CPSU, the Community and Public Sector Union & Ors v Commonwealth Scientific and Industrial Research Organisation
[2011] FWA 735
•3 FEBRUARY 2011
[2011] FWA 735 |
|
SUPPLEMENTARY DECISION |
Fair Work Act 2009
s.437—Applications for a protected action ballot orders
CPSU, the Community and Public Sector Union
v
Commonwealth Scientific and Industrial Research Organisation
(B2011/2538)
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Commonwealth Scientific and Industrial Research Organisation
(B2011/2539)
COMMISSIONER SMITH | MELBOURNE, 3 FEBRUARY 2011 |
Proposed protected action ballot by employees of Commonwealth Scientific and Industrial Research Organisation (CSIRO); Supplementary Decision to PR506390.
INTRODUCTION AND BACKGROUND
[1] On 1 February 2011 I issued a Decision 1 and Orders2 in relation to applications for protected action ballots made by the CPSU, the Community and Public Sector Union (CPSU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” know as the Australian Manufacturing Workers’ Union (AMWU). The applications were made in relation to relevant employees of the Commonwealth Scientific and Industrial Research Organisation (CSIRO).
[2] During the proceedings, which led to the making of the Orders, submissions were made in relation to whether or not the two unions were genuinely seeking to reach agreement and the nature of the questions asked. Rulings were made on those questions. In making the Orders I decided to separate the questions that were to be put rather than have the question as a single composite question as was contained in the application. The CPSU sought an urgent re-listing so that it may address this matter. It sought a single question. Given that it did not have a proper opportunity to address the form of the Orders that I decided upon, the matter was re-listed. The AMWU sought leave to intervene so that it may adopt and support the submissions of the CPSU.
[3] The original application contained a question framed as follows:
The questions to be put to voters in the ballot are:
Do you, in support of advancing claims in the negotiation of an Enterprise Agreement with the CSIRO, endorse the taking of protected industrial action which may involve you and/or other employees engaging in any and all of the following terms of industrial action separately, concurrently and/or consecutively:
a. An unlimited number of bans and limitations on the performance of activities or processes within, or connected with, the SAP system.
b. An unlimited number of stoppages of work of up to two (2) hours duration.
c. An unlimited number of twenty-four (24) hour stoppages of work.
Yes / No
[4] The Orders issued were in the following terms.
The questions to be put to voters in the ballot are:
Do you, in support of advancing claims in the negotiation of an Enterprise Agreement with the CSIRO, endorse the taking of protected industrial action which may involve you and/or other employees engaging in any and all of the following terms of industrial action separately, concurrently and/or consecutively:
QUESTION 1
An unlimited number of bans and limitations on the performance of activities or processes within, or connected with, the SAP system.
Yes / No
QUESTION 2
An unlimited number of stoppages of work of up to two (2) hours duration.
Yes / No
QUESTION 3
An unlimited number of twenty-four (24) hour stoppages of work.
Yes / No
[5] Further argument was advanced by the CPSU drawing on the Decision of the Full Bench in John Holland Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) & Anor [2010 FWAFB 526] (John Holland) and CPSU, the Community and Public Sector Union v Australian Customs and Boarder Protection Service [2010 FWA 8293] (Customs).
[6] In John Holland, the Full Bench dealt with scheme of the Fair Work Act 2009 (the Act) and the particular criticism relating to the framing of the questions. It regarded the criticism as a technical and pedantic approach. I note that except for one question, each was separated in the manner contained in the Orders I made. What was said to be a composite question was one which asked for the approval of indefinite or periodic bans on overtime.
[7] On this matter the Bench concluded:
“The criticism of question eight is unfounded. It might have been clearer to split that question into two parts, one dealing with indefinite bans on overtime and one with periodic bans. But the question is not meaningless. Seen in its full context the question asks whether employees will endorse bans on overtime which are either indefinite or periodic. An affirmative answer would indicate endorsement of both types of ban.” 3
[8] In Customs, His Honour Vice President Lawler found that a rolled up question in identical terms of that proposed in this matter is permissible. His Honour concluded:
“It would undoubtedly have been preferable for the CPSU to split the question in this case into its component parts. However, as noted by the Full Bench in John Holland, in most cases the drafting of the questions will be a matter for the applicant. The CPSU elected not to split the question and accordingly I was obliged to rule on whether the ‘rolled up’ question was permissible. For the reasons I have given, I concluded that the question in the present case met the relevant requirements in the FW Act and that the ballot order sought by the CPSU could not be refused on the basis of the ‘rolled up’ form of the question. 4
CONCLUSION
[9] In John Holland the overwhelming approach to putting a question on which employees voted was to separate the questions. The processes contained in the Act are designed to permit employers and employees to engage in industrial action in support of their bargaining positions without the fear of external legal action. In other words, the resort to industrial action by either the employer or the employees is a legitimate and proper exercise of economic power provided that a particular process is followed. The importance of adhering to that process is critical to the legal protection of both parties.
[10] As the Bench in John Holland noted:
“We draw attention in particular to the requirement for notice in ss.414(1) and (6). If the action specified in the notice is not authorised by the relevant ballot, any action taken pursuant to the notice will not be protected industrial action. For this reason there will be a natural tendency for bargaining representatives to frame ballot questions in a way which minimises the possibility that the industrial action eventually taken will fall outside the action authorised by the ballot. If the ballot questions describe industrial action in a general way it might subsequently be held that specific types of industrial action were not authorised. No doubt, for that reason, a number of bargaining representatives have drafted ballot applications containing very detailed questions.” 5
[11] In Customs, His Honour Vice President Lawler also noted:
“It would undoubtedly have been preferable for the CPSU to split the question in this case into its component part.” 6
[12] Whilst it was true that a question existed in John Holland which contained an alternative, nonetheless it was an alternative to a single and identifiable action; namely an overtime ban. In the present matter the nature of the industrial action ranges from administrative bans and limitations, to various stoppages of work. It appears to me that the John Holland example is not as broad as the issues raised in the questions posed in the applications before me. Its extension to present matter may be tenuous.
[13] Nothing was argued on the merits as to why both the CPSU and the AMWU preferred not to split the questions into the component parts, I was simply advised that the application could not be refused. Indeed, both unions positively argued against that approach notwithstanding the risk identified by the Full Bench in John Holland and the “preferable course” expressed by His Honour the Vice President Lawler in Customs.
[14] Because of the course proposed by the unions, it would seem to me that if an employee was not prepared to endorse any particular element of the action proposed in the question, she/he would be voting no. It would only be in circumstances where the employee endorsed every element of the proposed action that a yes answer would be available. However this, no doubt, is what was considered when framing the question as a composite one.
[15] It appears that the question does specify the nature of the proposed industrial action as required by the Act, and on this basis, I will set aside the two Orders issued on 1 February 2011 and re-issue them in the form originally proposed by the applicants. I set aside the Orders on the basis that the two unions were not given a proper opportunity to address on the issue raised in this Decision.
COMMISSIONER
Appearances:
S. Popovski for the CPSU, the Community and Public Sector Union.
A. Donnellan (intervening) for the “Automotive, Food, Metals, Engineering, Printing and
Kindred Industries Union” known as the Australian Manufacturing Workers’
Union (AMWU).
A. Allars with W. Smith and C. Smith for the Commonwealth Scientific and Industrial
Research Organisation
Hearing details:
2011.
Melbourne:
February, 3.
1 [2011] FWA 666
2 PR506393 and PR506394
3 [2010] FWAFB 526 at paragraph 21
4 [2010] FWA 8293
5 [2010] FWAFB 526 at paragraph 16
6 [2010] FWA 8293 at paragraph 14
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