Lyondell Basell Australia Pty Ltd v The Australian Workers' Union - [2014] FWC 5765

No judgment structure available for this case.

[2014] FWC 5765

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.418—Industrial action

Lyondell Basell Australia Pty Ltd
v
The Australian Workers’ Union
(C2014/5920)

COMMISSIONER RYAN

MELBOURNE, 21 AUGUST 2014

Alleged unprotected industrial action at LyondellBasell Australia Pty Ltd - application dismissed.

[1] A decision in this matter without reasons was issued by the Commission at 4.30pm on Wednesday 20 August 2014, [2014] FWC 5742. The decision was issued within the 2 day time limit set by s.420 of the Act.

[2] What follows are the detailed reasons for that decision.

[3] An application was made by LyondellBasell Australia Pty Ltd (the Employer) at 5.07 pm on Monday 18 August 2014 for orders to stop alleged unprotected industrial action being organised by the AWU and which was to take place as from Wednesday 20 August 2014.

[4] The AWU and the Employer have been bargaining for an enterprise agreement for several months but so far without success. The last bargaining meeting occurred on 8 August 2014. Following that meeting the AWU on 14 August 2014 gave notice under s.414 to the Employer employees for whom the AWU was a default bargaining representative would take employee claim action being “an indefinite ban on the entering of SAP notifications commencing at 12.01am on Wednesday, 20 August 2014 and continuing until notified otherwise.”

[5] The Employer contends that the s.414 notice is not valid on 3 grounds. Firstly, that the industrial action is being taken in support of a claim which is outside the proposed enterprise agreement and secondly, that the AWU is not genuinely trying to reach agreement with the Employer and thirdly that the proposed industrial action lacks a degree of specificity as would enable the Employer to take appropriate response measures.

Relevant Legislation

[6] The relevant provisions of the Fair Work Act are as follows:

“172 Making an enterprise agreement

Enterprise agreements may be made about permitted matters

(1) An agreement (an enterprise agreement) that is about one or more of the following matters (the permitted matters) may be made in accordance with this Part:

(a) matters pertaining to the relationship between an employer that will be covered by the agreement and that employer’s employees who will be covered by the agreement;

(b) matters pertaining to the relationship between the employer or employers, and the employee organisation or employee organisations, that will be covered by the agreement;

(c) deductions from wages for any purpose authorised by an employee who will be covered by the agreement;

(d) how the agreement will operate.

Note 1: For when an enterprise agreement covers an employer, employee or employee organisation, see section 53.

Note 2: An employee organisation that was a bargaining representative for a proposed enterprise agreement will be covered by the agreement if the organisation notifies the FWC under section 183 that it wants to be covered.

Single-enterprise agreements

(2) An employer, or 2 or more employers that are single interest employers, may make an enterprise agreement (a single-enterprise agreement):

(a) with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or

(b) with one or more relevant employee organisations if:

(i) the agreement relates to a genuine new enterprise that the employer or employers are establishing or propose to establish; and

(ii) the employer or employers have not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the agreement.

Note: The expression genuine new enterpriseincludes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12).

Multi-enterprise agreements

(3) Two or more employers that are not all single interest employers may make an enterprise agreement (a multi-enterprise agreement):

(a) with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or

(b) with one or more relevant employee organisations if:

(i) the agreement relates to a genuine new enterprise that the employers are establishing or propose to establish; and

(ii) the employers have not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the agreement.

Note: The expression genuine new enterpriseincludes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12).

Greenfields agreements

(4) A single-enterprise agreement made as referred to in paragraph (2)(b), or a multi-enterprise agreement made as referred to in paragraph (3)(b), is a greenfields agreement.

Single interest employers

(5) Two or more employers are single interest employers if:

(a) the employers are engaged in a joint venture or common enterprise; or

(b) the employers are related bodies corporate; or

(c) the employers are specified in a single interest employer authorisation that is in operation in relation to the proposed enterprise agreement concerned.

Requirement that there be at least 2 employees

(6) An enterprise agreement cannot be made with a single employee.

409 Employee claim action

Employee claim action

(1) Employee claim action for a proposed enterprise agreement is industrial action that:

(a) is organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement that are only about, or are reasonably believed to only be about, permitted matters; and

(b) is organised or engaged in, against an employer that will be covered by the agreement, by:

(i) a bargaining representative of an employee who will be covered by the agreement; or

(ii) an employee who is included in a group or groups of employees specified in a protected action ballot order for the industrial action; and

(c) meets the common requirements set out in Subdivision B; and

(d) meets the additional requirements set out in this section.

Protected action ballot is necessary

(2) The industrial action must be authorised by a protected action ballot (see Division 8 of this Part).

Unlawful terms

(3) The industrial action must not be in support of, or to advance, claims to include unlawful terms in the agreement.

Industrial action must not be part of pattern bargaining

(4) A bargaining representative of an employee who will be covered by the agreement must not be engaging in pattern bargaining in relation to the agreement.

Industrial action must not relate to a demarcation dispute etc.

(5) The industrial action must not, if it is being organised or engaged in by a bargaining representative, relate to a significant extent to a demarcation dispute or contravene an FWC order that relates to a significant extent to a demarcation dispute.

Notice requirements after suspension order must be met

(6) If section 429 (which deals with employee claim action without a further protected action ballot after a period of suspension) applies in relation to the industrial action, the notice requirements of section 430 must be met.

Officer of an employee organisation

(7) If an employee organisation is a bargaining representative of an employee who will be covered by the agreement, the reference to a bargaining representative of the employee in subparagraph (1)(b)(i) of this section includes a reference to an officer of the organisation.

414 Notice requirements for industrial action

Notice requirements—employee claim action

(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.

(2) The period of notice must be at least:

(a) 3 working days; or

(b) if a protected action ballot order for the employee claim action specifies a longer period of notice for the purposes of this paragraph—that period of notice.

Notice of employee claim action not to be given until ballot results declared

(3) A notice under subsection (1) must not be given until after the results of the protected action ballot for the employee claim action have been declared.

Notice requirements—employee response action

(4) Before a person engages in employee response 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.

Notice requirements—employer response action

(5) Before an employer engages in employer response action for a proposed enterprise agreement, the employer must:

(a) give written notice of the action to each bargaining representative of an employee who will be covered by the agreement; and

(b) take all reasonable steps to notify the employees who will be covered by the agreement of the action.

Notice requirements—content

(6) A notice given under this section must specify the nature of the action and the day on which it will start.

418 FWC must order that industrial action by employees or employers stop etc.

(1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:

(a) is happening; or

(b) is threatened, impending or probable; or

(c) is being organised;

the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.

Note: For interim orders, see section 420.

(2) The FWC may make the order:

(a) on its own initiative; or

(b) on application by either of the following:

(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;

(ii) an organisation of which a person referred to in subparagraph (i) is a member.

(3) In making the order, the FWC does not have to specify the particular industrial action.

(4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:

(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or

(b) which has not ended before the beginning of that stop period; or

(c) beyond that stop period;

the FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.

420 Interim orders etc.

Application must be determined within 2 days

(1) As far as practicable, the FWC must determine an application for an order under section 418 or 419 within 2 days after the application is made.

Interim orders

(2) If the FWC is unable to determine the application within that period, the FWC must, within that period, make an interim order that the industrial action to which the application relates stop, not occur or not be organised (as the case may be).

(3) However, the FWC must not make the interim order if the FWC is satisfied that it would be contrary to the public interest to do so.

(4) In making the interim order, the FWC does not have to specify the particular industrial action.

(5) An interim order continues in operation until the application is determined.

437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(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 the FWC 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 the FWC 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) either:

(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii) are bargaining representatives for themselves but are members of an employee organisation that 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.

443 When the FWC must make a protected action ballot order

(1) The FWC 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) the FWC 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) The FWC 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.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC 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 the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC 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.”

Relevant Authorities

[7] I adopt as part of this decision the summary of the key decisions on the role and purpose of a notice of intention to take protected action and the adequacy of the content of such notices which is set out in paras [36] - [46] in the Full Bench decision in EnergyAustralia Yallourn P/L v CFMEU (EnergyAustralia Yallourn) 1.

[8] I adopt as part of this decision the summary of the key decisions which considered the phrase ‘has been and is genuinely trying to reach an agreement’ which is set out in paras [57] - [63] in the Full Bench decision in Maritime Union of Australia v Swire Pacific Ship Management (Australia) P/L (Swire Pacific) 2.

[9] I accept the correctness of the proposition advanced by Mr Gardner on behalf of the Employer as to the relevance of the Full Bench decision in Australian Postal Corporation v CEPU 3, commencing at [50] in interpreting s.409(1)(a) and s.172(1).

Proceedings

[10] The Employer at the time of filing the application in this matter also sought an Order for Substituted Service. An Order for Substituted Service was granted but not in the form first sought by the Employer.

[11] The application was listed for hearing at 1.30pm on Tuesday 19 August 2014.

[12] At the commencement of the hearing the Employer sought permission to be represented by a lawyer. On hearing from Mr Gardner, legal representative for the Employer and from Mr Wood of the AWU, I granted permission for the Employer to be represented by a lawyer or paid agent. I was satisfied that there was a sufficient degree of complexity to the case being advanced by the Employer that it would enable the matter to be dealt with more efficiently if the Employer was represented by a lawyer.

[13] The Employer led evidence from Mr Duff, Manufacturing, Feedstock and Procurement Manager of the Employer and Mr Stannard, Site Manager of the Geelong Polypropylene Plant of the Employer. The AWU led no evidence although part of what Mr Wood presented from the bar table was effectively the presentation of unsworn evidence.

[14] Mr Stannard gave evidence as to the service by the Employer of the application in accordance with the Order for Substituted Service. The Commission is satisfied that the employees were served in accordance with the Order for Substituted Service.

Consideration

[15] I will deal separately with each of the three grounds relied upon by the Employer to support its application.

1. That the AWU were taking industrial action in support of a claim for a matter to be dealt with outside the proposed enterprise agreement.

[16] The evidence of both Mr Duff and Mr Stannard was that one of the claims made by the AWU on 1 May 2014, and which had been discussed at all of the 11 bargaining meetings, was in relation to redundancy payments. Mr Wood for the AWU presented a copy of the AWU log of claims to the hearing and the first claim was as follows:

“1. Redundancy provision that is based on the Policy of Shell before it removed the age component as outlined in the Esso Redundancy Standard 1990 AOS Agreement Shell policy was 12 weeks Basic Benefit that goes to all employees 8 weeks payment in lieu of Notice, 4 weeks for each year of service up to 10 Years. Above 10 Years 5 weeks per year of service. Maximum Payment of 116 weeks capped other than the age provision Age Benefit 2 weeks per year of service over 40 years of age uncapped.”

[17] Mr Wood contended that the Employer at a bargaining meeting in June advised that its position in relation to the redundancy claim was to deal with that issue by way of individual agreement between the Employer and each employee and not to deal with it through the enterprise agreement.

[18] The evidence of both Mr Duff and Mr Stannard was that the Employer had decided that it would deal with the issue of redundancy through individual agreement with each employee and not through the proposed enterprise agreement.

[19] The evidence of both Mr Duff and Mr Stannard was that at the last bargaining meeting on 8 August 2014 that Mr Wood of the AWU proposed to the Employer that it enter into a deed to accept the outcome of matters which were being resolved between Shell and the AWU in relation to redundancy and other matters. The witness statements of Mr Duff, Exhibit A1, and Mr Stannard, Exhibit A2, include the following:

“7. Mr Wood said words to the following effect:

"We have made an offer that if you [LyondellBasell Australia] agree to enter into a Deed with the A WU and accept the outcome of the Shell arbitrated matters, then the AWU issues would be settled. The key issues that need to be agreed are:

A Deed for redundancy entitlements to apply to existing and new employees between the Company and the Union.

Revised Dispute and Grievance procedure.

Revisions to the Continua/Improvement clause.

If you do that, I'll agree to the other claims being dropped." 4

“15. It was my understanding that Mr Wood was asking LyondellBasell Australia to agree to enter into a Deed that would contain whatever Shell agreed to as part of the Shell Deed Negotiations. Mr Wood did not indicate what, if anything, Shell had agreed to as part of the Shell Deed Negotiations.

16. Mr Wood also seemed to be asking LyondellBasell to adopt the outcomes of the Shell Arbitration, whatever those outcomes may be and regardless of what matters were being arbitrated.” 5

[20] On the basis that Mr Wood had offered to settle the claim in relation to redundancy through a deed the Employer contended that the AWU were advancing a claim other than through the enterprise agreement and therefore the taking of the industrial action was for a purpose of supporting claims that were not in relation to the agreement.

[21] Mr Wood conceded that he asked the Employer to enter into a deed with the AWU to deal with the issue of redundancy but that this offer was in response to the Employer having specifically decided to deal with the issue of redundancy through individual agreement with each employee.

[22] Both Mr Duff and Mr Stannard gave evidence that at the end of the bargaining meeting on 8 August 2014 Mr Wood advised of an intention to take industrial action.

“16. Mr Wood said words to the following effect:

"I understand that LyondellBasell has rejected my offer."

17. I understood that Mr Wood was referring to his offer to have a Deed with the AWU and adopt the outcomes of the Shell arbitration.

18. Mr Stannard asked about setting a further meeting so that we could continue to look for ways forward and Mr Wood said words to the following effect:

"Well, we're not going to agree on anything so I don't see the point in meeting again.

We'll have to take industrial action to get LyondellBasell to move." 6

“25. Mr Duff rejected the AWU's offer to adopt the Shell Arbitration outcomes and the Shell Deed Negotiations. He told Mr Wood that would not be acceptable to LyondellBasell Australia.

28. At the end of the meeting on 8 August 2014, Mr Wood said words to the effect of:

"Well, we're not going to agree on anything so I don't see the point in meeting again.

We 'II take industrial action to get LyondellBasell moving." 7

[23] The evidence of both Mr Duff and Mr Stannard was that they understood the comments made by Mr Wood in relation to the taking of industrial action as meaning that Mr Wood was intending to take industrial action in support of a claim that the Employer enter into a deed with the AWU to deal with the issue of redundancy.

[24] Mr Wood conceded that at the end of the meeting on 8 August 2014 he used words which, if not identical to those quoted by Mr Duff or Mr Stannard, were very close to those words.

[25] Mr Wood contended that the intention to take industrial action was simply because the AWU and the Employer could not reach agreement. Mr Wood contended that his offer of a deed with the AWU was only made because the AWU was responding to the decision of the Employer to deal with redundancy through individual agreements with each employee. Once the Employer rejected the offer of the AWU to have the issue of redundancy dealt with through a deed with the AWU then the matter of redundancy simply reverted back to the AWU’s original claim. Mr Wood contended that the threat of industrial action was made in relation to the enterprise agreement including the claim as to redundancy.

[26] I accept the correctness of the contention advanced by Mr Gardner for the Employer that employee claim action as defined in s.409 can only be taken in relation to a proposed enterprise agreement and cannot be taken for any other purpose.

[27] I also accept the correctness of the contention of Mr Gardner that if the AWU were advancing a claim for a deed to be entered into between the AWU and the Employer in relation to redundancy and this was to be separate from or outside the proposed enterprise agreement then any industrial action taken in support of this purpose could not be protected industrial action as it would not meet the requirements of being employee claim action.

[28] The simple issue in this matter is whether the evidence of Mr Duff and Mr Stannard supports the contention of the Employer.

[29] Critically the evidence of Mr Duff and Mr Stannard is that they formed a view as to the meaning and intent behind Mr Wood’s words. But this falls far short of evidence that Mr Wood was both pursuing a claim outside the enterprise agreement and intending to take industrial action in support of that claim.

[30] This would not be the first time that parties to a bargaining process about a proposed enterprise agreement failed to understand each other’s words.

[31] Having considered the evidence and contentions of the parties I conclude that the AWU were not pursuing a claim for a deed between the AWU and the Employer in relation to redundancy and that the AWU and employees were not proposing to take industrial action for a purpose other than for the purpose of supporting or advancing claims in relation to the agreement that are only about, or reasonably believed to be about, permitted matters.

2. That the AWU is not genuinely trying to reach agreement with the Employer

[32] The essence of the contention of the Employer in relation to this ground was that the claim by the AWU that the AWU and the Employer enter into a deed whereby the Employer would adopt the outcome of a separate dispute between the AWU and Shell was a claim that lacked certainty and which was a claim with an unknown outcome.

[33] The Employer contended that the very nature of the claim and the fact that the outcome actually sought was unknown to the Employer, and even to the AWU, meant that the AWU could not be genuinely trying to reach an agreement with the Employer.

[34] I do as the Full Bench in MUA v Swire Pacific did at [63]. I adopt the approach of the majority in J.J. Richards, the Full Bench in J.J Richards II and that of Flick J in the Full Court decision in J.J. Richards as set out in paras [60] to [62] in Swire Pacific.

[35] When the evidence in this matter is considered in the light of the relevant authorities it is clear that AWU as a bargaining representative has been engaged in a lengthy bargaining process which commenced at least by 1 May 2014 when the AWU gave to the Employer its log of claims. At each of the 11 bargaining meetings the issue of redundancy has been discussed. The AWU claim was for the enterprise agreement to deal with redundancy entitlements of employees. During the bargaining process the Employer adopted a bargaining position that redundancy would be dealt with outside the enterprise agreement. The Employer at some stage during the bargaining process adopted the clear position that redundancy would be dealt with by way of separate agreements made between the Employer and each employee. In response to this position the AWU offered to deal with redundancy through a deed made between the AWU and the Employer. This offer was rejected by the Employer.

[36] It is not uncommon during the course of bargaining for an enterprise agreement that the bargaining parties may agree to remove an item from the proposed enterprise agreement and deal with the item separately to the making of an enterprise agreement. Just as parties may either abandon claims, amend claims or add new claims. The very dynamics of bargaining permit all of this.

[37] Mr Wood was strong in his contention that the AWU’s offer to deal with redundancy through a deed made between the AWU and the Employer was put in response to the Employer deciding that redundancy would not be included in the enterprise agreement. As Mr Wood contended, he was bound by the good faith bargaining requirements of s.228 to give genuine consideration to the position adopted by the Employer in relation to redundancy and to respond to the proposal of the Employer to deal with redundancy outside the enterprise agreement.

[38] It is clear that the AWU were, in the words of Flick J, “actually trying to solicit agreement” from the Employer.

[39] The evidence of Mr Duff and Mr Stannard does not establish that the AWU “in truth has some other, extraneous intention, object or purpose or is seeking something other than an enterprise agreement under the FW Act”.(JJ Richards at 63)

[40] All of the circumstances of the matter before me have been taken into account and the conclusion to be drawn is that the AWU has and still is genuinely trying to reach agreement with the Employer as to the terms of an enterprise agreement.

3. That the proposed industrial action lacks a degree of specificity as would enable the Employer to take appropriate response measures

[41] The relevant authorities are set out in paras [36] - [46] of the Full Bench decision in EnergyAustralia Yallourn.

[42] The contention of the Employer is that the description of the proposed employee claim action is ambiguous because it is not clear which employees might engage in the proposed employee claim action. Therefore the Employer is unable to properly respond to the employee claim action.

[43] The Employer relied upon the evidence of Mr Stannard to support this contention.

“Ban on SAP notifications

30. On 14 August 2014, Mr Duff received via email a notice from the AWU of intention to take employee claim action. Mr Duff forwarded that email on to me.

31. Item 2 on that notice is "an indefinite ban on the entering of SAP notifications commencing at 12.01 am on Wednesday, 20 August 2014 and continuing until notified otherwise."

32. An SAP system is an enterprise resource planner used at LyondellBasell. One of the uses of the SAP system is to log, record and manage maintenance jobs at the Geelong Plant.

33. When equipment at the Geelong Plant requires maintenance, operators enter an SAP notification in the SAP system.

34. The maintenance trades personnel who perform the maintenance will access the SAP notifications on the SAP system to assess what maintenance tasks need to be done on any given shift, resource requirements and spare parts required to do the work. The maintenance trades personnel may modify or make notes on the SAP notifications, action the SAP notifications and close the SAP notifications out as completed.

35. Accordingly, maintenance trades personnel access and use the SAP notifications for the majority of their work. Therefore, in relation to Item 2 of the Notice, it is unclear whether the access and use of SAP notifications by maintenance trades personnel would also be included in "entering SAP notifications" (my emphasis) or if the ban on entering SAP notifications only covers the entry of SAP notifications by operators.

36. It is my understanding that some or possibly all of the maintenance trades personnel at the Geelong Plant are AWU members.

37. The key issue is whether the maintenance trades personnel are intending to take employee claim action and interpret Item 2 of the Notice as including using SAP notifications.

38. If maintenance trades personnel are taking industrial action in relation to using the SAP notification system, LyondellBasell Australia may be able to allocate them to other duties for a period, such as checking equipment but not carrying out any maintenance tasks or cleaning the workshop. However, it may also be the case that they are unable to perform their work for some or all of the period of industrial action.

39. If the maintenance trades personnel are imposing a ban on accessing the SAP notification system entirely, they will be unable to determine if the jobs have a safety priority, and record the details of any jobs that have been carried out. This is important for future planning and assessment of whether particular plant is reliable.

40. As LyondellBasell Australia is unsure if they are intending to take protected industrial action or not, it is unable to:

a. determine the extent to which maintenance trades personnel intend to perform their work; and

b. give notice of a reduction in payment during a partial work ban.

41. I expect employees may be similarly confused simply because in context “entering” will mean different things to different people.”

[44] Mr Duff gave evidence that when the AWU first sought a protected action ballot order the Employer challenged one of the questions proposed by the AWU. When taken to each of the questions on the protected action ballot decision and order issued by SDP Watson

[45] In EnergyAustralia Yallourn the Full Bench said:

“47. The CFMEU referred to the fact that the Appellant had not objected to the issue of the protected action ballot order which, as we have earlier noted, identified that one type of industrial action that would be taken would be “bans limiting the output of individual generators”. It submits that this was evidence that the Appellant understood the nature of the proposed industrial action. It submitted that in the circumstances permission to appeal should not be granted. We have considered this submission together with the terms of ss.437(3)(b), 443(3)(d) and 414(6). We have referred to the terms of these sections earlier. There is much to be said, in our opinion, for an argument that the detail of what is required when specifying the nature of the action as required by each section should be read consistently. If that is so it seems to us that the acceptance by the Commissioner that question 4 in the protected action ballot order adequately specified the nature of the proposed industrial action that would be taken then the use of those words in the s.414(6) notice may be adequate to comply with the requirements of that section. The only additional requirement would be to state the day on which that action would start and there was no issue in this appeal that that requirement had been satisfied. We acknowledge that the requirement in s.414(6) is to specify the proposed action not, as in the other sections, to specify the proposed industrial action. The Appellant suggests that this is of some consequence but the argument, not having been put below and principally arising on appeal because of questions from the Bench, was not developed further. We were not persuaded to rely upon this ground to dispose of the appeal. Whether this construction of the relevant sections of the FW Act is correct is best left to another occasion when an opportunity arises for it to be fully addressed.”

[46] The Full Bench in EnergyAustralia Yallourn drew attention to the difference in language between s.414(6) and each of s.437(b) and 443(3)(d) but in the circumstances of that matter declined to consider the difference in language.

[47] On considering each of those sections it appears clear to me that there is no conflict between the sections and that the term “proposed action” in s.414(6) means the same as the term “proposed industrial action” in each of s.437(b) and 443(3)(d).

[48] Each of s.414, 437 and 443 are to be found in Part 3-3 of the Act.

[49] Both s.437 and 443 are in Subdivision B of Division 8 of Part 3-3 of the Act.

[50] Section 435 provides the guide to Division 8 of Part 3-3 of the Act.

“435 Guide to this Division

This Division establishes the process that will allow employees to choose, by means of a fair and democratic secret ballot, whether to authorise protected industrial action for a proposed enterprise agreement.

Subdivision B provides for the FWC to make a protected action ballot order, on application by a bargaining representative of an employee who will be covered by a proposed enterprise agreement, requiring a protected action ballot to be conducted.

Subdivision C deals with the conduct of a protected action ballot.

Subdivision D deals with the effect of a protected action ballot.

Subdivision E deals with compliance matters in relation to a protected action ballot.

Subdivision F deals with the liability for the costs of a protected action ballot.

Subdivision G deals with records and other miscellaneous matters.

[51] Section 437 and 443 are as follows:

“437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(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 the FWC 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.