CPSU, the Community and Public Sector Union v Commonwealth of Australia (represented by and acting through the Department of Immigration and Citizenship)
[2011] FWA 3924
•24 JUNE 2011
[2011] FWA 3924 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
CPSU, the Community and Public Sector Union
v
Commonwealth of Australia (represented by and acting through the Department of Immigration and Citizenship)
(B2011/3009)
COMMISSIONER DEEGAN | CANBERRA, 24 JUNE 2011 |
Proposed protected action ballot by employees of Commonwealth Government - Department of Immigration and Citizenship.
Introduction
[1] On 20 June 2011 CPSU, the Community and Public Sector Union (CPSU) made an application for a protected action ballot order pursuant to s.437 of the Fair Work Act 2009 (the Act). The CPSU seeks to ballot employees of the Commonwealth Department of Immigration and Citizenship (DIAC) who are CPSU members and who would be covered by the proposed enterprise agreement.
[2] The application was listed for hearing in Canberra on 22 June 2011. Witness statements were filed by Mr Richard Muffatti (CPSU Industrial Officer) 1 for the Applicant, and Mr Geoff McKinnon (Director DIAC Enterprise Agreement Team)2 for the Respondent. Both witnesses were subject to cross-examination at the hearing.
[3] At the outset of the hearing the representative of DIAC advised the Tribunal that DIAC would be opposing the application. At a later stage of the proceedings an application under s.443(5) of the Act was made by DIAC to extend the notice period for the taking of industrial action.
CPSU’s application under s.437 for a protected action ballot order
[4] In considering this matter I must apply s.443 of the Act which provides as follows:
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.
(4) If FWA decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:
(a) the person that FWA decides, under subsection 444(1), is to be the protected action ballot agent; and
(b) the person (if any) that FWA decides, under subsection 444(3), is to be the independent advisor for the ballot.
(5) If FWA is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.
Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.
Application made in accordance with s.437
[5] I am satisfied for the purposes of s.443(1)(a) that the application has been made in accordance with s.437 of the Act.
Genuinely trying to reach agreement
[6] The only other prerequisite for the making of the order is that I must be satisfied that the applicant has been, and presently is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
[7] In order to demonstrate that the CPSU had been genuinely trying to reach an agreement with DIAC the affidavit of Mr Muffatti attested to:
- The service of the CPSU claims on DIAC in February and March 2011; and
- Meetings held with DIAC on 16, 17, 23, 24, 29 and 30 March, 5 and 6 April, 19, 20, and 21 April and 2, 20 and 25 May 2011 for the purpose of trying to reach agreement on the terms of a new agreement.
[8] It was put for DIAC that while there was no dispute that the CPSU had, until 25 May 2011, been genuinely trying to reach agreement with the employer, the CPSU was not currently genuinely trying to reach such agreement. It was argued for DIAC that unless FWA was satisfied that the CPSU was, at the time of the application genuinely trying to reach such agreement, no protected action ballot order could be made.
[9] In support of its position DIAC filed a statement of evidence by Mr Geoff McKinnon, an employee involved in the agreement negotiations. Mr McKinnon’s evidence was directed at proving that:
- a CPSU representative, Mr Muffatti, had indicated at the meeting held on 25 May 2011 that there was little point in continuing discussions as the parties did not seem to be able to move from their stated positions;
- DIAC had determined in early June to put a proposed agreement to its employees for their consideration and a vote; and
- since early June CPSU activities had been directed at campaigning for a “no” vote in relation to the DIAC proposed agreement and had made no further attempts to “genuinely try to reach agreement” with DIAC.
[10] It was Mr Muffatti’s evidence that while he may have stated in the meeting on 25 May that further discussions seemed pointless given DIAC’s unwillingness to move from the stated position, his remark was merely part of the “cut and thrust” of bargaining and directed at gaining some movement from the employer. He claimed that while the CPSU had offered at least one compromise at the 25 May meeting, DIAC had not moved from its position. According to Mr Muffatti, at the end of the meeting he had asked DIAC representatives when it was intended that the parties meet again, but DIAC did not propose a date. It was also his evidence DIAC had indicated that it would get back to him about a number of matters raised at that meeting. Mr Muffatti’s evidence was that it was DIAC who had unilaterally decided to end the negotiations and proceed to put the agreement (containing the terms it supported) to a vote. It was also his evidence that the CPSU had indicated to DIAC that negotiations should continue and that the agreement proposed by DIAC was not supported.
[11] It was submitted by the CPSU that the legislative requirements had been made out and, in accordance with s.443(1), FWA was required to issue a ballot order. The CPSU denied that it was not currently genuinely trying to reach an agreement and relied on the evidence of Mr Muffatti and a number of authorities 3 to support its position.
[12] DIAC relied on the evidence of Mr McKinnon to support the contention that the CPSU had ceased negotiations on or about 25 May 2011 and since that time had directed its efforts to having the agreement put forward by DIAC rejected by staff. It was put that the consequent “radio silence”, so far as DIAC was concerned, could not constitute bargaining. 4 In those circumstances, it was argued, the CPSU was no longer genuinely trying to reach an agreement with DIAC and therefore did not meet the requirement set out in s.443(1) as it had made no further attempt to negotiate with DIAC. Some authorities were cited in support of this position.5
[13] In response to the submissions of DIAC, Mr Benfell for the CPSU noted that one of the cases relied upon by DIAC had been overturned on appeal 6 and that another7 was distinguishable on its facts. He reiterated that all the evidence was consistent with CPSU’s ongoing resolve to reach agreement on the terms of a new agreement with DIAC.
[14] Having heard the evidence and submissions of both parties I indicated that I was in a position to give my decision on the application immediately.
[15] I noted that I did not consider the CPSU campaign for a no vote against the proposed DIAC agreement as an indication that the organisation was no longer genuinely trying to reach agreement with DIAC. In my view, in circumstances where DIAC had decided to cease negotiations (in this respect I accept the evidence of Mr Muffatti), and proceed to put an agreement in terms acceptable to it to the staff for a vote, CPSU had little choice but to attempt to defeat the approval of that agreement in order to continue negotiations with DIAC in order to reach agreement on terms acceptable to the organisation and its members.
[16] It was also my view that the making of the application for the protected ballot order was consistent with the conclusion that the CPSU was currently trying to reach an agreement with DIAC. I did not accept the DIAC contention that the application was premature or that there was authority for the proposition that such an application could not be made once an approval process for an agreement had commenced. In this respect I drew attention to the provisions of s.417 of the Act which prohibits the taking of protected action only after an enterprise agreement has been approved by FWA.
[17] It is unnecessary for me to deal further with the arguments put as these were sufficiently addressed during the hearing.
[18] On the basis of all the evidence before me I was satisfied that the CPSU has been, and is, genuinely trying to reach agreement with DIAC and that I intended, as required by the legislation, to issue the protected action ballot order sought by the CPSU.
DIAC’s application under s.443(5) to increase to the notice period
[19] Upon being advised that I intended to issue the order as sought by the CPSU, DIAC made an application to extend the notice period required for any resulting industrial action from three to five working days.
[20] In considering whether or not to require a longer period of written notice prior to taking protected industrial action under a protected action ballot I must apply s.443(5) of the Act which provides as follows:
443 When FWA must make a protected action ballot order
...
(5) If FWA is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.
[21] The DIAC application was not opposed by the CPSU. On the basis of submissions made in support of the application by the representative for DIAC, and my own knowledge of the immigration and border protection duties performed by DIAC employees, I was satisfied, for the purposes of s.443(5), that exceptional circumstances exist which justify the period required for written notice of industrial action being increased from 3 to 5 working days.
The Order
[22] Having decided that s.443(1)(a) and (b) had been complied with, I was required to make the protected action ballot order as sought by the CPSU. The order, which issued separately and preceded these written reasons for decision, specified that the period of notice required to be given before the taking of industrial action is five (5) working days.
COMMISSIONER
Appearances:
Mr Lindsay Benfell, CPSU Senior Industrial Officer, for the Applicant.
Mr Luis Izzo, Clayton UTZ, for the Respondent.
Hearing details:
2011.
Canberra:
June, 22.
1 Exhibit CPSU 1.
2 Exhibit DIAC 1.
3 Total Marine Services Pty Ltd v Maritime Union of Australia [2009] FWAFB 368 (VP Watson, SDP Hamberger, Roberts C); John Holland Pty Ltd v AMWU & Ors [2010] FWAFB 526 (Giudice, SDP Watson & Blair C) and J.J. Richards & Sons Pty Ltd v Transport Workers’ Union of Australia [2010] FWAFB 9963 (VP Lawler, SDP O’Callaghan & Bissett C).
4 PN530.
5 Sucrogen Australia Pty Ltd (formerly Renewable & Sugar Services Pty Ltd) v AMWU & Ors [2010] FWA 3905 (SpencerC) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2009] FWA 136 (SDP Drake).
6 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2009] FWA 136 (SDP Drake) overturned on appeal in Australian Postal Corporation v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2009] FWAFB 599 (SDP Acton, DP Hamilton & Blair C).
7 Sucrogen Australia Pty Ltd (formerly Renewable & Sugar Services Pty Ltd) v AMWU & Ors [2010] FWA 3905 (Spencer C) distinguished in AMWU & CEPU v Tully Sugar Limited [2010] FWA 5036 (Spencer C).
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