Liquor, Hospitality and Miscellaneous Union
[2009] FWA 920
•3 NOVEMBER 2009
[2009] FWA 920 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
(B2009/10901)
SENIOR DEPUTY PRESIDENT O'CALLAGHAN | ADELAIDE, 3 NOVEMBER 2009 |
Proposed protected action ballot by employees of Coca-Cola Amatil (Aust) Pty Ltd.
[1] On 23 October 2009 the Liquor, Hospitality and Miscellaneous Union (LHMU) lodged an application for a protected action ballot order pursuant to section 437 of the Fair Work Act 2009 (the Act). The application was made with respect to employees of Coca-Cola Amatil (Aust) Pty Ltd (CCA) employed at 33-43 Port Road, Thebarton and at Whicker Road, Gillman, in South Australia, whose terms and conditions of employment are governed by the Aerated Waters Manufacturing Award as a notional agreement preserving State Award, and who are members of the LHMU and who will be covered by the collective agreement proposed by the LHMU.
[2] The application was the subject of hearings on 27 and 28 October 2009. At these hearings, Mr Love appeared for the LHMU. Mr Gotting and Ms Perry, of counsel, appeared for CCA.
[3] The background to the application has been largely set out in a number of decisions relative to various other applications.
[4] CCA has traditionally entered into agreements within the South Australian jurisdiction. The last such agreement was the Coca-Cola Amatil (Aust) Pty Ltd (South Australia) Enterprise Agreement 2005-2008 South Australian Operations (the 2005 Agreement). The 2005 Agreement, as did its predecessor, covered manufacturing, warehousing and maintenance employees. It achieved its nominal expiry date on 30 September 2008.
[5] CCA and the LHMU, in concert with the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), engaged in extensive negotiations in 2008 directed toward a new agreement. These negotiations did not result in any form of agreement and were terminated by CCA in late 2008. In early 2009 CCA advised the three unions of its intention to have separate agreements relating to manufacturing, warehouse and maintenance worker functions. CCA put forward non-union agreements to employees in each of these functional areas in February 2009 and again in June 2009. On both occasions, these agreement proposals were rejected by employees.
[6] The 2005 Agreement was terminated by Order 1 issued on 11 May 2009. The LHMU, AMWU and the CEPU subsequently surveyed their members and established broad employee support for a new single enterprise agreement. In July 2009 the LHMU sought to restart the stalled bargaining process. CCA declined to initiate such a bargaining process.
[7] In August 2009 CCA issued Notices of Representational Rights to its employees in each of these functional work areas. In these Notices, it reaffirmed its intention to bargain for separate agreements for the manufacturing, warehousing and maintenance functions. These Notices were issued shortly after the LHMU lodged an application for a Majority Support Determination. The Majority Support Determination application was refused on 19 August 2009 2.
[8] The LHMU has also sought Scope Orders and Bargaining Orders. These have been addressed in separate decisions 3. No such orders have been issued as yet.
[9] On 21 October 2009 CCA lodged an application pursuant to section 240 of the Act, through which it sought the assistance of Fair Work Australia in negotiating an agreement with the LHMU. The listing of a conference to deal with that matter has been deferred pending the conclusion of this application.
[10] The LHMU asserts that this application has been properly made pursuant to section 437 and that it has been, and it is, genuinely trying to reach an agreement with CCA. The LHMU assert that the granting of a protected action ballot in this situation would be consistent with the objects of Division 8 of Part 3-3 set out in section 436.
[11] Relative to the extent to which the LHMU has been, and is genuinely trying to reach agreement, the LHMU referred to the 2008 negotiations, its concern subsequent to the termination of the 2005 Agreement and its understanding of the reluctance of CCA to commence negotiations. The LHMU submitted that, consistent with the position adopted by a Full Bench of Fair Work Australia in Total Marine Services Pty Ltd v Maritime Union of Australia 4 (TMS), a log of claims had been submitted and extensively discussed and a draft agreement had also been provided and discussed. The LHMU submitted that this draft agreement did not contain substantial terms that were not permitted matters. Specifically, the LHMU submitted that this draft did not incorporate a restriction on CCA’s capacity to engage labour hire employees but simply established a consultative requirement aimed at improving employee job security. The LHMU relied on the High Court decisions in R v Commonwealth Industrial Court Judges; Ex parte Cocks and Others5 (Cocks) and R v Moore and Others; Ex parte Federated Miscellaneous Workers’ Union of Australia6 (Moore) to support its position that the provisions sought did not qualify CCA’s capacity to engage a labour hire contractor. The LHMU also assert that, notwithstanding that it was bargaining in good faith, the Fair Work Australia decision in TWU v CRT Group Pty Ltd7 (TWU) should be followed, such that the concept of genuinely trying to reach agreement did not equate with good faith bargaining.
[12] The LHMU relied on all of the evidence put to me in the earlier matters and the evidence of its organiser responsible for the CCA negotiations, Mr Watson.
[13] Mr Watson's evidence went to summarise the negotiations since August 2009 which have involved some 7 to 8 meetings. He explained that a hiatus in the meeting program reflected planned leave taken by the CCA negotiators and himself.
[14] Mr Watson's evidence was that, after the initial meeting with CCA for the purposes of programming discussions, the LHMU members had approved a revision of the log of claims served on CCA in 2008. The LHMU agenda was specified to CCA at the second meeting and was subsequently further discussed.
[15] Mr Watson referred to a draft agreement provided to, and discussed with, CCA on 20 October 2009 and two further discussions with regard to the contentious issue of 12 hour shifts, on 22 October 2009. He asserted that CCA had been given time to respond to this draft agreement proposal which was a working document and to the 12 hour shift proposal.
[16] Mr Watson's assessment of the negotiations to date was to the effect that, while the LHMU claims on CCA were outstanding, there had been constructive discussions relative to a great many of these issues. Mr Watson advised that the principal outstanding issues were related to:
- The CCA 12 hour shift proposal,
- utilisation of labour hire,
- casual employment,
- wages, and
- union related issues
[17] Subsequent to the LHMU lodging this application, Mr Watson confirmed to CCA, the LHMU's desire to continue to meet and anticipated that a meeting scheduled for 28 October 2009 would proceed.
[18] Mr Watson's evidence was that the LHMU was not knowingly seeking unlawful or prohibited content in the proposed agreement and that the LHMU was continuing to approach the negotiations on the basis that it was receptive to consideration of CCA proposals.
[19] CCA opposed the protected action ballot order. Whilst there was no dispute that the application had been properly made pursuant to section 437, CCA argued that Fair Work Australia could not be satisfied that the LHMU had been, and was genuinely trying to reach agreement consistent with section 443(1)(b).
[20] In this respect, CCA assert that the clause dealing with the use of labour hire employees in the LHMU draft agreement did not constitute a permitted matter such that, on the approach recently adopted by a Full Bench of FWA in Australian Postal Corporation v CEPU 8 (CEPU), the LHMU was not genuinely trying to reach an agreement.
[21] Secondly, CCA argued that whilst it did not suggest that the concept of good faith bargaining should be conflated with the concept of genuinely trying to reach an agreement, the LHMU behaviour was inconsistent with good faith bargaining such that it could not be said to be genuinely trying to reach an agreement.
[22] Thirdly, CCA argued that in the days immediately prior to the lodgement of the protected action ballot application, the LHMU had not been genuinely trying to reach an agreement.
[23] Mr Sinainou, the Operations Manager, South Australian Supply Chain for CCA gave evidence with respect to the meeting on 20 October 2009. This was to the effect that Mr Watson advised that his members had, some weeks earlier, approved a protected action ballot application which would be made in the event that insufficient progress was made in the negotiations. Mr Sinainou’s evidence detailed the matters, including the 12 hour shift proposal and the LHMU draft agreement, discussed at this meeting. He also outlined the CCA position subsequent to this meeting, including what he described as inadequate time to properly respond to the LHMU draft agreement.
Findings
[24] Section 443 relevantly states:
“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.”
[25] Where Fair Work Australia is satisfied that these two prerequisites have been met, a protected action ballot order must be issued.
[26] Given the agreement of the parties that the application was properly made pursuant to section 437, the only issue is the extent to which I am satisfied that the LHMU has been, and is continuing to genuinely try to make an agreement.
The Contracting Provision
[27] The LHMU claims made on CCA detail a substantial list of matters. The only matter which I understand gives rise to a question about what could be included in an agreement is item 7 "Job security to be ensured by Wages and conditions parity for third-party labour hire contractors engaged by CCA".
[28] The draft agreement provided to CCA by the LHMU on 20 October 2009 represents the current claims made for inclusion in an agreement. The claim with respect to contract labour hire is set out below:
“29.2.1 The Company retains the right to use third party contract labour to cover unplanned absences where it is unable to fill that position with a CCA casual employee. Where the absences are unplanned, there is no requirement for consultation.
29.2.2 Except as provided in clause 29.3.3, where there is a planned requirement for third party contract labour employees, the Company will refer this matter to the Job Delegate(s). For the purposes of discussion, the Company will provide relevant information.
29.2.3 If, after consultation, the Employer engages contractor(s), those contractors must be afforded the same terms and conditions of employment as they would receive if they were engaged as employees performing the same work.”
[29] In CEPU the Full Bench considered the operation of this part of the Act and the Explanatory Memorandum. It concluded:
“[43] It is apparent that the scheme of the FW Act is that the substantive terms of an enterprise agreement are to be about permitted matters. Since an enterprise agreement is made by employees approving a proposed enterprise agreement, it follows that the substantive terms of a proposed enterprise agreement are also to be about permitted matters.
[44] As a result, an applicant for a protected action ballot order pursuing a claim as a substantive term of a proposed enterprise agreement which is not about a permitted matter is not genuinely trying to reach an agreement with the employer of the employees to be balloted.”
[30] In this context, the issue is whether there is a substantial term of the proposed agreement which is not about a permitted matter.
[31] The third party contract labour hire clause sought by the LHMU is not specifically identified by the LHMU as one of the clauses relative to which it seeks further negotiations. However the evidence of Mr Watson was that the LHMU remained open to negotiations with respect to the overall draft agreement.
[32] On its plain words, the provisions sought differentiated between the use of third party contract labour to cover planned and unplanned absences. There are clearly no restrictions on CCA’s capacity to utilise third party contract labour to cover for unplanned absences.
[33] The clause establishes two obligations with respect to the use of third party contract labour hire to cover for planned absences. Firstly, CCA is required to refer this matter to the Job Delegates - presumably for the purposes of discussion and consultation. Secondly, the clause requires that those contractors must receive the same employment benefits as CCA employees.
[34] It is more convenient to deal with this second aspect initially. In the matters of Schefenacker Vision Systems Australia Pty Ltd, AWU, AMWU Certified Agreement 2004 and Rural City of Murray Bridge Nursing Employees, ANF (Aged Care) - Enterprise Agreement 2004 and La Trobe University Children's Centre Enterprise Bargaining Agreement 2004 (hereinafter referred to as ‘Schefenacker') a Full Bench of the Australian Industrial Relations Commission considered a comprehensive contracting provision proposed for inclusion in an agreement in the context of the then applicable legislative requirements, that the terms of an agreement pertained to the relationship between employers and employees. Whilst I will return shortly to the broader aspects of the contracting provisions considered in Schefenacker, the particular provision relevant to the obligation that the third party contract employees receive the same terms and conditions of employment as CCA employees was, in Schefenacker set out in the following terms:
“The Company will instruct the labour hire agencies to increase the wage rate of their employees working at Schefenacker Vision Systems Australia by the same percentage that is listed in this Agreement.”
[35] The Full Bench in Schefenacker considered the High Court decisions in Cocks and Moore and an earlier Australian Industrial Relations Commission decision in Re National Transport Operations Pty Ltd Certified Agreement 2002. It concluded:
“[83] …. The intent of cl.17.6 is that employees of labour hire agencies working at Schefenacker should receive the same increase as the Schefenacker employees will receive under the agreement. This is sought to be achieved by obliging Schenefacker to give that directive to the agencies. Whether that means will be effective or not, the intent is that the relationship between the cost of labour supplied by the agencies and the cost of the labour of Schefenacker's employees will be relevantly the same after the agreement as it was before. For that reason we think that the sub-clause pertains to the relationship between Schefenacker and its employees. It directly concerns the security of employment of the employees covered by the agreement.”
[36] I have adopted this approach such that I do not consider that the proposed requirement that contractors be afforded the same terms and conditions of employment as CCA employees to be a term which, in the application of the approach set out in CEPU, is a substantial term which is not about a permitted matter. It follows that this aspect of the LHMU draft does not impede on the extent to which the LHMU is genuinely trying to reach an agreement.
[37] The remaining issue relates to the initial requirement that CCA discuss and consult with Job delegates about planned requirements for third-party contract labour and, consistent with the proposed clause, engage contractors after this consultation process.
[38] The LHMU position was that this clause did not restrict CCA’s capacity to engage third-party labour hire contractors, that the consultation and discussion requirement was directed toward Job security issues and that, in the event that consultation did not occur, this did not stop CCA from engaging a third-party labour hire contractor.
[39] The CCA position was that the provision required consultation and discussion before a third-party labour hire contractor could be engaged. Further, that in the event of a dispute over the extent to which the consultative requirement had been met, the dispute resolution process of the draft agreement would need to be followed with a consequent potential for further restrictions in the implementation of such a contracting arrangement.
[40] I note that the dispute resolution provisions proposed in the LHMU draft agreement provides for the progressive escalation of a matter with CCA and the LHMU before a dispute can be referred to Fair Work Australia. Fair Work Australia would then be empowered to mediate or conciliate, make a recommendation or express an opinion, or arbitrate the matter. The dispute resolution provisions sought do not include a provision which prohibits CCA from implementing a third-party contracting arrangement whilst a dispute over consultation is being resolved, although it is quite conceivable that concerns could be raised in this respect.
[41] In CEPU the Full Bench concluded:
“[57] Contractor provisions requiring Australia Post to advertise every position internally and to only contract out a position if it is not wanted by an Australia Post employee are “provisions restricting or qualifying the employer’s right to use independent contractors”. The CEPU sought such provisions as a substantive term of the proposed enterprise agreement. The claim was not minor, trivial or ancillary. Therefore, by 18 December 2008, the CEPU was seeking a matter not pertaining to the employment relationship as part of EBA7. Nor do such provisions fall within any of the other categories in s.172(1) of the FW Act.”
[42] The clause at issue here is quite different.
[43] Subsequent to the hearing on 28 October 2009, CCA asked that my attention be given to a further decision by Roberts C 9 with respect to the negotiations between the parties to the CEPU Full Bench decision. In that matter a further CEPU application for a protected action ballot was refused on the basis that the CEPU proposals, even in a revised form, reflected non-permitted matters. In that matter the revised union claims continue to provide the capacity for disagreements to be elevated to a national level, for the employer to provide the union with advice about why the work was to be contracted out, whether the positions had been advertised, and if so whether there were internal applicants. Finally, it provided the union with the capacity to put proposals to the employer to avoid the contracting out initiative.
[44] I consider that this provision extends substantially beyond that being pursued by the LHMU in this instance.
[45] In AWU v Alcoa World Alumina Australia Ltd 10 Williams C concluded:
“[37] Considering the evidence and case law above I find that the claim for Alcoa to reduce the number of contractor employees and to restrict or qualify Alcoa’s right to use contractors is not a matter pertaining to the relationship between Alcoa and Alcoa’s employees whom would be covered by an agreement. This claim by the AWU is not about permitted matters as defined in s. 172 of the Act.”
[46] Again, the clause under consideration in that matter is quite different to that being pursued by the LHMU here.
[47] The requirement for consultation with respect to the use of contractors has been considered extensively in the past. It was a component of the clause at issue in Schefenacker. In that matter, the Full Bench took no issue with the extent to which the consultative requirements were matters pertaining to the relationship between the employer and its employees.
[48] CCA put to me that the attention of the Full Bench in Schefenacker may not have been drawn to the Federal Court decision in Wesfarmers Premier Coal Ltd v AFMEPKIU 11 (Wesfarmers), which was referenced in CEPU. In Wesfarmers the Court considered the following provision:
“104 Clause 33 includes provisions which would impose restrictions or qualifications on the use by the employer of independent contractors. Subclause 33(4) provides, inter alia:
‘(4) Agreements to apply
(a) Contractors shall not be used by the Employer to reduce the number of employees primarily engaged in operations or maintenance work.
(b) Where the Employer determines there is an operational requirement over and above the capacity of the existing workforce the following approach will be undertaken:
(i) the Employer will consult with the employees and Union representatives and discuss the most cost and time effective method of carrying out the work to meet the operational demands;
(ii) the work will be undertaken through methods including but not limited to one or more of the following:
A. use of fixed term employees from the local area;
B. overtime work; or
C. use of contractors.’
Paragraph 33(4)(c) sets out minimum terms for contractors’ employees where a contractor is used.”
[49] French J concluded:
“109 In my opinion, cl 33 makes clear that the proposed agreement in this case was to include provisions restricting or qualifying the employer’s right to use independent contractors. Having regard to the basic test set out in Electrolux that a matter pertaining to the relationship between employer and employees will affect them in their capacities as such, I am of the opinion that cl 33 imports into the proposed agreement a discrete matter which does not pertain to that relationship. It is not merely ancillary, but substantive and distinct. Having regard to Cocks and the observations of Moore J in Mount Thorley Operations, I am of the opinion that on this ground the proposed agreement is not an agreement of the kind required by s 170LI.”
[50] It is neither necessary, nor appropriate that I comment on the extent to which the Schefenacker decision was consistent with the Wesfarmers decision. For the purposes of this matter, the clause sought by the LHMU is decidedly different to that considered by French J in Wesfarmers.
[51] I have concluded that the proposed obligation that CCA discuss and consult with Job delegates before engaging third-party labour hire contractors is a substantial claim. I do not consider that the claim restricts CCA’s capacity to engage third-party labour hire contractors. I agree with the LHMU position that an alleged breach of the consultative requirements gives rise to a potential claim for breach of the agreement or a dispute notification, but does not impede CCA from implementing the contracting arrangement.
[52] Had the proposed consultation provisions been more onerous, had they explicitly established a capacity to restrict the contracting process or had there been provision for Fair Work Australia to determine if and when a contracting initiative might occur, I may have arrived at a different conclusion.
Good Faith Bargaining
[53] CCA assert that the LHMU behaviour was not consistent with good faith bargaining requirements such that it could not be said to be genuinely trying to reach an agreement.
[54] In TWU Hamberger SDP observed:
“[26] While there is a relationship between ‘genuinely trying to reach an agreement’ and ‘bargaining in good faith’ it would be wrong simply to conflate the two terms. Even if I had found that the TWU was not bargaining in good faith – something I have not done – that would not necessarily mean that the TWU was not genuinely trying to make an agreement. Indeed the Explanatory Memorandum to the Fair Work Bill 2008 states, when dealing with the ‘genuinely trying to reach an agreement’ expression in s.413 (Common requirements that apply to industrial action to be protected industrial action):
“…The question whether a person is genuinely trying to reach an agreement requires a subjective assessment of the actual intention of the person and the overall circumstances. It is not limited to an assessment of whether the person is complying with the good faith bargaining requirements”.”
[55] I adopt that position. Further, in TMS, the Full Bench stated:
“[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. 2 It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.
[32] We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement. At the very least one would normally expect the applicant to be able to demonstrate that it has clearly articulated the major items it is seeking for inclusion in the agreement, and to have provided a considered response to any demands made by the other side. Premature applications, where sufficient steps have not been taken to satisfy the test that the applicant has genuinely tried to reach an agreement, cannot be granted.”
[56] It is conceivable that the way in which parties conduct their negotiations may fall short of the good faith bargaining requirements specified in section 228. The same conduct may also lead to a conclusion that a party is not genuinely trying to reach an agreement. There is a necessary distinction between good faith bargaining and bargaining effectively.
[57] In this instance it may be that the LHMU could have given CCA the draft agreement earlier, it could have been more explicit in its requirements for progress as an alternative to making this application. Notwithstanding that the draft agreement provided by the LHMU was a comprehensive document, the LHMU could have been more explicit about its expectation with respect to certain claims. It may be that a more comprehensive document and additional time could have allowed CCA to respond more fully.
[58] However, the LHMU had put overall claims to CCA. It has negotiated relative to these claims and, it appears that there is the potential to reach agreement relative to a number of these matters.
[59] In these circumstances, I do not consider that the LHMU behaviour is such that it falls outside of the concept of good faith bargaining in section 228, or that it falls short of the point in negotiations referenced in TMS, necessary to sustain a protected action ballot order.
[60] It appears to me that the claims have been generally made out to CCA. They have been discussed over a long period of time. Critical issues, and particularly the operation of 12 hour shifts, have not been agreed, and the negotiation of these issues may impact on other claims, including wages. The timing of a protected action ballot is, in these circumstances, a matter for the LHMU.
LHMU actions in the days before the protected action ballot was lodged
[61] CCA asserted that Mr Watson's approach in the meetings and discussions on 20, 21 and 22 October 2009 and his insistence on CCA’s agreement with the draft document were inconsistent with actions directed at genuinely trying to reach an agreement.
[62] CCA relied on the TMS decisions in this respect. CCA argued that the LHMU had sought CCA agreement to the entirety of the draft agreement even though that document was, itself, incomplete. On the basis that the draft agreement was an "all nothing proposal" CCA relied on the decision of Munro J in AFMEPKIU and AMCOR Closure Systems and others 12 (Amcor) such that I should conclude that the LHMU was not genuinely seeking to reach an agreement.
[63] Munro J’s decision in Amcor was determined in the context of a quite different legislative regime and the matters at issue there went to claims made on multiple employers in the form of alleged pattern bargaining. This is clearly not the case here.
[64] I cannot conclude that, on its plain words, the draft agreement put to CCA on 20 October 2009 was proposed for adoption as is. There are simply too many provisions noted as needing further negotiation for that to be the case.
[65] However, I have concluded that the draft proposal contained a number of critical issues upon which the LHMU hoped to reach an agreement. As I have already indicated, while it is possible that giving CCA a longer time in which to respond to the draft agreement could have moved the parties closer to an agreed position, the timing of the protected action ballot order is fundamentally a matter for the LHMU provided it has outlined its claims and engaged in discussion over these claims, which I am satisfied has occurred. Additionally, in this respect, I note that there remains ample time subsequent to the making of any protected action ballot order for the parties to reach an agreement should they wish to do so. Even if a protected action ballot order is made and employees vote in favour of specified industrial actions, the Act provides that this need not necessarily result in industrial action but may simply form part of the legitimate negotiating process.
[66] Consequently, while CCA may dispute the way in which the LHMU has conducted the negotiations, I am not persuaded that this conduct diminishes the extent to which the LHMU is genuinely seeking an agreement.
Conclusion - section 443(1)
[67] For the reasons set out above, I am satisfied that the LHMU is genuinely trying to reach an agreement with CCA. Accordingly, a protected action ballot order must be made. I have considered the form of that order below.
[68] The order sought by the LHMU is in the following terms:
…..
5. QUESTIONS
The question(s) to be put to voters in the ballot are:
1. Do you, for the purposes of advancing claims in the negotiation of an enterprise agreement with your employer, authorise industrial action in the form of an unlimited number of stoppages of 2 hours duration?
2. Do you, for the purposes of advancing claims in the negotiation of an enterprise agreement with your employer, authorise industrial action in the form of an unlimited number of stoppages of 4 hours duration?
3. Do you, for the purposes of advancing claims in the negotiation of an enterprise agreement with your employer, authorise industrial action in the form of an unlimited number of stoppages of 8 hours duration?
4. Do you, for the purposes of advancing claims in the negotiation of an enterprise agreement with your employer, authorise industrial action in the form of bans on the working of overtime?
5. Do you, for the purposes of advancing claims in the negotiation of an enterprise agreement with your employer, authorise industrial action in the form of bans on the provision of training of other employees or labour hire casuals?
6. Do you, for the purposes of advancing claims in the negotiation of an enterprise agreement with your employer, authorise two or more of the forms of industrial action approved in this ballot being applied at the same time?
7. Do you, for the purposes of advancing claims in the negotiation of an enterprise agreement with your employer, authorise the application of the industrial actions approved in this ballot in the form of multiple applications of any or all actions consecutively?
and in the case of each question, voters will be required to answer either Yes or No.
….”
[69] CCA have taken issue with the proposed questions six and seven on the basis that these questions lack the necessary degree of specificity and introduce an inappropriate degree of confusion.
[70] At a hearing on 28 October 2009 I sought advice from the LHMU about the extent to which questions six and seven could be replaced by an expanded preamble to all of the questions so as to make it clear that the actions could be taken separately, concurrently and/or consecutively.
[71] Whilst the LHMU was content with such an approach, CCA maintained its position that this form of preamble to the questions left too much doubt about the nature of the orders sought.
[72] It is appropriate that I note that the form of preamble I proposed to the parties reflects that most commonly adopted by Fair Work Australia with respect to protected action ballot orders. Nevertheless, the extent to which its use may reflect error in certain circumstances is, as I understand it, currently the subject of an appeal.
[73] In AMOU v Newcastle Port Corporation 13 Watson VP considered the requirement for clarity in the questions to put to employees in the following terms:
“[16] The relevant statutory 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.”
[17] The Corporation submits that the use of the words “separately, concurrently and/or consecutively” in the preamble to the 21 questions concerning alternative forms of industrial action create an ambiguity because employees are not informed of the way in which the action will be taken. It also submits that various references to proposed industrial action are vague and not sufficiently clear.
[18] The AMOU submits that the questions are not ambiguous and the types of industrial action described are well understood by the employees who will be asked to vote.
[19] I have reviewed each of the proposed questions and consider that they are sufficiently clear to enable employees to make an informed choice. It may be that if particular forms of industrial action are authorised and are proposed to occur they should be better described in a notice of intended industrial action. In my view, apart form a minor grammatical matter in the preamble which I will rectify in the order I issue, the questions are in an acceptable form.”
[74] I have adopted this approach, together with the form of the preamble selected by His Honour in that matter.
[75] I have noted the CCA advice that reference in any Order to employees covered by individual agreement based transition instruments is not necessary in this instance and I have not incorporated reference to such arrangements in the Order.
[76] Finally, the LHMU sought that the protected action ballot be conducted within 14 days. Having had regard to the obligations on the Australian Electoral Commission and the advices from that body, I have provided for the ballot to occur within 20 days.
[77] An Order [PR990420] reflecting this decision will be issued.
SENIOR DEPUTY PRESIDENT
Appearances:
J Love for the Liquor, Hospitality and Miscellaneous Union.
A Gotting and E Perry counsel for Coca Cola Amatil (Aust) Pty Ltd.
Hearing details:
2009.
Adelaide:
October 27 and 28.
1 PR968941
2 [2009] FWA 101 (PR988595)
3 B2009/10456 [2009] FWA 153 (PR988822) ; B2009/10464 [2009] FWA 320 (PR989331)
4 [2009] FWAFB 368
5 [1968] HCA 86
6 (1978) HCA 51
7 [2009] FWA 425
8 [2009] FWAFB 599
9 [2009] FWA 10900
10 [2009] FWA 796
11 2004 FCA 1737
12 Print T1982
13 [2009] FWA 829
Printed by authority of the Commonwealth Government Printer
<Price code C, PR990401>
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