Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd, Hamersley Iron Pty Ltd and Robe River Iron Mining Co Pty Ltd
[2010] FWA 8210
•25 OCTOBER 2010
[2010] FWA 8210 |
|
DECISION |
Fair Work Act 2009
s.437—Protected action
Construction, Forestry, Mining and Energy Union
v
Pilbara Iron Company (Services) Pty Ltd, Hamersley Iron Pty Ltd and Robe River Iron Mining Co Pty Ltd
(B2010/3515)
SENIOR DEPUTY PRESIDENT HAMBERGER | SYDNEY, 25 OCTOBER 2010 |
Proposed protected action ballot by the Construction, Forestry, Mining and Energy Union.
[1] The Construction, Forestry, Mining and Energy Union (‘the CFMEU’) has applied for a protected action ballot by employees of Pilbara Iron Company (Services) Pty Ltd, Hamersley Iron Pty Ltd and Robe River Iron Mining Co Pty Ltd (collectively, ‘the employer’) employed in the classifications of Locomotive Train Driver and Car Examiner in the Pilbara Rail Operations Division of Rio Tinto Iron Ore (‘RTIO’) who are members of the CMEU or who have appointed the CFMEU as their bargaining representative.
[2] The application was heard in Sydney (and Perth, by video) on 22 October 2010. The CFMEU was represented by S Crawshaw SC, and the employer by H Dixon, SC.
[3] Sections 437 and 438 of the Fair Work Act 2009 (‘the Act’) state:
“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.
(2) Subsection (1) does not apply if the proposed enterprise agreement is:
(a) a greenfields agreement; or
(b) a multi-enterprise 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.”
[4] Section 443 relevantly states:
“443 WHEN FWA MUST MAKE A PROTECTED ACTION BALLOT ORDER
(1) FWA must make a protected action ballot order in relation to a proposed enterprise agreement if:
(a) an application has been made under section 437; and
(b) FWA is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
(2) FWA must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).
(3) A protected action ballot order must specify the following:
(a) the name of each applicant for the order;
(b) the group or groups of employees who are to be balloted;
(c) the date by which voting in the protected action ballot closes...”
[5] The group of employees to be balloted was specified in the CFMEU application thus:
“3 GROUP OR GROUPS OF EMPLOYEES TO BE BALLOTED
3.1 Subject to clause 3.2, the group of employees to be balloted are employed by the Employer in the classifications of Locomotive Train Driver and Car Examiner in the Pilbara Rail Operations Division of Rio Tinto Iron ore (‘RTIO’) who are members of the CFMEU or who have appointed the CFMEU as their bargaining representative.
3.2 Any employee who is bound by an Australian Workplace Agreement that has not passed its nominal expiry date on the day of this ballot order, or who is bound by the terms of the Pilbara Iron Employee (sic) Agreement 2008, shall not be balloted.”
[6] The Pilbara Iron Employment Agreement (‘PIEA’) is a collective agreement made under the Workplace Relations Act 1996 (the ‘WR Act’). It was approved by the Workplace Authority Director on 18 November 2008, and came into effect on 25 November 2008. The PIEA applies to employees of Pilbara Iron Company (Services) Pty Ltd employed on or after 28 July 2008 in classifications which include Locomotive Drivers and Car Examiners. The nominal expiry date of the PIEA is 25 November 2013.
[7] By operation of item 2(1) to item 2(5) of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the ‘Transitional Act’), the PIEA is a WR Act instrument, being a collective agreement defined in section 4(1) of the WR Act, and continues in existence despite the WR Act repeal as a ‘transitional instrument’.
[8] Some of the employees covered by the enterprise agreement proposed by the CFMEU are covered by the PIEA. The application does not seek to ballot employees who are bound by the terms of the PIEA, though the protected action being sought by the CFMEU is directed to achieving an enterprise agreement that would cover those employees (along with others).
[9] The only issue in contention between the parties is whether that fact means that I cannot grant the application for the protected action ballot order.
[10] Item 17 of Schedule 13 of the Transitional Act provides as follows:
“17 Restriction on when protected action ballot orders may be made—certain agreement-based transitional instruments and collective Division 2B State employment agreements that cover employees who will be covered by proposed enterprise agreement
(1) This item applies if one or more of the following instruments cover the employees who will be covered by a proposed enterprise agreement:
(a) any of the following transitional instruments:
(i) a collective agreement;
(ii) a workplace determination;
(iii) a preserved collective State agreement;
(iv) a pre-reform certified agreement;
(v) a section 170MX award;
(b) a collective Division 2B State employment agreement.
(2) An application for a protected action ballot order must not be made under subsection 437(1) of the FW Act earlier than 30 days before the nominal expiry date of the instrument, or the latest nominal expiry date of those instruments (as the case may be).
(3) To avoid doubt, making an application for a protected action ballot order does not constitute organising industrial action.”
[11] The CFMEU argues that while the employees who are covered by the PIEA are prevented from engaging in industrial action, no such restriction applies to those employees who are not covered by the PIEA. Item 17 should not be read as applying when a transitional instrument covers only some of the employees because there are employees who are not covered by an industrial instrument. For item 17(1) to apply to such circumstances, words such ‘one or more’, ‘any of’ or ‘some of’ would need to be read as qualifying the word ‘employees’. Reading such words into the legislation would be contrary to the scheme of the Act, as it could be construed as inhibiting the rights of other employees who would otherwise have an entitlement to seek orders under s. 437.
[12] Item 17 imposes a parallel restriction on when a protected action ballot order can be made in relation to employees covered by a collective agreement-based transitional instrument to that imposed by section 438 on employees covered by an enterprise agreement made under the Act. In both cases there is a prohibition on applications for a protected action ballot being made earlier than 30 days prior to the nominal expiry date of the relevant collective instrument. The explanatory memorandum to the Fair Work Bill 2008 (at paragraph 1762)says the following in relation clause 438:
“An application for a protected action ballot may be made from 30 days before the nominal expiry date of an existing enterprise agreement applying to the employees who will be covered by the proposed enterprise agreement (subclause 438(1)). If two or more enterprise agreements apply, then an application cannot be made earlier than 30 days before the latest of the nominal expiry dates of those agreements (subclause 438(1)).” (Emphasis added).
[13] This appears to envisage a an application for a ballot in support of a proposed enterprise agreement that would cover a group of employees composed of two sub groups of employees, one of whom is covered by an ‘expired’ collective instrument and the other covered by a ‘non-expired’ agreement. If one were to adopt the CFMEU’s construction of ‘the scheme of the Act’ then the first sub group should be free to apply for a protected action ballot in relation to a proposed enterprise agreement that would cover both sub groups. However, the explanatory memorandum indicates that this is not the case. Instead, an application for a protected action ballot can only be made when none of the employees are covered by an agreement which has more than 30 days to run until it reaches its nominal expiry date.
[14] While item 17 (and the related text in the explanatory memorandum to the transitional legislation) does not spell this out quite so clearly, it is consistent with a plain reading of those provisions that a similar restriction applies. In other words, a protected action ballot order cannot be sought some employees who would be covered by the proposed enterprise agreement are covered by a ‘non-expired’ agreement-based collective transitional instrument.
[15] I find that item 17 of schedule 13 to the Transitional Act applies in respect of the application because the PIEA is a collective agreement covering employees who will be covered by the proposed enterprise agreement sought by the CFMEU. The application for a protected action ballot order is prohibited because it has been made earlier than 30 days before the nominal expiry date of the PIEA.
[16] The application is accordingly dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
S Crawshaw SC, for the applicant
H Dixon SC, for the employer
Hearing details:
2010
Sydney and Perth
22 October
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