Liquor, Hospitality and Miscellaneous Union v Protec Pty Ltd
[2009] FWA 1227
•1 DECEMBER 2009
[2009] FWA 1227 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
v
Protec Pty Ltd
(B2009/11006)
SENIOR DEPUTY PRESIDENT O'CALLAGHAN | ADELAIDE, 1 DECEMBER 2009 |
Proposed protected action ballot by employees of Protec Pty Ltd.
[1] At the conclusion of a hearing on 16 November 2009 I issued a decision in transcript. This decision, now edited, reflects a request for written reasons for my decision.
[2] On 9 November 2009 the Liquor, Hospitality and Miscellaneous Union (LHMU) lodged an application for a protected action ballot order pursuant to section 436 of the Fair Work Act 2009 (the Act). This application sought a ballot of employees of Protec Pty Ltd (Protec) who were members of the LHMU. The proposed ballot excluded LHMU members whose employment conditions were currently governed by an existing Warehouse agreement which has not achieved its nominal expiry date.
[3] The application was the subject of hearings on 13 and 16 November 2009. At these hearings Mr Love represented the LHMU and Mr Simpson, Protec. Evidence was given by the LHMU organiser Mr McRae and by Mr Simpson.
[4] 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.
….”
[5] This sub-section requires that the application for a protected action ballot is to be granted if I am satisfied that the application was properly made pursuant to section 436, and that the LHMU has been, and is genuinely trying to reach an agreement.
[6] There is no dispute that the application was properly made pursuant to section 436. The only question relative to the extent to which the LHMU has been, and is genuinely trying to reach an agreement relates to the proposed inclusion in the ballot of LHMU members engaged by Protec as Laboratory Assistants.
[7] The evidence before me is that the LHMU put claims to Protec management in July 2009 and that those claims included a claim that laboratory assistants should be covered by any future agreement.
[8] Whilst the LHMU claims have been extensively debated, the claim for inclusion of the laboratory assistants has received only minimal ongoing attention since it was rejected by Protec in July and August 2009.
[9] The LHMU seek to include the laboratory assistants in the protected action ballot. Protec dispute the extent to which Fair Work Australia can order a protected action ballot with respect to the laboratory assistants although it concedes that a ballot can and must be granted with respect to other employees.
[10] I have adopted the position set out by a Full Bench of Fair Work Australia in Total Marine Services Pty Ltd v Maritime Union of Australia 1 (Total Marine Services) in the following terms:
“[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.”
[11] As an initial question, I do not consider that a protected action ballot order can be used as a means of exercising a group of employees covered by a union claim where there is a disagreement between that union and the relevant employer about the inclusion, or otherwise of those employees. It appears to me that either the claims, in their entirety, have been progressed to the stage referred to in Total Marine Services with respect to all employees to be balloted, or they have not.
[12] The alternative, whereby some employees are excluded from a ballot would appear to create the potential for confusion and for ballot outcomes which differ within the same workplace. Such an approach would be inconsistent with the objects of this part of the Act in so far as they relate to a fair and transparent decision-making process.
[13] The Act provides the capacity for scope orders to be sought. These have the potential to impact on the coverage of an agreement, but do not, of themselves, limit the operation of a protected action ballot.
[14] The test referenced in Total Marine Services is to be applied to the employees who are the subject of the claims made by the LHMU. If claims with respect to those employees have been made out and discussed with the employer then, unless those claims represent claims for matters incapable of being included in an agreement, the requirements for a protected action ballot order are met. The protected industrial action which might then follow simply allows the union, as the bargaining agent for its members, to seek to pressure the employer to agree to its claims, including the agreement coverage issue.
[15] In this instance the LHMU has specified a claim for the inclusion of the laboratory assistants. This claim was discussed but it was not agreed. There is nothing that indicates that the claim included matters incapable of inclusion in an agreement.
[16] Accordingly, I consider that the LHMU has met the requirements for a protected action ballot which would include the capacity for laboratory assistants, employees of Protec, who are members of the LHMU, to vote to take protected industrial action.
[17] I note that the making of a protected action ballot order neither requires that the parties reach an agreement nor prescribes the scope of any such agreement.
[18] A second issue of difference between the parties in this matter goes to the notice period to be given for any protected industrial action consequent upon the declaration of the ballot. In the event of a protected action ballot order being made, Protec argued for a minimum of five days notice pursuant to subsection 443(5), in order to minimise disruption to its existing customers.
[19] Subsection 443(5) states:
“(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.”
[20] While Protec have made submissions in this respect, no evidence has been presented to me. I consider that there is an obligation on Protec to establish that the "exceptional circumstances" exist consistent with this subsection, and I am not satisfied that the legislative default provision of three days notice should be extended on the information before me.
[21] A protected action ballot order (PR990797) has been issued consistent with this decision. Notwithstanding that the LHMU sought that the ballot be conducted within a limited time frame, I have had regard to the specified time requirements advised by the Australian Electoral Commission and have allowed 20 days for the conduct of this ballot.
SENIOR DEPUTY PRESIDENT
Appearances:
J Love for the Liquor, Hospitality and Miscellaneous Union.
M Simpson for Protec Pty Ltd.
Hearing details:
2009.
Adelaide:
November 16.
1 [2009] FWAFB 368 (PR989455)
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