Liquor, Hospitality and Miscellaneous Union v Ambulance Victoria
[2009] FWA 3
•6 JULY 2009
[2009] FWA 3 |
|
REASONS FOR DECISION |
Fair Work Act 2009
Sch. 13, Part 4, Item 14A - Application for an order that industrial action is taken to be authorised by a protected action ballot
Section 459(3) – Application for extension of 30 day period in s.459(1)(d)(i)
Liquor, Hospitality and Miscellaneous Unionv
Ambulance Victoria
(B2009/10017)
SENIOR DEPUTY PRESIDENT KAUFMAN | MELBOURNE, 6 JULY 2009 |
Transitional order under item14A of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 - industrial action taken to be authorised under s.459 of the Fair Work Act - WR Act Repeal Day is 1 July 2009 – item 14A(5) – meaning of “For the purposes of s.414(3) of the FW Act.
[1] This is an application by the Liquor, Hospitality and Miscellaneous Union (LHMU or union) for an order pursuant to item 14A of Part 4 of Schedule 13 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act), and an order pursuant to the Fair Work Act 2009 (FW Act). It seeks an order that industrial action that was authorised under the Workplace Relations Act 1996 (WR Act) is authorised under FW Act, and an order that the 30 day period during which authorised industrial action may commence under s.459(1)(d)(i) of FW Act be extended by 30 days.
The Item 14A Application
[2] Item 14A is in the following terms:
14A FWA may order that industrial action is taken to be authorised by a protected action ballot
(1) A person who is a bargaining representative for a proposed enterprise agreement may apply to FWA for an order under this item if, before the WR Act repeal day, the person was an applicant specified in an order for a protected action ballot in relation to a proposed collective agreement.
(2) The application must be made within 28 days after the WR Act repeal day.
(3) FWA may order that industrial action that was authorised under section 478 of the WR Act in relation to the proposed collective agreement is taken to be authorised, in relation to the proposed enterprise agreement, by a protected action ballot under subsection 459(1) of the FW Act, if FWA is satisfied that:
(a) on or after 1 March 2009, the person organised or engaged in industrial action, for the purpose of supporting or advancing claims in relation to the proposed collective agreement; and
(b) all such industrial action organised or engaged in by the person was:
(i) authorised by a protected action ballot under section 478 of the WR Act; and
(ii) protected action within the meaning of the WR Act; and
(c) the person did not first organise or engage in such industrial action on or after the WR Act repeal day; and
(d) no collective agreement covering the employees whose employment would have been subject to the proposed collective agreement was approved by those employees before the WR Act repeal day; and
(e) the proposed enterprise agreement will cover those employees; and
(f) the person is genuinely trying to reach agreement in relation to the proposed enterprise agreement; and
(g) it is reasonable in all the circumstances to make the order.
(4) Industrial action that is taken to be authorised because of the operation of subitem (3) is only taken to be authorised in relation to employees who:
(a) will be covered by the proposed enterprise agreement; and
(b) were relevant employees (within the meaning of section 450 of the WR Act) in relation to the proposed collective agreement.
(5) For the purposes of subsection 414(3) of the FW Act, the results of the protected action ballot under that Act are taken to have been declared on the day of the order.
[1] The LHMU and Ambulance Victoria are parties to and bound by the Metropolitan Ambulance Service MX Award 2005, and the Rural Ambulance Victoria MX Award 2005, both of which have a nominal expiry date of 27 July 2008. As Mr Dowling of counsel, who appeared for the LHMU pointed out, those awards continue in operation by virtue of schedule 7 section 2(1) of the Workplace Relations Act, and schedule 3 item 2 of the Transitional Act.
[2] The parties commenced negotiation for an agreement to replace the two awards on or about 11 April 2008, and those negotiations are continuing. On or about 4 September 2008 the union filed and served a notice of initiation of bargaining period, which commenced on 12 September 2008. On or about 7 May 2009 the union filed an application for an order for a protected action ballot to be held, and on 12 May, after hearing that application, which was not opposed in substance, I ordered that a protected action ballot be conducted by the Australian Electoral Commission. The ballot was conducted between 20 May 2009 and 3 June 2009 with the results being declared on 4 June 2009. More than 50 per cent of the people on the roll of voters cast a valid vote and more than 50 per cent of those votes approved each type of industrial action identified by the ballot.
[3] There was a series of different types of industrial action identified in the ballot and itemised separately, and it was in relation to each of the different types of industrial action that approval was sought and granted. On 15 June 2009, 16 June 2009 and 20 June 2009 the union notified the respondent of its intention to take protected industrial action, and industrial action of various types has been taken, and members of the union have participated in that action. The union has not taken any action or notified action other than I have indicated. The parties have yet to conclude an agreement despite there having occurred many meetings, including a number under the auspices of the Australian Industrial Relations Commission. A further conciliation conference is scheduled for 6 July 2009.
[4] On 1 July 2009 the enterprise bargaining regime provided for in the WR Act was repealed and replaced by a new regime by the FW Act. The LHMU is still pressing for a collective agreement. Any collective agreement reached between the parties will be an agreement made under FW Act. It would seem that industrial action can only be protected action within the meaning of FW Act if it is authorised by a protected action ballot ordered and conducted pursuant to Division 8 of Part 3-3 of FW Act. In the absence of an order under item 14A, a union in the position of the LHMU would be obliged to seek a fresh authorisation for industrial action through a protected action ballot ordered and conducted under Division 8 of Part 3-3 of FW Act. Item 14A addresses that situation albeit that it has an effective life of only 28 days from 1 July 2009 in terms of the right to bring an application pursuant to that provision. Item 14A was added as a senate amendment to the Fair Work Bill 2009. The relevant Supplementary Explanatory Memorandum states that item 14A “allow(s) for the limited preservation of protected action ballots under the WR Act after the WR Act repeal day.” 1
[5] The expression “WR Act repeal day” is defined in s.2 of Schedule 2 to the Transitional Act to mean “the day on which the WR Act repeal commences”. The expression “WR Act repeal” is defined in the same section to mean “the commencement of Schedule 1.” Pursuant to s.2 of the Transitional Act, Schedule 1 of that Act commences on “[t]he day on which Part 2-4 of the Fair Work Act 2009 commences”. Part 2-4 of FW Act is entitled “Enterprise Agreements” and comprises sections 169 to 257 inclusive. Pursuant to s.2 of FW Act, sections 41 to 572 inclusive commence on “A day or days to be fixed by Proclamation” albeit that the table in s.2 imposes other restrictions on the commencement day that have no operation in the events that have transpired. A Proclamation by the Governor-General made on 29 June 2009 fixed 1 July 2009 as the day on which sections 169 to 281A, amongst others, of FW Act commenced. In other words, the WR Act repeal day was 1 July 2009. 2
[6] The present application was made on 1 July 2009, that is, within 28 days after the WR Act repeal day.
[7] Section 14A requires that Fair Work Australia be satisfied of certain matters in order that it may exercise its discretion to make an order of the type sought here. Mr Dowling in his submissions has taken me through the requirements of item 14A of the Transitional Act, and he relies upon an affidavit of Steve McGhie, a union official with the LHMU, that was affirmed on 1 July 2009, to demonstrate that the requirements of item 14A have been met. Ms Russell, solicitor, who appeared for the employer, Ambulance Victoria, did not object to the admission into evidence of that affidavit. Nor does she object to the making of the first order that is sought in these proceedings. I am satisfied, having regard to Mr Dowling's submissions and to the evidence of Mr McGhie, that the requirements of item 14A have been met. In the absence of objection by Ms Russell and in any event having regard to the matters adverted to by Mr Dowling, I am also satisfied as required by item 14A(3)(g) that it is reasonable in all the circumstances to make the order, and I will do so. This will avoid the necessity of the LHMU conducting a further ballot. I have had particular regard to the fact that the protected action ballot was approved by a large majority of those entitled to vote thereby indicating widespread support for the industrial action, that the LHMU has spent in excess of $1,000 to pay a portion of the costs of the ballot and would probably be required to do so again were I not to accede to its application.
[8] As did Vice President Lawler, I have considered the requirements specified in item 14A(3). It is not disputed that:
• On or after 1 March 2009, the LHMU organised industrial action, for the purpose of supporting or advancing claims in relation to the proposed collective agreement.
• All such industrial action organised by the LHMU was authorised by a protected action ballot under section 478 of the WR Act and was protected action within the meaning of the WR Act.
• The LHMU did not first organise or engage in such industrial action on or after 1 July 2009, the WR Act repeal day.
• No collective agreement covering the employees whose employment would have been subject to the proposed collective agreement was approved by those employees before 1 July 2009, the WR Act repeal day.
• The enterprise agreement proposed by the LHMU will cover those employees.
• The LHMU is genuinely trying to reach agreement in relation to the proposed enterprise agreement.
[9] The requirements in item 14A(3)(a) to (f) are satisfied as is the requirement in s.14A(3)(g) that “it is reasonable in all the circumstances to make the order”.
[10] I endorse Vice President Lawler’s remarks that “[w]here an industrial party has been pursuing a collective agreement in conformity with the regime in the WR Act and has, prior to 1 July 2009, been taking protected industrial action pursuant to a secret ballot ordered and conducted under the WR Act, it will ordinarily be reasonable to make an order under [item] 14A”. 3
the s.459(3) Application
[11] The second order that is sought is an order under section 459(3) of FW Act. Section 459 provides for the authorisation of industrial action by protected action ballot, and subsection (3) enables Fair Work Australia to extend the 30 day period referred to in sub-section (1)(d)(i) by up to 30 days. The sub-section to which I have just referred provides that action is authorised if it commences during the 30 day period, starting on the date of the declaration of the results of the ballot, or if Fair Work Australia has extended the period under subsection (3). In Mr Dowling's submission such an order is necessary or, at the very least desirable as an exercise of caution, because the 30 days during which industrial action, authorised by the protected action ballot declared on 3 June 2009 under section 478 of the Workplace Relations Act, may commence expires on 3 July.
[12] He submitted that the LHMU had intended to take the last remaining parts of industrial action that the ballot had authorised it to take, prior to 30 June this year or in the first days of July, but having regard to item 13 of the Transitional Act the ballot order made under the WR Act has no effect after the WR Act repeal date, 1 July 2009. In Mr Dowling's submission if the 30 day period is not extended, industrial action will not be able to be taken, even though an order has been made under item 14A of the Transitional Act.
[13] Sub-section 5 of item 14A provides that:
For the purposes of section 414(3) of the Fair Work Act, the results of the protected action ballot under that Act are taken to have been declared on the day of the order.
[14] I do not think there is any dispute that the day of the order referred to there is the order that I have just made under item 14A(3). Mr Dowling emphasizes the words that open subsection 5:
For the purposes of subsection 414(3)of the FW Act –
and submits that it may be that it is only for those purposes that the results of the protected action ballot are taken to have been declared today. Ms Russell submits that an order extending the period by 30 days is not necessary because item 14A(5) has a broader meaning than that for which Mr Dowling contends and has the effect of deeming the declaration of the results of the protected ballot to have taken place on the day of the making of the order under item 14A(3).
[15] In my view, Ms Russell's submission ought be accepted. Whilst I understand that Mr Dowling wishes to ensure that the order I have made under item 14A(3) of the Transitional Act is not rendered futile, I do not think his fears are well founded. As I have indicated, item 14A(5) provides that it is for the purposes of subsection 413(3) of FW Act that the results of the ballot are deemed to have been declared on the day of the making of the item 14A(3) order.
[16] In my view, the purposes of subsection 414(3) are to make industrial action that has been authorised under section 478 of the WR Act authorised industrial action under section 459(1) of FW Act. Section 459(1)(d) provides that the 30 day period during which authorised action might commence is on the declaration of the ballot pursuant to section 457 of FW Act.
[17] As item 14A(5) of the Transitional Act deems the declaration of the ballot under s.457 of FW Act to have occurred on the day of the order made under item 14A(3) the 30-day period starts on that day.
BY FAIR WORK AUSTRALIA
SENIOR DEPUTY PRESIDENT
Appearances:
C Dowling, of counsel, for the Liquor, Hospitality and Miscellaneous Union.
L Russell, solicitor, for Ambulance Victoria.
Hearing details:
2009.
Melbourne:
July 3.
1 Australian Municipal, Administrative, Clerical ands Services Union v City of Swan [2009] FWA 1 at [3]
2 Ibid at [4]
3 Ibid at [9]
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