Independent Education Union of Australia v Stuartholme School & Ors (B2009/10965), (B2009/10966), (B2009/10967), (B2009/10968), (B2009/10969), (B2009/10970), (B2009/10971), (B2009/10972), (B2009/10973),...
[2009] FWA 985
•9 NOVEMBER 2009
[2009] FWA 985
The attached document replaces the document previously issued with the above code on 9 November 2009.
The references to s.431 of the Fair Work Act 2009 in paragraphs 19, 20, 28, 40, 42 and 44 have been removed and replaced with references to s.437 of the Fair Work Act 2009
Caroline O’Connor
Associate to Senior Deputy President Richards
Dated 12 November 2009
[2009] FWA 985 |
|
DECISION |
Fair Work Act 2009
s.448 - Application for revocation of protected action ballot order
v
Stuartholme School & Ors
(B2009/10965), (B2009/10966), (B2009/10967), (B2009/10968), (B2009/10969), (B2009/10970), (B2009/10971), (B2009/10972), (B2009/10973), (B2009/10974), (B2009/10975), (B2009/10976), (B2009/10977), (B2009/10978), (B2009/10979),
(B2009/10980)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 9 NOVEMBER 2009 |
Summary – revocation of protected ballot orders – ministerial declaration - single interest authorisation – identity of employer - whether protected industrial action available – does a union have to bargain with a single interest employer? – circumstances in which a new ballot application may be necessary - reciprocal good faith bargaining obligations in relation to employers who are subject to a single interest employer authorisation?
[1] On 3 November 2009 the Independent Education Union of Australia, Queensland and Northern Territory Branch (“the IEUA”) made application to Fair Work Australia (“FWA”) to revoke 16 protected ballot action orders, under s.448 of the Fair Work Act 2009 (“the FW Act”), that I issued on 20 October 2009.
[2] The protected ballot action orders relate to 13 of 23 Queensland Catholic Education Diocesan and Religious Institutes employing authorities, which employ over 15,000 employees in some 285 Catholic schools.
[3] By way of further background, I should add that there are a number of Diocesan employing authorities which operate primary and secondary schools across Queensland. Edmund Rice Education (formerly the Christian Brothers) is an employing authority which runs a smaller number of schools as well. The other employing authorities are the various catholic orders which run single site schools across Queensland. Together, the various catholic orders (with the exclusion of one only 1) and Edmund Rice Education form the Religious Institutes schools across Queensland.
[4] The revocation orders for which application was made were in respect of the orders made in each of the following instances: B2009/10862 (PR990049), B2009/10858 (PR990045), B2009/10856 (PR990043), B2009/10851 (PR990039), B2009/10849 (PR990037), B2009/10857 (PR990044), B2009/10866 (PR990053), B2009/10863 (PR990050), B2009/10859 (PR990046), B2009/10853 (PR990074), B2009/10865 (PR990052), B2009/10854 (PR990041), B2009/10861 (PR990048), B2009/10864 (PR990051), B2009/10860 (PR990047) and B2009/10855 (PR990042).
[5] Because this was the fourth application in relation to the above named employing authorities in respect of various protected action ballots, I took the unusual step of convening a hearing in relation to the application so that both the IEUA and the representative of the employing authorities might have a common understanding of the course that was being taken and the where both parties now stood in relation to the earlier protected action ballot applications. The latter matter was an issue of concern for the reason that the applications now before me are supplementary to other orders applying to various other Diocesan and Religious Institute employing authorities which have been made at an earlier date, and for which the voting has taken place.
[6] I am also aware that protected industrial action has taken place (on 28 October 2009) in relation to some of those employing authorities, following a number of ballots being declared positively by the Australian Electoral Commission.
[7] The application that is now before me is made pursuant to section 448 of the FW Act which reads as follows:
“448 Revocation of protected action ballot order
(1) An applicant for a protected action ballot order may apply to FWA, at any time before voting in the protected action ballot closes, to revoke the order.
(2) If an application to revoke a protected action ballot order is made, FWA must revoke the order.”
[8] This application on the IEUA’s part reflects uncertainties about the impact of the new statutory regime which have troubled both the IEUA and the employing authorities as to their rights and obligations.
[9] In its broadest terms, those concerns appear to arise from the interaction of Division 8 of Part 3-3 of the FW Act (Protected Action Ballots) with Division 10 of Part 2-4 of the FW Act (Single Interest Employer Authorisations).
[10] At the time the applications for protected action ballot orders were made in respect of all 23 of Catholic Education employing authorities (and in the case of the 13 employing authorities cited above, before the vote for the protected action ballot had closed), the IEUA was bargaining for a proposed enterprise agreement in respect of each of the 23 employing authorities. That is, the protected action ballot orders applied to each employing authority.
[11] Prior to the filing of the applications for protected action ballot orders, the 23 employing authorities applied to the Minister for Employment and Workplace Relations (“the Minister”) for a Ministerial declaration under s.247 of the FW Act that they may bargain together for an agreement. At the time of the applications for protected action ballot orders, the employing authorities advised they awaited a response from the Minister in relation to the application under s.247 of the FW Act.
[12] The Minister subsequently made two declarations (which are undated but which appear to have been made public on 23 October 2009). One declaration relates to the Diocesan employing authorities and the other Religious Institutes employing authorities.
[13] The employing authorities in relation to both Ministerial declarations have subsequently made applications under s.248 of the FW Act for single interest employer authorisations. These applications will be dealt with by separate decisions.
[14] What is salient in the current application is the consequence for the protected action ballot orders of any single interest employer authorisation that may be made.
[15] Elementally, the consequence of a single interest employer authorisation is that it allows two or more employers to bargain together for a single enterprise agreement.
[16] Section 247(1) of the FW Act makes provision for such an application to be made to the Minister for a declaration. The declaration may be made under s.247 (3) of the FW Act, with the effect that two or more employers “may” agree to bargain together for an enterprise agreement (once a single interest employer authorisation is made by FWA, under s.248 of the FW Act).
[17] The agreement, therefore, that is to be bargained for (assuming that all the bargaining representatives intend to bargain in the same context) is one that covers the employers designated in the Ministerial declaration and for which authorisation for those employer to bargain together (for that agreement) is obtained by FWA. The agreement contemplated in the single interest employer authorisation must be taken as being one that is sought by and through the collective action of the relevant employers (and not some other agreement).
[18] If that be the case, does a protected action ballot order obtained in advance of any authorisation of the kind set out above retain its original statutory purpose when the authorisation is made?
[19] The answer to this question may reside in the intention of the bargaining representative who made the application under s.437 of the FW Act.
[20] Section 437 of the FWA Act reads relevantly as follows:
“(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.
[…]
440 Notice of application
Within 24 hours after making an application for a protected action ballot order, the applicant must give a copy of the application to the employer of the employees who are to be balloted, and:
(a) if the application specifies a person that the applicant wishes to be the protected action ballot agent—that person; or
(b) otherwise—the Australian Electoral Commission.
[…]
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.
[…].” (my emphasis)
[21] It appears to that the elemental preconditions (putting aside procedural requirements) of an application for a protected action ballot are that:
(a) it be made by a bargaining representative of employees who will be covered by a proposed enterprise agreement;
(b) the bargaining representative must have genuinely tried and be genuinely trying to reach agreement an agreement with the employers of the employees who are to be balloted; and
(c) the applicant discloses the nature of the industrial action by way of the questions to be put to employees for purposes of authorising the ballot.
Can protected industrial action be taken in respect of a proposed agreement under a single interest employer authorisation?
[22] It appears to me that a bargaining representative may make an application for protected action ballot orders where the employers may be the subject of a single interest employer authorisation.
[23] My reason for thinking this to be so is that a single interest employer authorisation is not a proscribed form of agreement for purposes of s.437(2) of the FW Act. The only agreement forms that are proscribed by the FW Act relates to greenfield site agreements and multi-employer agreements.
[24] It follows that a bargaining representative of the requisite type is not precluded from making an application under s.437(1) of the FW Act in relation to employers that are authorised under s.248 to bargain together for an agreement.
What is the status of a protected action ballot order when the employer subsequently become subject to an authorisation made under s.248 of the FW Act?
[25] It appears to me that should a bargaining representative seek to continue to make a single enterprise agreement with the employers who have become the subject of a single interest employer authorisation, then the protected action ballot orders it has or may obtain in relation to those single employers will continue to provide the legislative support for any subsequent protected industrial action.
[26] It does not appear to me that s.437 of the FW Act presupposes that the bargaining representatives must be bargaining for a particular or common form of enterprise agreement. The terms of s.437 of the Act are not prescriptive and refer only to indefinite articles “a” or “an” when referring to an agreement. Such an agreement is any type of enterprise agreement (as detailed at s.172 of the FW Act) other than those prescribed in s.437(2) of the FW Act.
[27] It follows that the premise to any existing protected action ballot orders as they apply to separate employers are not set aside because two or more of those single interest employers are able to bargain together for a single enterprise agreement. Of course, my comment in this regard is conditional upon the bargaining representative who made the application for the original protected action ballot orders continuing to seek to make a single enterprise agreement with discrete, separate employers; which is a matter to which I will return below.
[28] Further, the only substantive investigation which FWA must undertake in relation to an application under s.437 of the FW Act is in relation to the genuineness of the continuing effort by the relevant bargaining representative to reach an enterprise agreement with the separate employer. The FW Act does not appear to require that the genuineness of that effort must be directed at the agreement outcome sought by the single interest employers, or that it must keep in step with those desired outcomes as they change.
[29] On the face of it, it does not appear to me that any prior protected action orders are vitiated where those orders apply to various employers in respect of each of whom a bargaining representative seeks to make a single enterprise agreement, and those various employers subsequently make an application under s.247 of the FW Act for a Ministerial declaration and then under s.248 of the FW Act for a single interest employer authorisation.
[30] The fact that various employers may now bargain together for a single enterprise agreement does not mean that any prior findings of satisfaction in relation to all the preconditions to the making of the prior protected action ballot orders are redundant, or that the orders as they were made cannot have continuing application to the employers (because those employers may now bargain together).
[31] The orders that were made are not contingent, it would appear, on any subsequent changes in the modus operandi of the employer bargaining representatives. The following discussion would appear to support this conclusion.
Does a single interest employer authorisation require a bargaining representative to bargain for a single enterprise agreement that covers all the employers subject to the authorisation?
[32] It does not appear to me that the FW Act places any obligation on a non-employer bargaining representative to bargain within the context of a single interest employer authorisation, unless it agrees to do so. That is, while relevant employers may bargain together, there is no statutory expectation that the outcome must be a single enterprise agreement covering all the employees of the relevant employers who are acting as a single interest. This is why s.247(3) of the FW Act states that the “Minister may declare in writing that the relevant employers may bargain together for the agreement” (my emphasis).
[33] A single interest authorisation has the effect, it seems, of facilitating a particular bargaining process which may result in a single enterprise agreement (s.172(5)(c) of the FW Act); it does not mandate an outcome (any more for the employers who are the subject of the authorisation under s.248 of the FW Act than the other bargaining representatives).
[34] It may be the case that a bargaining representative who has made a successful application for bargaining orders find itself, as the IEUA has in the current case, in a situation in which various employers with which it was bargaining separately (and whose employees have authorised by a ballot the taking of protected industrial action) are subsequently able to bargain together.
[35] Despite that, my tentative view is that it would not necessitate the recommencement of the bargaining process in relation to the single enterprise agreement now sought by the various employers. The existing bargaining orders still apply to the same employers in respect of whose employees they were originally made.
[36] Indeed, in my preliminary view at least, the FW Act goes to some lengths to retain the identity of the separate employers (despite an authorisation being made under s.248 of the FW Act). Item 1033 of the Explanatory Memorandum put it this way:
“The employers specified in a single interest employer authorisation are each single interest employers. Each employer is treated as separate employer in Part 2-4 (e.g., for the purposes of the pre-approval steps in clause 180). For example, each employer is required to take reasonable steps to ensure that employees are given a copy, and have access to, the agreement during the access period (see sub clause 180(2)).”
[37] In this way, the identity of the employer who is subject to the protected industrial action consequent of a protected action ballot is retained notwithstanding any authorisation being made under s.248 of the Act.
[38] In much the same way, such an authorisation does not create an amorphous employer identity. Whilst the FW Act allows for applications to be made on behalf of the single interest employers who are subject to a single interest employer authorisation, it does not alter the identity of the single interest employer. Subject to the discussion below, this means that a pre-existing ballot order that applies to a separate employer is not disturbed by that employer subsequently being subject to an authorisation under s.248 of the Act.
What happens to a prior protected action ballot order when the bargaining representative of the employees to be covered by the agreement subsequently elects not to make a single enterprise agreement with each separate employer, and instead seeks to make a single agreement with those same employers who are now the subject of an authorisation under s.248 of the Act?
[39] An application for a protected action ballot order is predicated upon a bargaining representative stipulating (impliedly in most cases) the form of the agreement which the employees it represents will be covered by. As discussed above, this may be single enterprise agreement made in relation to a discrete, separate employer, or a single enterprise agreement made in relation to two or more employer who is able to bargain together for an agreement because they are subject to a single interest employer authorisation.
[40] Section 437 of the FW Act reads relevantly as follows:
“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”.
[41] Section 443 of the FW Act relevantly reads as follows:
“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.
[42] It seems to me that an application under s.437 of the FW Act is premised upon:
- the application being made in relation to a proposed agreement which is intended to cover the employees it represents; and
- it is in respect of that agreement that the bargaining representative has and is genuinely trying to reach agreement.
[43] If a bargaining representative has had a protected action ballot order made in relation to a proposed single enterprise agreement with a separate employer, it would appear that that order would not be a relevant order in the event the bargaining representative subsequently determined it would seek a single agreement with two or more employers (even if any bargaining orders that had been made previously applied to those same employers).
[44] The reason for this is that the bargaining representative has changed the form of the proposed agreement by altering its coverage so that the proposed agreement to cover the employees it represents is changed from that which was the proposed agreement that was the premise for the protected action ballot order under s.437 of the FW Act.
[45] Further, the order as made was also premised on the bargaining agent satisfying Fair Work Australia that it has and is genuinely trying to reach agreement. That effort, as it were, must be in relation to a single enterprise agreement made with a separate employer. If the bargaining representative were to change its intention and seek to make a single enterprise agreement with two or more employers subject to a single interest employer authorisation, it must be taken to have never satisfied the requirements of s.443(1)(b) of the FW Act, and the protected action ballot order as made would not apply to any industrial action it took in relation to those employers for that (new) purpose.
[46] Of course, a question may also arise as to whether the bargaining representative’s application has met has met the requirements of s443(3)(d) of the FW Act, which demands that an application must disclose:
(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
[47] If the coverage of the proposed agreement was changed, then the nature of the proposed industrial action must also have changed 2 (and the questions put to the employees must be re-framed accordingly).
[48] Consequently, again, this leads to a suggested conclusion that a protected action ballot order may only apply in relation to the form of the proposed agreement upon which it was originally premised.
[49] It follows therefore that in the event the bargaining representative elects to make a different agreement with different coverage, then it would need to seek protected ballot action orders in relation to that proposed agreement (and of course establish for the purposes of s.443(1)(b) of the FW Act that it has and is genuinely trying to reach agreement in relation to that proposed agreement).
[50] There may be sound reasons to revoke any prior protected ballot orders (so as to avoid any scope for confusion as to what orders apply to what industrial action directed to what form of proposed agreement). However, there would not appear to be any mandatory statutory requirement to revoke any such prior orders.
[51] The above discussion is tentative in nature and it has not been aided by any submissions of the IEUA or the representatives of the employing authorities.
How is it to be evidenced that an employee organisation elects to make a different proposed agreement?
[52] The circumstances in which an employee organisation elects to make a different proposed agreement than that to which any protected action ballot orders may apply will be a matter of evidence at the time. It may not always be apparent that an employee organisation is seeking a single enterprise agreement with a separate employer at a time when an employer is subject to an authorisation under s.248 of the FW Act.
[53] However, the fact that the good faith bargaining requirements of the FW Act continue to apply during periods of industrial action means that an employer may convene a meeting with the employee bargaining representatives at any time or seek by any other means clarification of the employee organisation’s intentions. Under the good faith bargaining requirements of the FW Act it would appear that an employer, by these avenues, might readily ascertain the bargaining intention of the employee organisation and the currency of the protected action ballot orders.
How do reciprocal good faith bargaining obligations apply in relation to employers who are subject to a single interest employer authorisation?
[54] It appears to me that the requirements of s. 228 of the FW Act, which set out the good faith bargaining requirements with which bargaining representatives must comply, may give rise to difficulties as to reciprocal bargaining obligations when the various relevant employers are subject to a single interest employer authorisation.
[55] This is because while the bargaining representatives will be bargaining for a single enterprise agreement, they must nonetheless bargain with one another as separate bargaining representatives. Given that the only ostensible benefit of a single interest employer authorisation is the efficiency in bargaining it provides multiple employers, it is not to be expected that each and every employer subject to an authorisation will be a separate bargaining representative for or a physical presence in the bargaining process in relation to the proposed single agreement.
[56] Section 248 of the FW Act, does not require that employers who are subject to an authorisation under s.228 of the Act must nominate a bargaining representative under s.176(1)(d) of the FW Act. Section 248(2)(c) of the FW Act only permits the relevant employers to nominate a person (who must be specified in the applicable authorisation made) who may make applications on their behalf. Such a person is not a bargaining representative acting on behalf of the relevant employers for the purpose of s.176 of the FW Act.
[57] To avoid unwanted procedural complexities in the good faith bargaining system, employers who are subject to an authorisation under s.248 of the FW Act might ordinarily nominate one or more bargaining representatives in writing under s.176(1)(d) of the FW Act and (although I note the FW Act does not require it) notify the other bargaining representatives of their identity.
CONCLUSION
[58] I am uncertain as to whether the IEUA now seeks to make a single enterprise agreement with all the employees who may be subject to single interest employer authorisation that I might make. That is a matter for itself. As I have explained above, despite the prospective existence of a single interest employer authorisation, an employee bargaining representative may seek to make the form of agreement it prefers (and seek protected action ballot orders in relation to that particular form of agreement).
[59] Notwithstanding this, the IEUA has made the application under s.448 of the FW Act and as a consequence I am obligated to revoke the protected action ballot orders that are specified in the application.
[60] The reason for this is as follows.
[61] In the current case, whilst I issued the orders in respect of the 13 employing authorities on 20 October 2009, the voting in the protected action ballot had not occurred prior to the application being made to FWA. Consequently, the only precondition to the application has been discharged and s.448 (1) of the FW Act is satisfied.
[62] Because the requirement of s.448 (1) of the Act is satisfied, s.448 (2) of the FW Act mandates that Fair Work Australia must revoke the order. There is no discretion in this regard.
[63] Consequently, I issued revocation orders in respect of each of the above named Catholic Education employing authorities on 5 November 2009 and the revocation orders came into operation on that day.
SENIOR DEPUTY PRESIDENT
Appearances:
J Spriggs for the Independent Education Union of Australia
C O’Neill for the Queensland Catholic Education Commission
Hearing details:
Brisbane.
2009:
5 November.
1 One such order historically has a closer industrial relationship with Diocesan employing authorities than the Religious Institutes.
2 In relation to scale, purpose and subject of the proposed industrial action.
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