Construction, Forestry, Mining and Energy Union v O'Brien Glass Industries Ltd
[2012] FWA 4500
•1 JUNE 2012
[2012] FWA 4500 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Construction, Forestry, Mining and Energy Union
v
O'Brien Glass Industries Ltd
(B2012/133)
COMMISSIONER BOOTH | BRISBANE, 1 JUNE 2012 |
Proposed protected action ballot by employees of O'Brien Glass Industries Ltd in Queensland.
[1] This is an application lodged by the Construction Forestry Mining and Energy Union (CFMEU) on 22 May 2012 under section 437 of the Fair Work Act 2009 (the Act) for the making of the ballot order to authorise protected industrial action by Queensland employees of the employer for whom the CFMEU is a bargaining representative and who will be covered by the proposed enterprise agreement. The relevant legislation is as follows:
437 Application for a protected action ballot order
Who may apply for a protected action ballot order
(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to FWA for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.
.....
Matters to be specified in application
(3) The application must specify:
(a) the group or groups of employees who are to be balloted; and
(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.
Note: The protected action ballot agent will be the Australian Electoral Commission unless FWA specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).
(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:
(a) will be covered by the proposed enterprise agreement; and
(b) are represented by a bargaining representative who is an applicant for the protected action ballot order.
Documents to accompany application
(6) The application must be accompanied by any documents and other information prescribed by the regulations.
438 Restriction on when application may be made
(1) If one or more enterprise agreements cover the employees who will be covered by the proposed enterprise agreement, an application for a protected action ballot order must not be made earlier than 30 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be).
(2) To avoid doubt, making an application for a protected action ballot order does not constitute organising industrial action.
440 Notice of application
Within 24 hours after making an application for a protected action ballot order, the applicant must give a copy of the application to the employer of the employees who are to be balloted, and:
(a) if the application specifies a person that the applicant wishes to be the protected action ballot agent—that person; or
(b) otherwise—the Australian Electoral Commission.
Preliminary Procedural Issue
[2] The Respondent has sought to have the application dismissed on the basis of the failure of the Applicant to assist Fair Work Australia to meet its statutory requirement to deal with an application, as far as practicable, within 2 days of the application being made in accordance with s.441(1) of the Act.
[3] Section 441 provides:
441 Application to be determined within 2 days after it is made
(1) FWA must, as far as practicable, determine an application for a protected action ballot order within 2 working days after the application is made.
(2) However, FWA must not determine the application unless it is satisfied that each applicant has complied with section 440.
[4] The relevant facts are as follows. The Applicant filed its application for a protected action ballot order and on the same day the Tribunal published standard directions directing parties to file submissions and witness statements. Also, as is usual in directions for these types of orders, the Respondent was asked whether it will contest the making of the order. The Respondent advised it neither supported nor opposed the application. In the same letter, it raised concerns about bargaining. Following the Respondent’s advice that it neither supported nor opposed the application, the Tribunal advised at the proposed hearing of the matter the parties would not be required to attend (but should be available on the phone) and the application will be dealt with on the basis of the material on the file.
[5] The Applicant then did not file further material in accordance with the initial directions even after being requested to do so by the Tribunal. Further directions (the second directions) were issued, including a request for an explanation for the delay and in the event of non-compliance that the Respondent was invited to make application to dismiss the matter.
[6] Mr O’Brien for the Applicant submits that he did not consider it necessary to file further material once the Respondent indicated it would not oppose the application but nevertheless provided a statutory declaration (that was unsigned and without annexures) in accordance with the Directions. In response to the second Directions about requesting an explanation for the delay, Mr O'Brien indicated that the Respondent was responsible for the delay and the only issue concerned an alternate ballot agent. Mr O'Brien then filed in compliance with the second Directions a submission outlining the alternate ballot agent’s qualifications. These submissions also asserted, without providing details, that the Applicant had complied with all the requirements for the issue of a protected action ballot order.
[7] Mr Ronfeldt for the Respondent submits that the Applicant did not comply with the Directions on four separate occasions. He submitted that the documents filed that included the Applicant’s submissions, an unsworn statement and statutory declaration do not support the Application, are incomplete and do not provide a reasonable explanation for the delay.
[8] Further, the Respondent submits that given the delay, the Tribunal has no power to deal with the matter because pursuant to s.441, an application for a protected action ballot order must, as far as it is practicable be made within 2 working days. Further, that the non-compliance by the Applicant within 2 working days after the application meant that the Tribunal cannot comply with s.441(1) and therefore the order should not be made. As a result, although the Respondent initially did not oppose the making of the order, because there was delay by the Applicant and there was only technical compliance with the requirements of making an order, the Respondent resiled from its position and sought to contest the making of the order.
[9] I have concluded there was (at least) technical compliance with the second Directions. However, the question remains whether the documents filed by the Applicant were sufficient to proceed to determine the matter.
[10] The material filed is not the most comprehensive set of documents to be provided in an application of this nature. It contains mistakes. It is incomplete. But the materials do detail the following: who is applying for a ballot order; the matters to be specified in the application (as required in s.437); how the Applicant was genuinely trying to reach agreement; and details of the ballot agent.
[11] While the Applicant must comply with both the technical and substantive nature of directions, ultimately, this Tribunal does not expect in matters such as this, with very short statutory timeframes, that further information cannot be provided at a later date. It is the case, even when there is a hearing on the papers, that parties may be required to clarify certain aspects of an application. Such an approach is contemplated in the directions issued in this matter.
[12] The other reason supporting that the matter should proceed to be determined notwithstanding it was not practicable to determine it within 2 working days is that the protected action ballot order was not initially contested. This resulted in the Applicant’s conclusion (wrongly made, as it turns out) that it did not have to file further material.
[13] In matters of this nature, it is almost always the case that some aspects of the application need clarification at the hearing and it was the case with this matter.
[14] I therefore conclude that on the material before the Tribunal, the Applicant has explained its delay and complied with the second direction of the Tribunal. I conclude that the matter should not be dismissed and that I should determine the matter.
[15] Clearly, the matter could not be determined within 2 days. However, for the reasons outlined above, the determination falls within the exception that it was not practicable to do so. Such a statutory direction does, however, require me to determine the matter expeditiously and I have attempted to do so.
Should a protected action ballot order issue?
[16] Having concluded that the matter should be determined, I turn to the requirements that must be satisfied when deciding whether to make a protected action ballot order.
[17] The Respondent does not dispute that the Applicant is a bargaining representative of an employee who will be covered by the proposed enterprise agreement as required by s.437(1). Further it does not dispute that s.438 is satisfied in that the protected action ballot order must not be made earlier than 30 days before the nominal expiry date of the Enterprise Agreement. It accepts that the Applicant is genuinely trying to reach agreement with the employer.
[18] The Respondent disputes that the Applicant has satisfied a number of requirements for the ballot to issue. In response, the Applicant argues that the Respondent should be estopped from arguing these matters having initially advised that it did not oppose the application. The Tribunal can inform itself in any manner it considers appropriate. I consider that the Respondent’s views about the compliance with the various requirements would assist me and that it is appropriate to consider them in determining this application.
Incorrect name of employer
[19] In written submissions the Respondent asserted that the use of an incorrect name of the employer invalidated the application. Further, s.440 requires that the Applicant give a copy of the application to the employer, and that it failed to do this effectively.
[20] The Applicant says that by giving a copy to Mr Dean Bright, it has satisfied the requirement in s.440, and that any mistake in the Application can be amended under s586 of the Act. Mr Ronfeldt submits that this is a mandatory requirement, which cannot be ‘cured’ by an amendment pursuant to s586.
[21] This particular issue was considered by SDP Richards in Construction Forestry Mining and Energy Union v Brookfield Multiplex Construction Pty Ltd:
“Section 441(2) of the Act is a statutory command to the tribunal to the effect that it cannot determine the application until such time as it is satisfied that there has been compliance with the requirements for service of the notice of application (under s.440 of the Act).
It appears to me that courts and tribunals are disinclined to invalidate an application in circumstances where a critical identifier has been misrepresented in a minor or technical way.
Such circumstances that come to mind are incorrect spellings or minor variations in a company’s name, or indeed in the name of an employee organisation.
Clearly, an application ordinarily would not be vitiated merely because of a technical or typographical defect which is capable of remedy by the particular powers of the tribunal or otherwise. The tribunal’s particular powers under s.586 may accommodate such circumstances.” 1
[22] Senior Deputy President Richards contrasts this power with the situation where an Applicant has served a similar but different legal entity, noting in these circumstances that such a requirement would not meet the service requirements of s.440.
[23] The misnomer is this case is that the Respondent is named in the application as O’Brien Glass Industries Pty Ltd (emphasis added) rather than O’Brien Glass Industries Ltd.
[24] The facts of this situation are similar to the above example, and as a minor variation in the company’s name it can be subject to amendment under s.586 notwithstanding the mandatory nature of the provision.
[25] Accordingly I order that the Respondent is to be referred to by its correct name, O’Brien Glass Industries Ltd and that all documents filed are to be taken to refer to that corporation.
Employees to be balloted
[26] The Respondent submits that the application incorrectly identified employees to be balloted. The application states:
3.1 the employees to be balloted are those employees for whom the Construction Forestry Mining and Energy Union are the bargaining representative and who will be covered by the proposed enterprise agreement. The proposed enterprise agreement covers those employees currently employed by O'Brien Glass Industries Pty Ltd in Queensland.
(The misnomer is corrected by the orders I have already made.)
[27] Section 437(3) requires the application to specify the group or groups of employees who are to be balloted. Section 437(5) is a potentially limiting effect on s.437(3)(a) 2 in that the group of employees specified in paragraph 3 is taken to include only those employees who will be covered by the proposed Enterprise Agreement and represented by a bargaining representative who was an Applicant for the order. I have formed the view that the application does correctly identify the employees to be balloted but should there be a dispute as to who is in this group then s.437(5) will determine those employees who are to be balloted.
[28] I therefore conclude that s.437(3) is satisfied.
Appointment of alternate ballot agent
[29] The application seeks the appointment of an alternate ballot agent, the Australian Election Company and this ballot agent was duly notified of the application in accordance with s.440.
[30] The Respondent submits that the Applicant has not provided evidence of any reason as to why the Australian Election Company is better suited to conduct the ballot when compared to the Australian Electoral Commission (AEC).
[31] In oral submissions Mr O'Brien submitted that the alternate ballot agent was appropriate. Further he submitted that the statements filed on behalf of Mr Kidd demonstrate compliance with the requirements under the Act and regulations.
[32] However no particular reasons were given in support of why the alternative ballot agent should be engaged rather than the AEC.
[33] In Construction Forestry Mining and Energy Union v Grocon Ltd (Grocon), SDP Watson, noting the discretion of the Tribunal to decide whether to appoint the AEC or an alternative ballot agent, wrote the following:
“The determination of the ballot method will reflect a judgement, in the circumstances of the employees and their employment, as to what process will best provide a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement, rather than the preference of theapplicant or, indeed, either party. [footnote omitted]” 3
[34] I agree. The ballot method must provide a fair process. I have concluded that in all the circumstances, similarly to Grocon, the CFMEU has not established any proper basis for the alternate ballot agent to the AEC conducting the ballot. Indeed, no reasons at all were suggested, other than an assertion that it was ‘appropriate’.
[35] Having decided that the AEC is to conduct the ballot, there is no need to comment on the qualities of the alternate ballot agent and I do not do so.
Conclusion
[36] As the Applicant has satisfied the requirements of section 437, and the Applicant has been and is genuinely trying to reach an agreement with the employer of the employees who are to be balloted, the Tribunal must make a protected action ballot order.
[37] The order will be amended to specify the Australian Electoral Commission as the ballot agent.
[38] The following orders reflect the powers afforded to the AEC in subdivision B of division 8 of Part 3-3 of the Act and regulations.
[39] The terms of the order will vary from the proposed draft order:
- Clause 4 will be amended - Australian Election Company will be deleted and Australian Electoral Commission will be inserted in the order; and
the proposed directions for the ballot agent will vary as follows:
- Clause (a)-timetable: will be deleted in favour of the normal form in Fair Work Australia ballot orders, specifying the closing date, in accordance with is a s.451(2)(a) of the Act;
- Clause (b) - type of ballot: will be deleted that being a matter for the AEC to determine, in accordance with s.451(2) of the Act;
- Clause (c) - roll of voters: will be deleted that being a matter for the AEC to determine in accordance with s.452 of the Act;
- Clause (d) - addition/removal from the roll: will be deleted that being a matter for the AEC to determine in accordance with s.454 of the Act.
[40] Further, wherever required “O’Brien Glass Industries Pty Ltd” will be replaced with “O’Brien Glass Industries Ltd”.
[41] The ballot order will be issued in due course.
COMMISSIONER
Appearances:
T O’Brien for Construction, Forestry, Mining and Energy Union
P Ronfeldt of Thomsons Lawyers for O’Brien Glass Industries Ltd
Hearing details:
2012.
Brisbane:
31 May.
1 [2012] FWA 2817 (3 April 2012) at paragraph nos. 15, 16, 17 and 18.
2 The contents of s.437(3)(b) were not disputed.
3 [2012] FWA 1716 at paragraph 33.
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