CPSU, the Community and Public Sector Union v Australian Customs and Border Protection Service

[2010] FWA 8293

[2010] FWA 8293

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.437—Protected action

CPSU, the Community and Public Sector Union
v
Australian Customs and Border Protection Service
(B2010/3547)

VICE PRESIDENT LAWLER SYDNEY, 26 OCTOBER 2010

Protected action ballot order - form of question - permissibility of a ‘rolled up’ question seeking a single yes/no answer to whether multiple forms of industrial action are approved.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (FW Act) by the CPSU, the Community and Public Sector Union (CPSU) for a protected action ballot order in relation to certain employees of the Australian Customs and Border Protection Service (Customs). There was no substantive opposition to an order being made. Rather, Customs objected to the form of the question proposed by the CPSU.

[2] The question proposed by the CPSU is as follows:

Question: Do you, for the purpose of advancing claims in the negotiation of an enterprise agreement with Australian Customs and Border Protection Service authorise industrial action against the employer which may involve you and/or other employees engaging in any and all of the following forms of industrial action separately, concurrently and/or consecutively:

a. An unlimited number of stoppages of work of up to one (1) hour; and

b. An unlimited number of four hour (4) stoppages of work; and

c. An unlimited number of eight hour (8) stoppages of work; and

d. An unlimited number of ten hour (10) stoppages of work; and

e. An unlimited number of twelve hour (12) stoppages of work; and

f. An unlimited number of twenty four (24) hour strikes; and

g. An unlimited number of indefinite, periodic or partial bans or limitations upon the performance of overtime duty, emergency duty, dirty, unsanitary, offensive and insanitary work, off-shore pre-border checks, and the provisioning, refuelling and maintenance of marine vessels?

Yes / No

[3] Customs has two objections:

(i) A ‘rolled up’ question of this sort is not permissible under the FW Act.

(ii) Paragraph (g) of the question is too ambiguous and does not adequately specify the nature of the industrial action sought to be approved.

Relevant provisions

[4] Relevant provisions include the following:

436 Object of this Division

The object of this Division is to establish 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.

Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.

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.

...

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;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

...

(underline emphasis added)

Is a ‘rolled up’ question permissible?

[5] Customs relied on the decision of Watson VP in National Union of Workers-New South Wales Branch v Fresh Exchange Pty Ltd 1 (Fresh Exchange) where his Honour held that a rolled up question of the type sought by the CPSU in this case is not permitted by the FW Act. In that case the proposed question was:

In support of reaching a union collective agreement with your employer do you support the taking of protected industrial action against your employer which may involve one or more of the following: 1 hour stoppages of work; 2 hours stoppages of work; 3 hours stoppages of work; 4 hours stoppages of work; 8 hours stoppages of work; 12 hours stoppages of work; 24 hours stoppages of work; 48 hours stoppages of work; 72 hours stoppages of work; strikes for a period of one week; indefinite strikes; indefinite or periodic bans on overtime of storage service employees who are members of the National Union of Workers, New South Wales Branch engaged at the Arndell Park Site?

[6] His Honour observed:

The Requirement for Clarity

[9] These provisions are similar but not identical to the corresponding provisions of the Workplace Relations Act 1996. In relation to those provisions a Full Bench of the Australian Industrial Relations Commission in Country Fire Authority v United Firefighters’ Union of Australia said:

“As noted above, the requirement in s.452(1)(a) is that the application for a protected action ballot must include the question or questions to be put to the relevant employees in the ballot, including the nature of the proposed industrial action. If industrial action is approved by a secret ballot, and all other pre-requisites for protected action are present, a written notice to the employer of intended industrial action is required to state the nature of the intended action and the day when it will begin (see s.441(6)). It was submitted by Mr. Parry SC, who appeared with Mr O’Grady for the CFA, that the use of the same words in s.441(6) and s.452(1) requires a similar approach - albeit that the notices are directed on the one hand to an employer, and on the other, to employees. As a matter of construction we believe this is correct. Further, while the intention of the legislature can only be gleaned from the provisions of the legislation in this case, it appears logical that when employees are asked whether to authorise industrial action in a protected action ballot, the nature of the proposed industrial action is expressed clear enough to enable them to make an informed choice.” [(2006) 158 IR 120 at [20]. See also National Union of Workers v Blue Circle Transport Pty Ltd PR973654 at [40]; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Woolworths Limited PR973708 at [16]-[29]; Construction, Forestry, Mining and Energy Union v Caelli Constructions (Vic) Pty Ltd[2009] AIRC 543 at [27]-[32].]

[10] In my view the legislation requires an application to propose a question and contain other details about the industrial action and other relevant matters such as will permit employees to make an informed choice on whether to authorise the particular action specified in the question. A question which is ambiguous or does not permit such a result does not comply with the requirements for a valid application.

Conclusions

[11] In my view the proposed question to be put to employees is ambiguous. Employees are proposed to be asked whether they support one or more of twelve specified forms of industrial action. An employee may support some but not all of the twelve forms of industrial action specified in the question and therefore may reasonably answer YES to the question. A positive vote would ostensibly provide authorisation for all twelve forms of industrial action. Yet in reality a majority of members may not support some or any of the twelve forms of industrial action. Hence authorisation may be thought to have been given when the majority of union members do not in fact support the particular action.

[12] In my view the confusion created by the wording of the question arises from the mixing of notions of authorisation on the one hand and taking industrial action on the other. What is apparently being sought is authorisation for all twelve forms of industrial action. But because the union apparently does not propose to organise and take all twelve forms of industrial action it has sought to convey the limited practical application of the action by the use of the phrase “one or more” in the question. The mixing of these notions has resulted in a misleading and ambiguous question which cannot, in my view, lead to the views of employees who vote on the question being expressed in the ballot.

[13] For these reasons I do not believe that the question is expressed in sufficiently clear terms to enable employees to make an informed choice on the industrial action they are asked to authorise. Therefore the requirements of s 437 are not satisfied. Further, the notion that employees may authorise industrial action which a majority do not in fact support is inconsistent with the object of Division 8.

[14] I am also concerned that the order sought does not describe with sufficient particularity the class of employees who are eligible to vote in the ballot.

[7] Customs also relied on the decision of Bartel DP in Australian Municipal, Administrative, Clerical and Services Union v Pelican Point Power Limited 2in which her Honour applied Watson VP’s approach.

[8] I note that many ballot orders containing ‘rolled up’ questions have been made by members of Fair Work Australia (FWA). For the reasons that follow, I find myself unable to agree with the conclusions of Watson VP that such an approach is impermissible under the FW Act.

[9] In John Holland Pty Ltd v AMWU 3 (John Holland) Full Bench of FWA dealt with an appeal against a ballot order based on the form of the questions in a protected action ballot order. In that case the question proposed for the ballot was relevantly as follows:

In support of reaching an Enterprise Agreement with John Holland Pty Ltd do you endorse the taking of any and all protected industrial action against your employer which is authorised by this ballot, separately, concurrently and/or consecutively in the form of:

Question 1

Stoppages of work for a 1 hour period?

Yes / No

...

Question 8

Indefinite or periodic bans on overtime?

Yes / No

[10] There were a number of grounds of appeal. The Full Bench drew attention to the same provisions I have set out above and, relevantly for present purposes, held:

[11] The first ground of appeal is based on the contention that it is a requirement of s.437(1) that the application for a protected action ballot order must unambiguously specify the nature of the particular industrial action which is to be endorsed. The appellant relies on the terms of ss.437(1) and (3)(b) as well as the object of the relevant division in s.436. ...

...

[19] Moving now to the construction of s.437 itself, seen in its statutory context, all that the section requires is that the questions should describe the industrial action in such a way that employees are capable of responding to them. If the questions are ambiguous or lack clarity there may be consequences for the bargaining representative and the employees if reliance is placed on the result of the ballot in taking industrial action. If the question or questions give rise to ambiguity, the conclusion may be reached that the industrial action specified in a notice under s.414 was not authorised by the ballot and that the action is not protected for the purposes of s.409(2). It is true that ambiguity or lack of clarity in the description of the industrial action is undesirable, but these are matters more appropriate for consideration under other provisions. It follows that in most cases the drafting of the questions will be a matter for the applicant.

[20] The appellant’s criticism of the questions in the AMWU application is based on a technical and pedantic approach. The expression “separately, concurrently and/or consecutively” does not deprive the question of meaning. Those expressions apply, as far as there is scope, to the types of industrial action specified. We have already noted the terms of s.459(2) which gives separate justification for the term “consecutively”. While it is possible to construct extreme examples of the number of types of industrial action which might be authorised by an affirmative answer to the questions, in practical terms the questions do no more than identify eight types of industrial action and the possible options for taking each of those types of action.

[21] 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.

[11] The criticism of the ‘rolled up’ question in the present case comes down to the proposition that an employee may support some forms of industrial action specified in the question but not others and a ‘rolled up’ question deprives the employee of the opportunity of approving some forms of action but not others and that this is contrary to the provisions of the FW Act set out above. However, that is precisely the criticism directed at question 8 in John Holland and rejected by the Full Bench in paragraph [21] of its decision. The reasoning in paragraph [19] is also particularly apposite and, in my view, directly applicable to the present case.

[12] I make two additional points:

(i) The reference to “question or questions” in paragraphs 437(3)(b) and 443(3)(d) suggest that the parliament envisaged that a single question could be permissible.

(ii) Under the regime created by the FW Act, there is no obligation on an employee to take or participate in industrial action approved in a protected action ballot. In other words, an employee may choose to vote to approve all types of industrial action encompassed by a ‘rolled up’ question while being unhappy about one or action types and the, consistent with that position, refrain from engaging in action of that type.

[13] The decision of the Full Bench of the Australian Industrial Relations Commission (AIRC) in Country Fire Authority was not concerned with the permissibility of a ‘rolled up’ question, let alone a ‘rolled up’ question under the FW Act regime. On the other hand, the Full Bench in John Holland, in considering the challenge to question 8, was addressing the same substantive argumentadvanced before me in reliance on Watson VP’s decision in Fresh Exchange. I am far from persuaded that there is any relevant tension between the decisions in Country Fire Authority and John Holland. However, to the extent that there is a tension between those decisions, as a single member I feel constrained to follow John Holland, it being a more recent Full Bench decision of FWA that is, in substance, directly on point.

[14] 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.

Part (g) of the proposed question

[15] The observations in paragraph [19] of the decision in John Holland are also particularly apposite to whether part (g) of the proposed question in this case met the requirements of the FW Act. Mr Barlow for the CPSU submitted without contradiction that key terms in that part of the question were related to existing allowances and that the particular types of work that could be the subject of the bans would be well understood by relevant employees.

[16] I am not persuaded that there is sufficient ambiguity in part (8) of the question to render it impermissible.

Conclusion

[17] For the foregoing reasons I rejected Customs’ challenge to the CPSU’s application and determined that a ballot order should issue with the question in the form proposed by the CPSU. I note that with the agreement of the CPSU, Customs reserved a right to seek a variation to the ballot order to add an order pursuant to s.443(5) extending the notice period for the purposes of s.414.

VICE PRESIDENT

Appearances:

K. Barlow for the CPSU, the Community and Public Sector Union.

B. Avallone for the Australian Customs and Border Protection Service.

Hearing details:

Sydney.

2010:

October 26.

 1 [2009] FWA 221

 2   [2010] FWA 7739

 3   [2010] FWAFB 526

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