CPSU, the Community and Public Sector Union v Commonwealth of Australia (represented by and acting through the Department of Agriculture, Fisheries and Forestry)
[2011] FWA 5281
•17 AUGUST 2011
[2011] FWA 5281 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot
CPSU, the Community and Public Sector Union
v
Commonwealth of Australia (represented by and acting through the Department of Agriculture, Fisheries and Forestry)
(B2011/3248)
COMMISSIONER DEEGAN | DARWIN, 17 AUGUST 2011 |
Application to extend protected industrial action period.
[1] On 8 August 2011 CPSU, the Community and Public Sector Union (the CPSU) lodged an application under s.459 of the Fair Work Act 2009 (the Act) requesting an extension for a further 30 days of the period provided for the taking of industrial action pursuant to a protected action ballot order issued on 16 June 2011 [PR51048].
[2] The protected action ballot order related to the taking of industrial action by employees represented by the CPSU bargaining for a new agreement with the Department of Agriculture Fisheries and Forestry (DAFF).
[3] The application was listed for hearing on 9 August 2011. At the hearing the representative of DAFF indicated that the Department objected to the extension.
The CPSU’s evidence
[4] The CPSU filed a statement by Mr Michael Tull, CPSU National President, setting out a number of factors in support of the application for the extension including:
• That the CPSU is a bargaining representative;
• Details of industrial action, in particular stoppages of work for certain periods of time, taken by DAFF employees since the declaration of the protected action ballot;
• The fact that one notice of industrial action had been withdrawn by the CPSU when DAFF advised that an improved pay offer would be forthcoming but no such offer eventuated;
• That on 1 August 2011 the CPSU had notified an intention to take further industrial action on and from 11 August 2011 but had offered to withdraw the notice if DAFF agreed to further negotiations;
• That the 30 day period for the taking of industrial action had not previously been extended;
• That the CPSU had acted in accordance with good faith bargaining obligations; and
• If the extension were not granted the CPSU would be unable to take further industrial action in the form of indefinite bans.
[5] Mr Tull expanded on his statement in oral evidence. He explained that on 4 August DAFF had sent to the CPSU a letter expressing concern about the prospective impact of the bans that were proposed to commence from 11 August. In addition the CPSU had had a number of discussions with DAFF about the bans and believed that DAFF was genuinely concerned that the potential impact of those bans would be quite substantial.
[6] Mr Tull stated that, on 5 August, he had replied to the DAFF letter noting DAFF’s concerns and making a proposal for the withdrawal of the notice of the indefinite bans. He noted, however, that the 30 day period for the taking of industrial action was due to expire on 11 August and so, if the bans were withdrawn, the CPSU would be unable to take any further industrial action constituted by indefinite bans. He stated that he was unable to put his members in that position, as given the negotiations of the preceding week, it was his assessment that his members would need to use industrial action to keep pressure on their employer. The letter to DAFF offered to withdraw the notice of indefinite bans if DAFF would support a CPSU application for an extension, for a further 30 days, of the period for the commencement of industrial action taken pursuant to the protected action ballot.
[7] The employer undertook to consider its position and advise CPSU on 8 August 2011. On that date the employer advised that if the CPSU continued with the bans then an application would be made to the tribunal to have the industrial action terminated.
[8] Under cross-examination by Mr Fernon, Mr Tull agreed that he was aware that a substantial number of meat inspectors who were contractors had been engaged by DAFF as non-ongoing employees. He also agreed that DAFF’s letter of 4 August 2011 had indicated that the department had little specific information about the number of CPSU members who performed the duties affected by the bans and that it was unclear what impact the proposed bans would have on the performance of those duties. Mr Tull explained that he had been unable to comply with DAFF’s request of 4 August 2011 that he assess the impact of the action the CPSU proposed to take including how many members were going to take the action and the practical effect of the bans. He stated that he had been in no position to provide such a complete analysis as there were many matters he was unaware of including what response action would be taken by DAFF.
[9] Mr Tull was also questioned about an email 1 sent by a Mr Ran Tal, a DAFF employee and CPSU delegate, on 3 August 2011 to a DAFF regional manager in response to a request for information about whether that employee intended to take industrial action as notified by the CPSU. In his reply the employee had stated that:
“I want to point an inaccuracy in the letter attached to your e-mail. In the letter it says “the industrial action WILL include indefinite bans on the conduct of ante-mortem inspection by all CPSU members who performs (sic) that duty”. This is incorrect. In fact, the industrial action MAY include bans on the conduct of ante-mortem, which may or may not be for a limited time, and may or may not take effect in any given export registered plant or indeed a group of plants.
Unfortunately I am not in a position to provide further information on questions you have asked in your letter - and most other OPVs would probably find it hard to answer as well. This is because we don’t know which plants will be asked to take industrial action and which plant (sic) will not - this will be determined on the night before the action will be taken by the CPSU, and members will only then be asked to take action.”
(Emphasis in original)
DAFF’s evidence
[10] In support of the objection to the granting of the extension of time application DAFF tendered into evidence a number of documents, which were admitted without objection:
• A letter from Mr Garry Jolly to Mr Michael Tull dated 1 August 2011; 2
• An email from Mr Ran Tal to Mr Nathan Rhodes dated 3 August 2011; 3
• An email from Ms Brooke Muscat to Mr Victor Hatch dated 4 August 2011; 4
• A letter from Mr Phillip Glyde to Mr Michael Tull dated 8 August 2011; 5 and
• A ‘CPSU Update’ of 8 August 2011. 6
The CPSU’s submissions
[11] In support of the application it was submitted for the CPSU that the extension should be granted as the application had been validly made under s.459(3) of the Act and the period had not previously been extended. A number of decisions 7 of Fair Work Australia were relied upon by the CPSU in support of the granting of the extension.
[12] In particular, the CPSU relied on the decision of Commissioner Lewin in Transport Workers Union v Murray Goulburn Co-Operative Limited, 8 noting that the Commissioner had relied upon the Objects of the Act in the exercise of his discretion, and noting that a refusal to grant the application would not simplify or streamline the protected action ballot process, and concluding that it would be unfair to employees to require a further protected action ballot process.9 It was also noted that an argument was put in the TWU case that employees may have changed their minds since the earlier ballot but that there was no evidence to support the claim. At paragraph [40] of the decision Lewin C had found that the bargaining representatives had been genuinely trying to reach agreement and that it would be incongruous with the objective circumstances of the negotiations and the Objects of the Act to refuse the application to extend the 30-day period.
[13] It was noted by the CPSU that cases where there was opposition to the granting of an extension of the 30 day period generally fell into two broad categories; firstly, those where there had been laxity or disinterest by the relevant union in advancing its claims; 10 and secondly, those where there had been some breach of good-faith bargaining obligations.11 The CPSU referred to the decision of Hampton C in Maritime Union of Australia v DP World Adelaide Pty Ltd12 where at paragraphs [35] to [37] the Commissioner concluded that it “would be inappropriate to penalise a party that had acted constructively by not utilising its right to take industrial action”. According to the CPSU submission the facts in that matter were similar to those in the current case, as negotiations were proceeding and there appeared to have been progress in the negotiations. It was further noted that in the present matter the union had delayed taking industrial action in good faith so as to progress negotiations, and it was put that the union should not be prejudiced for having relied on the employer’s statement that an improved offer was imminent.
[14] It was the CPSU’s submission that the cases demonstrated that, so long as the union had been advancing its claims, applications for extensions of the 30 day period had not been refused.
[15] So far as those cases involving allegations of breaches of good faith bargaining obligations were concerned it was noted that the NUW v Tyco 13 decision was authority for the principle that if a union or bargaining representative was in breach of good faith bargaining obligations it might be grounds for refusing an application for the extension of the 30 day period.
[16] The CPSU did not address in detail the respondent’s submission dealing with the change in composition of the workforce at DAFF but noted that the roll of voters for a secret ballot could not, under the Act, be disclosed and that a similar argument dealing with the possibility that members of the workforce to be ballotted may have changed their minds since the ballot was originally conducted, had not been found to be a reason to refuse an extension the 30 day period by Lewin C in the TWU v Murray Goulburn case 14, particularly given that there was no evidence to support the contention.
[17] Finally, in response to the submissions put for DAFF, it was submitted by the CPSU that a compelling reason why the extension should be granted was the requirement of the original protected action ballot order that the union give 7 days’ notice (rather than the usual 3 day period under s.414(2) and s.443(5) of the Act) of any industrial action by DAFF employees. This longer notice period, which was found to be justified by exceptional circumstances constituted by the vital nature of the work performed by some DAFF employees, resulted in the practical requirement (as a result of intervening weekends) that each period of industrial action be notified 11 days prior to the action commencing. Such an extended notice period had severely restricted the ability of the CPSU to take industrial action in the initial 30 day period.
DAFF’s submissions
[18] It was put for DAFF that the application for the extension should not be granted as:
• The granting of the extension under s.459 is not automatic. Rather, it is subject to the discretion of FWA which places an onus on the applicant for an extension to identify some proper basis upon which FWA should exercise its discretion in the applicant’s favour, and CPSU had not made out the case for the exercise of that discretion in its favour; 15
• The CPSU had ample time within the initial 30 day period in which to take any form of industrial action it desired to take and should not be given a “second bite” merely because it had failed to take a particular form of action in that period; 16 and
• Since the protected action ballot had been declared there was uncontested evidence that a large number (175) of former contractors to DAFF had been employed as non-ongoing employees and that these people should be given the opportunity to vote in another ballot.
[19] It was also put for DAFF that the email sent by the CPSU delegate, Mr Ran Tal, indicated that despite notifying proposed industrial action on 1 August 2011, no such action had actually been organised by the CPSU. It was submitted that this was a relevant consideration in the exercise of the discretion to extend the time for the taking of industrial action.
[20] It was the DAFF position that the extension sought by the CPSU had not been demonstrated to be appropriate. Further the discretion should not be exercised in the CPSU’s favour as:
• The CPSU had failed to take advantage of the opportunity to take industrial action in the form of indefinite bans in the initial 30 day period allowed under the statute; and
• The employment of an additional 175 meat inspectors since the date of the protected action ballot meant that it was more appropriate to hold a further ballot than to extend the time for the taking of industrial action under the authority of the earlier ballot.
Relevant statutory provisions
[21] Section 459 of the Act provides as follows:
459 Circumstances in which industrial action is authorised by protected action ballot
(1) Industrial action by employees is authorised by a protected action ballot if:
(a) the action was the subject of the ballot; and
(b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and
(c) more than 50% of the valid votes were votes approving the action; and
(d) the action commences:
(i) during the 30-day period starting on the date of the declaration of the results of the ballot; or
(ii) if FWA has extended that period under subsection (3)—during the extended period.
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.
(2) If:
(a) the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and
(b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;
then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).
(3) FWA may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:
(a) an applicant for the protected action ballot order applies to FWA for the period to be extended; and
(b) the period has not previously been extended.
Consideration
[22] So far as the requirements of s.459(3) are concerned it is clear that the CPSU is an applicant for the protected action ballot order in this matter and that the 30 day period referred to in subparagraph (1)(d)(i) has not previously been extended. Under s.459(3) of the Act FWA has a general discretion to extend the period in such circumstances.
[23] At the conclusion of the hearing of this matter I advised the parties that I intended to grant the CPSU application to extend the 30 day period. I was satisfied that I should exercise my discretion to extend the period for the following reasons:
• The evidence brought by the CPSU clearly showed that the CPSU had been diligently pursuing negotiations for a new agreement with DAFF since the declaration of the protected action ballot;
• There was no suggestion that the CPSU was, in any respect, in breach of good faith bargaining obligations;
• While the CPSU had taken some industrial action during the initial thirty day period a notice of intention to take other action had been withdrawn in an attempt to take advantage of what looked to be a favourable movement in the bargaining position of the employer; and
• The additional difficulties imposed on the ability of the CPSU to take industrial action by the requirement set out in the protected action ballot order that the notice period for the taking of proposed action be a period of seven days, the longest period allowed to be imposed under the legislation.
[24] I was not persuaded by the respondent’s arguments that I should exercise my discretion to refuse the CPSU application for the extension on the basis that:
• The CPSU had not made out a case for the extension;
• There had been a change in the composition of the workforce since the ballot was held; or
• The CPSU had failed to take advantage of the opportunity provided by the initial 30 day period to take industrial action.
[25] In my view the CPSU had made out a case for the extension of the 30 day period. Although bargaining had been progressing, and some industrial action had been taken, no agreement had been reached in the initial 30 day period and it appeared that further industrial action, including the imposition of indefinite bans, would be necessary in the union’s view if its claims were to be progressed. I was also satisfied that the union’s ability to organise and take industrial action had been severely hampered by the notice requirement imposed under the ballot order and that the union had been diligently pursuing negotiations for a new agreement and bargaining in good faith. In all these circumstances I was unable to conclude that the union should be forced to apply for a further protected action ballot order so as to be able to pursue a type of action authorised by the initial ballot order but not yet taken.
[26] I did not accept that the CPSU should be forced to a new protected action ballot because DAFF had employed an additional 175 meat inspectors since the ballot held in July. There was no evidence that these persons would be eligible to vote in any new ballot (i.e. that they would be members of the CPSU or represented by the CPSU) and, in my view, the suggestion made on behalf of the employer that the onus should be on the CPSU to prove that they would not, could not be sustained. In this respect I note the CPSU submission concerning the rules relating to the disclosure of the roll of voters compiled for protected action ballots. 17 In such circumstances it is unlikely that there could be any evidence to support a contention that a change in the composition of the DAFF workforce could affect the outcome of a vote of CPSU members.
[27] Nor was I convinced by the argument that I should refuse the application on the ground that the CPSU had had the opportunity to pursue all the authorised types of industrial action within the first 30 day period and did not take that opportunity. Where all types of authorised industrial action have been pursued in the 30 day period no application for extension would be necessary. Unless a union had been lax, or had failed to pursue the bargaining process at all in the initial 30 day period, I can see no reason this consideration should be given much weight in the exercise of the discretion to extend. I agree with the views expressed in earlier decisions that a union should not be penalised for failing to take industrial action in pursuit of a bargaining agenda.
[28] For the reasons set out above I decided to grant the CPSU application and extend the period during which protected action could be taken for a further 30 days from 11 August. That Order [PR513284] issued on 10 August 2011.
COMMISSIONER
Appearances:
Mr Kristin Barlow, Legal Officer,and Mr Lindsay Benfell, Senior Industrial Officer, Community and Public Sector Union, for the Applicant.
Mr John Fernon, of counsel, with him Mr Craig Rawson and Ms Sarah Wright, Australian Government Solicitor, for the Respondent.
Hearing details:
2011.
Canberra:
August, 9.
1 Exhibit DAFF 2.
2 Exhibit DAFF 1.
3 Exhibit DAFF 2.
4 Exhibit DAFF 3.
5 Exhibit DAFF 4.
6 Exhibit DAFF 5.
7 Maritime Union of Australia v DP World Adelaide Pty Ltd [2010] FWA 7638 (Hampton C); Minda Incorporated v Liquor, Hospitality and Miscellaneous Union [2010] FWA 3753 (Hampton C); Australian Workers’ Union v Tyco Water Pty Ltd [2009] FWA 512 (SDP Richards); Liquor, Hospitality and Miscellaneous Union v Griffith University [2010] FWA 2365 (SDP Richards); Transport Workers’ Union of Australia v Murray Goulburn Co-Operative Ltd [2011] FWA 1097 (Lewin C).
8 Transport Workers’ Union of Australia v Murray Goulburn Co-Operative Limited [2011] FWA 1097 (Lewin C).
9 Ibid at paras [28] - [36].
10 Australian Workers’ Union v Tyco Water Pty Ltd [2009] FWA 512 (SDP Richards) and Liquor, Hospitality and Miscellaneous Union v Griffith University [2010] FWA 2365 (SDP Richards)
11 Australian Workers’ Union v Tyco Water Pty Ltd [2009] FWA 512 (SDP Richards) and Minda Incorporated v Liquor, Hospitality and Miscellaneous Union [2010] FWA 3753 (Hampton C).
12 Maritime Union of Australia v DP World Adelaide Pty Ltd [2010] FWA 7638 (Hampton C).
13 Australian Workers’ Union v Tyco Water Pty Ltd [2009] FWA 512 (SDP Richards).
14 Transport Workers’ Union of Australia v Murray Goulburn Co-Operative Ltd [2011] FWA 1097 (Lewin C).
15 See PN446 & PN494.
16 PN470.
17 See PN434 where the CPSU representative made reference to s.467 of the Fair Work Act 2009.
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