applicant’s agent; or

(iii) if the applicant is an employee, or a group of employees, not represented by an applicant’s agent—the employee or employees;

(b) the types of employees who are to be balloted;

(c) the voting method;

(d) the timetable for the ballot, including:

(i) the day on which the roll of voters is to close, which must be a day at least 2 working days before the day on which the ballot is to be held, or is to start to be held; and

(ii) the day on which the ballot is to close, and the time (the voting closing time) on that day by which votes must be received (if the order specifies a postal ballot) or by which votes must be cast (if the order specifies an attendance ballot);

(e) the name of the person authorised by the Commission to conduct the ballot;

(f) the name of the person (if any) authorised by the Commission to be the independent adviser for the ballot;

(g) the question or questions to be put to the relevant employees in the ballot, including the nature of the proposed industrial action.

Note 1: Section 480 specifies who may be authorised by the Commission to conduct protected action ballots.

Note 2: Section 481 specifies who may be authorised by the Commission to be the independent adviser for a protected action ballot.

(2) The order must specify a postal ballot as the voting method unless:

(a) the order specifies another voting method; and

(b) the Commission is satisfied that the other voting method is more efficient and expeditious than a postal ballot.

(3) If the order specifies a postal ballot as the voting method, it must specify that the voting must take place by way of declaration voting. For this purpose, a person votes by way of declaration voting if the person:

(a) marks his or her vote on a ballot paper; and

(b) places the ballot paper in a declaration envelope; and

(c) seals that envelope and signs his or her name in the space provided on the back flap of that envelope; and

(d) places that envelope in an outer envelope that is addressed to the authorised ballot agent; and

(e) posts the outer envelope so that it reaches the authorised ballot agent before the voting closing time on the day on which the ballot is to close.

(4) If the order specifies an attendance ballot as the voting method, then:

(a) votes must be cast before the voting closing time on the day on which the ballot is to close; and

(b) subject to paragraph (a):

(i) the order must specify that the voting must take place during the voters’ meal-time or other breaks, or outside their hours of employment; and

(ii) the order may also specify other rules about the times when voters may vote. [my emphasis]

[20] The words of s.463 the WRA conferred on the Commission power to make an order for a particular voting method. Those words, and Parliament’s intention to confer such a power on the tribunal, are not evident in the Act. In such circumstances, to read the current Act as conferring a power to order a voting method might be to set at nought the clear intention of the Parliament:

The fact that there is a difference in the language used in s.170CE(8) as compared to the former s.170EA(3)(b) is indicative of a legislative intention that a different approach be taken to the exercise of the discretion. In Bridge v. Mattis (1953) 52 AR (NSW) 49 at 56-57 the NSW Industrial Commission approved of a statement by the Canadian Supreme Court in The City of Ottowa v. Hunter that:

`When we see in Acts in pari materia by the very same Legislature words added to those used in a prior enactment, it would be setting at nought the clear intention of the Legislature to give the later enactment the construction judicially placed on the earlier enactment. To do so would be to read out of the statute expressions which must be held to have been deliberately inserted to make the new Act differ from the old'. [(1900) 31 Can. SCR 7 at 10]

The Commission added that this statement was equally applicable to an amendment of a statute whether by way of addition, alteration or withdrawal of words. [Cf: Amalgamated Wireless (A'sia) Ltd v. Philpott (1961) 110 CLR 617; Wellbridge v. Jackson [1990] VR 689 at 693]. 1

[21] It appears to me that the tendency of the Act is to confine FWA’s jurisdiction in relation to ordering the voting method by which a protected action ballot is determined. That is, my tentative view is that the tribunal has no power to direct the AEC by way of a term of an order made under Division 8, Part 3-3 of the Act to give effect to a particular voting method. This is a matter, it appears, that is left for the AEC to determine, and presumably for policy reasons relating to the management of its own resources.

[22] In respect of the application itself, I have ordered separately that a protected action ballot take place as the various factual and discretionary findings required by the Act were made in favour of the Applicant.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr K. Crank for the Applicant.

Mr D. Cameron for the Respondent.

Hearing details:

2011.
Brisbane.
26 August.

 1   Telstra-Network Technology Group v Kornicki, Ross VP, Watson SDP and Gay C, [Print P3168] 22 July 1997.

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