Maritime Union of Australia, The v Flinders Adelaide Container Terminal Pty Ltd
[2017] FWC 3795
•21 JULY 2017
| [2017] FWC 3795 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Maritime Union of Australia, The
v
Flinders Adelaide Container Terminal Pty Ltd
(B2017/595)
COMMISSIONER HAMPTON | ADELAIDE, 21 JULY 2017 |
Proposed protected action ballot of employees of Flinders Adelaide Container Terminal Pty Ltd – union bargaining representative – significant bargaining during life of present enterprise agreement – application shortly after nominal expiry – whether genuinely trying to reach an agreement – whole of context and circumstances relevant to that assessment – satisfied that union genuinely trying to reach an agreement – other requirements met – form of questions considered – ballot order issued.
1. Introduction
[1] The Maritime Union of Australia (MUA) made an application under s.437 of the Fair Work Act 2009 (the Act) for the Commission to issue a protected action ballot order (PABO) in relation to certain employees of Flinders Adelaide Container Terminal Pty Ltd (FACT).
[2] The application was made in the context of negotiations for a replacement enterprise agreement to apply to employees of FACT that are presently covered by the Flinders Adelaide Container Terminal Enterprise Agreement 2014-2017 (the current EA).
[3] The PABO was opposed by FACT on the basis that the MUA had not met one of the statutory prerequisites for the making of such an order; namely, that the MUA has not and is not genuinely trying to reach an agreement. During the course of proceedings, Mr Colgrave (of counsel), who appeared with permission for FACT, accepted that there were developments since the application had been lodged which had impacted upon its original objections. However, FACT retained its contention that the MUA had not been, at the point of making the application, genuinely trying to reach an agreement and that this prevented the PABO being made.
[4] It was not in dispute that the various other statutory requirements for the making of the application and the issuing of the PABO had been met. However, FACT raised some concerns about the questions proposed by the MUA in the ballot order itself.
[5] The application was heard on 19 July 2017 at which time I received evidence from the MUA and heard submissions from both parties. Having considered that material in the context of the various statutory requirements, on 20 July 2017 I issued a PABO, 1 largely in the terms sought by the MUA with some modification to the ballot questions as discussed by the parties during the hearing. In so doing, I indicated that I would subsequently issue reasons for that decision.
2. The factual context
[6] The factual context for this matter is based upon the largely common positions and the evidence 2 of Mr Jamie Newlyn, South Australian Branch Secretary of the MUA, which was not substantively challenged by FACT.
[7] The current EA has a nominal expiry date of 30 June 2017. That agreement also contains a provision committing the parties to commence negotiations for a new enterprise agreement some six months before its nominal expiry.
[8] Bargaining for a replacement enterprise agreement commenced in February 2017.
[9] In total, there were 12 bargaining meetings between the parties prior to the making of the application, with one of these taking place after the nominal expiry of the current EA. The MUA has attended each of these bargaining meetings and been represented by senior officials and delegates.
[10] On 3 February 2017, the MUA tabled a log of almost 50 claims to FACT and the parties also discussed a number of issues including meeting protocols, time frames and general conduct at that time. FACT also presented a detailed overview of its current business position and its business priorities. During the discussions, FACT agreed to review the Log of Claims and provide detailed feedback.
[11] The second bargaining meeting was conducted on 9 February 2017. Following that meeting, FACT sent a document to the MUA and employee representatives dated 9 February 2017 titled "Company Bargaining Discussion Points: Items for negotiated trade-off”, which was a table identifying a number of the MUA claims and FACT's position in relation to those claims.
[12] At the seventh bargaining meeting on 31 March 2017, FACT made a formal, without prejudice offer to the MUA and employees to resolve the negotiations. The offer broadly proposed agreement in relation to a number of the MUA claims in exchange for the MUA and employees agreeing to a number of claims made by FACT.
[13] Between 31 March 2017 and 6 July 2017 the parties met on five further occasions to progress the enterprise agreement negotiations. In those meetings, various claims and counterclaims were discussed including revised proposals. Further, the log of claims “spreadsheet” was updated to reflect provisionally agreed changes, claims that were still to be considered, and claims that were not agreed.
[14] On 1 June 2017, the bargaining meeting discussed feedback that the MUA had obtained from its membership on a number of key issues and on 22 June 2017, these and other matters were further discussed.
[15] On 6 July 2017, the parties again met to progress the negotiations, and discuss the terms and conditions for a new enterprise agreement. At the commencement of the meeting, the parties discussed the outstanding issues, and agreed outcomes arising from the negotiations to that point. During the meeting the MUA also tabled a written proposal to resolve its outstanding claims. The document included the cost saving offsets for FACT if agreement was reached. After tabling the document the MUA explained its position in relation to the outstanding claims and its various proposals.
[16] On 13 July 2017, a written response to the MUA’s most recent proposals was provided by FACT and that correspondence sought a response from the Union and referred to the next scheduled meeting of the bargaining group on 18 July 2017.
[17] This application was lodged on 14 July 2017.
[18] On 18 July 2017, the parties met again with the MUA represented by its delegates. That meeting discussed various costs estimates and the parties “agreed” on one or more additional items.
[19] Despite that progress, there is presently no agreement at the bargaining committee level on the terms of a new enterprise agreement, including what the MUA considers to be some key items.
3. The requirements for the making of a PABO
3.1 The immediate statutory provisions
[20] The Act relevantly provides 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.
(2) Subsection (1) does not apply if the proposed enterprise agreement is:
(a) a greenfields agreement; or
(b) a multi-enterprise agreement.
(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.
Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).
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.
438 Restriction on when application may be made
(1) If one or more enterprise agreements cover the employees who will be covered by the proposed enterprise agreement, an application for a protected action ballot order must not be made earlier than 30 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be).
(2) To avoid doubt, making an application for a protected action ballot order does not constitute organising industrial action.
…
440 Notice of application
Within 24 hours after making an application for a protected action ballot order, the applicant must give a copy of the application to the employer of the employees who are to be balloted, and:
(a) if the application specifies a person that the applicant wishes to be the protected action ballot agent—that person; or
(b) otherwise—the Australian Electoral Commission.
441 Application to be determined within 2 days after it is made
(1) The FWC must, as far as practicable, determine an application for a protected action ballot order within 2 working days after the application is made.
(2) However, the FWC must not determine the application unless it is satisfied that each applicant has complied with section 440.
…
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.”
[21] Leaving aside the disputed jurisdictional issue, I was satisfied that each of the other requirements had been met in this case. This included that there had been a notification time 3 in relation to the proposed enterprise agreement and that the MUA was eligible to bring the application and had done so in accordance with the Act.
3.2 The role of a PABO application in the bargaining scheme
[22] The role of the PABO, and consequently the role of the Commission in considering any such application, is established by the terms of the Act. Essentially, a PABO is a necessary step for a bargaining representative to ultimately seek the capacity to take protected industrial action in support of bargaining for a single enterprise agreement.
[23] Under s.443 of the Act, the Commission must make a PABO if all of the statutory requirements have been met. There are some discretionary judgments involved in assessing those requirements. 4 If satisfied, the making of the PABO itself is not a matter of discretion or a case of the Commission needing to be persuaded that that course of action is appropriate or even necessary to further the bargaining process.
[24] The PABO is part of the bargaining regime of the Act. The scheme of the Act is outlined in various decisions of the Commission including in John Holland v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and The Australian Workers’ Union 5 and by the Federal Court in J.J. Richards & Sons Pty Ltd v Fair Work Australia.6
[25] The taking of protected industrial action by both employees and employers, provided that it is designed to advance claims and to persuade the other party to change their position, is part of that scheme. This must be undertaken in the context of, amongst other requirements, the relevant party genuinely trying to reach an enterprise agreement as part of a bargaining process that has commenced under the terms of the Act.
[26] Whether any proposed industrial action becomes protected will ultimately depend on compliance with the statutory parameters including whether a relevant question is supported by the ballot,7 whether the action is notified in accordance with the requirements of the Act,8 and whether it is industrial action within the meaning of the Act.9 Further, an employer who is subject to threatened, impending or probable industrial action may seek to have such action suspended or terminated on various grounds including whether it endangers the life, personal health or safety, or the welfare, of the population or of part of it or causes significant damage to the Australian economy or an important part of it,10 or causes significant economic harm.11 Industrial action that is not protected industrial action may be prevented.12The employer may also, in relevant circumstances, take response industrial action. 13
[27] The Commission may also play an important role in assisting the parties to resolve a bargaining dispute. In general terms, under s.240 of the Act, if one or more of the bargaining representatives applies, the Commission may deal with the dispute, including by arbitration, if the parties have agreed to that power being exercised.
3.3 The proper approach to whether an applicant has been, and is, genuinely trying to reach an agreement
[28] Amongst other matters, the Commission must be satisfied under s.443(1)(b) of the Act that each applicant in a s.437 application has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
[29] In Esso Australia Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU); The Australian Workers’ Union (AWU) 14 (Esso), a Full Bench of the Commission summarised the approach to be adopted in the following terms:
“[54] The reference to the Commission being ‘satisfied’ means that whether or not the requisite circumstance exists is a discretionary decision. Section 443(1)(b) directs attention to the conduct of the applicant. The expression ‘has been, and is’, imports temporal considerations. The Commission’s attention is thereby directed to the applicant’s prior conduct at the time the application for a protected action ballot order is determined. Given the context the reference to ‘an agreement’ is plainly a reference to an enterprise agreement within the meaning of Part 2-4 of the FW Act. The clear inference from s.172(1) is that the substantive terms of enterprise agreements should be confined to permitted matters, though the Commission is not required to scrutinise each agreement to ensure that all its terms are about permitted matters and the statutory requirements for the approval of an agreement (ss 186-187) make no express reference to the concept of permitted matters (also see s.253).
[55] Section 443(1)(b) does not contain any words which limit the circumstances in which the Commission may be satisfied that an applicant ‘has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted’. Further, the Explanatory Memorandum to what became s.443 supports the proposition that the legislature did not intend that any one factor would necessarily be determinative of the question of whether the applicant is genuinely trying to reach an agreement with the employer. The relevant parts of the Explanatory Memorandum to what became s.443 states:
1771. For joint applications, each applicant must be and must have been, genuinely trying to reach an agreement with the relevant employer. A finding by FWA that there is no majority support for collective bargaining is not of itself intended to be determinative of the question of whether the applicant is genuinely trying to reach an agreement with the employer.
1772. It could be the case that an applicant engaged in pattern bargaining (as defined in clause 412) in relation to the relevant employer would not be genuinely trying to reach an agreement, based on the indicia listed in subclause 412(3) (e.g., the applicant may not have been prepared to take into account the individual circumstances of the employer in bargaining for the agreement). (emphasis added)
[56]Neither of the paragraphs set out above support the proposition that it was intended that any one factor would be determinative of the issue in s.443(1)(b).
[57] Whether an applicant ‘has been, and is, genuinely trying to reach an agreement’ is a question of fact to be decided having regard to all of the facts and circumstances of the particular case. Such a construction of s.443(1)(b) is consistent with the judgment of the Full Court in JJ Richards and with a number of Full Bench decisions of the Commission (see Total Marine; Pelican Point Power Limited v ASU; JJ Richards No.1; Alcoa; JJ Richards No.2 and Farstad ) .” (endnotes omitted)
[30] As cited by FACT in its written submissions and relied upon by the MUA, in Total Marine Services Pty Ltd v The Maritime Union of Australia15 (Total Marine) an earlier Full Bench said:
“[30] The requirement that an applicant for a ballot order genuinely try to reach an agreement and be continuing to do so at the time an application for a ballot order is made was a requirement in the Workplace Relations Act 1996. The wording of the relevant section has been altered because of the removal of a process of establishing a bargaining period during which protected action may be taken. The concept of genuinely trying to reach an agreement was dealt with in other parts of the Workplace Relations Act 1996, specifically in relation to the grounds for terminating a bargaining period.
[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. 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.”
[31] In Esso the Full Bench stated:
“For our part, for reasons we articulate later, we agree with the observations in paragraph [31] and the first three sentences of paragraph [32] of Total Marine, set out above. We note that the observations which follow the first three sentences in paragraph [32] are obiter and although we do not consider that they should be understood as attempting to establish any binding decision rule, nonetheless they are, with respect, somewhat inconsistent with the earlier expressed proposition (with which we agree) that it is not useful to articulate any alternative test or criteria to the words of s.443(1)(b). We note that similar reservations were expressed by the majority of the Full Bench in JJ Richards and Sons Pty Ltd v TWU (JJ Richards No.1) and by the Full Bench in Farstad Shipping (Indian Pacific) Pty Ltd v MUA (Farstad).” 16(endnotes omitted)
[32] I do not understand that this means that a PABO application may not in fact be premature. Rather, the Full Bench in Esso was cautioning against the adoption of any sort of decision-rule or additional test.
[33] As also cited by the Full Bench in Esso, in JJ Richards & Sons Pty Ltd v Fair Work Australia17 the Federal Court was dealing with a circumstance where the employer had refused to bargain. Flick J determined, in effect, that the Commission cannot reach a state of satisfaction that an “applicant ... is ... genuinely trying to reach an agreement with the employer” unless:
● an applicant has approached the employer and informed the employer of the general ambit of that for which agreement it sought; and
● the employer has foreshadowed - even in the most general terms - its attitude as to the proposed agreement.18
[34] Flick J also went on to observe in the same decision that the above “minimum statement” was “sufficient to dispose of the present application however more may be required and much may well depend on the factual scenario in which the terms of s.443(1)(b) are to be applied.”19
[35] I note further that Flick J also observed that the addition of the term “genuine” in the phrase genuinely trying to reach agreement “serves to emphasise the importance of a person actually trying to solicit agreement.” His Honour continued that:
“[u]ntil a proposed agreement has been disclosed to the prospective parties, and that response elicited, an applicant has not even tried to reach agreement - let alone genuinely tried to reach agreement.”20
[36] Accordingly, it is the actions and apparent intentions of the MUA that must be assessed in order to ascertain whether it has been, and is, actually trying to solicit an agreement with FACT. All of the facts and circumstances must be considered in reaching a conclusion about that jurisdictional fact.
[37] The MUA must satisfy the Commission that this fact and the other requirements have been met. 21
4. Has the MUA been genuinely trying to reach an agreement with FACT and is it still doing so?
[38] The MUA set out the basis of its case substantially in the affidavit of Mr Newlyn. I have accepted that evidence but note that the direct statement that the MUA had been, and is, genuinely trying to reach an agreement as set out therein, is ultimately a matter for this Commission to determine.
[39] In essence, FACT contended that the Commission should not be satisfied the MUA had been and is genuinely trying to reach an agreement on two grounds. Firstly, that the evidence of Mr Newlyn was insufficient for the Commission to conclude satisfaction with that requirement. Secondly, that the application was premature, largely on the basis that there had only been one bargaining meeting after the end of the nominal life of the current EA and the MUA had failed to respond to the most recent correspondence and proposal from the employer prior to making this application.
[40] As outlined earlier, during the course of the proceedings, FACT modified its position to some extent in light of certain developments that took place after the lodgement of the application. Those developments included that the MUA had responded to its most recent correspondence and progress on some of the issues in dispute was made at the most recent bargaining meeting. It also accepted that there was now additional evidence before the Commission about the bargaining process. In that light, without necessarily conceding that the MUA was now genuinely trying to reach an agreement, it contended that the Commission could not be satisfied that the Union was genuinely trying to reach an agreement at the point of the application and that this was the first temporal requirement established by s.443(1)(b) of the Act. That is, that the applicant has been genuinely trying to reach an agreement.
[41] The MUA contended that the Commission could be satisfied that it had been genuinely trying to reach an agreement at all relevant times and that the first temporal requirement in s.443(1)(b) was not limited to the point of the application being made, but rather, the point of the determination being made by the Commission.
[42] As relied upon by Mr Jacka who appeared for the MUA, in Coles Supermarkets (Australia) Pty Ltd v The Australasian Meat Industry Employees Union, 22 the Full Bench observed:
“[45] The requirements in s.443(1)(b) of the Act that “the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement” involves two distinct temporal considerations. The use of the present tense “is genuinely trying to reach an agreement” requires satisfaction that, at the time of the determination, the applicant is trying to reach an agreement. The use of the past tense “has been genuinely trying to reach an agreement” requires satisfaction that the applicant had been trying to reach an agreement prior to the time of determination – applying the approach set out in Swire and JJ Richards in the course of the negotiations.” 23
[43] It is not clear to me that the Full Bench was dealing with precise temporal issue raised by the parties. However, I do not need to determine the temporal aspect of the disputed positions as I consider that the MUA was genuinely trying to reach an agreement at both points in time raised by the parties.
[44] I consider that the evidence of Mr Newlyn demonstrates that the MUA was at the point of making the application and prior to the time of the determination, and is at the point of making the determination, genuinely trying to reach an agreement with FACT. That evidence outlined the steps that the Union has taken to pursue that objective and there is no sense in which it is not genuinely seeking that outcome. Amongst other matters, it has advanced claims, attended various meetings with the employer represented by relevant senior officials and delegates, and considered and responded to alternatives advanced by FACT. It has also made some concessions and continues to be ready, willing and available to hold further discussions. In terms of the fact that the MUA had not replied to the most recent correspondence before making this application, this took place against the backdrop of a series of bargaining meetings and in the knowledge that a response would be expected at the next scheduled meeting; which did occur.
[45] The events that have taken place subsequent to the application confirm that the MUA remains genuinely pursuing an agreement with FACT. Although there has been more progress, the parties appear to be some distance apart in their bargaining positions, but in any event, that circumstance does not undermine the proposition advanced by the Union about its objectives in this matter.
[46] In terms of the timing of the process given the nominal life of the current EA, I do not consider that this indicates a lack of genuine pursuit of an enterprise agreement. Section 438 of the Act provides that an application for a PABO must not be made earlier than 30 days before the nominal expiry date of the enterprise agreement. The application has been after that expiry date. More importantly in the present context, the fact that an application can be made during the nominal life of an enterprise agreement is a strong statutory indication that the overall conduct of the parties may be relevant to the assessment of the applicant’s conduct and objectives, even if it takes place during the nominal life of an existing agreement.
[47] I can see no warrant to discount the bargaining and actions of the MUA that occurred during the nominal life of the current EA. At best, the circumstances reveal that the MUA is keen to put the prospect of taking protected action on the table in pursuit of its bargaining position and has sought to do so relatively soon after that has become an option. For reasons set out earlier in this decision, such is not of itself inconsistent with the scheme of the Act or the genuineness of its pursuit of an agreement with FACT.
[48] Having regard to all of the relevant circumstances, I am satisfied that the MUA has been and is genuinely trying to reach an agreement with FACT as the employer of the employees it proposes to ballot.
5. The form of ballot questions
[49] The second ground of objection, broadly stated, is that the ballot questions are such that the members of the MUA will be unable to make an informed choice.
[50] Two issues were raised by FACT in that context. One of those issues, reference to “for an indefinite period” which was proposed for a series of questions (5 to 9 inclusive) concerning certain bans, was accommodated by the MUA and the PABO as issued has removed that phrase from the relevant questions.
[51] The second issue concerned questions 1 to 8 inclusive, which involve various stoppages of work for a period between 4 and 24 hours. As an example, question 1 poses the following question:
“In support of reaching an enterprise agreement with Flinders Adelaide Container Terminal Pty Ltd, do you authorise protected industrial action against your employer separately, concurrently, and/or consecutively in the form of:
1. An unlimited number of stoppages of work of 4 hours duration which may be organised or arranged in consecutive periods?
Yes [ ] No [ ]”
[52] FACT contended that this question is so uncertain that the MUA members will not know the boundaries of the proposed action and thereby cannot provide an informed response. The MUA contended that the concept of a work stoppage taking place for a series of consecutive periods was not uncommon in PABOs and that the potential boundaries of such action would be clear to the membership who were to vote.
[53] This issue has been considered by a Full Bench in John Holland v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and The Australian Workers’ Union. 24 This has also been dealt with, amongst other members by Thatcher C in The Maritime Union of Australia v Total Marine Services,25 and on appeal by the Full Bench in Total Marine.
[54] In John Holland, the Full Bench indicated that:
“[17] Reference should also be made to the effect of s.459(2). Section 459 deals with the circumstances in which industrial action is authorised by a protected action ballot. Section 459(2) reads:
“459 Circumstances in which industrial action is authorised by protected action ballot
…..
(2) [First period only subject of ballot] If:
(a) the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and
(b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;
then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).”
[18] It is apparent that this sub-section operates so that consecutive periods of industrial action are not protected unless the ballot which authorised the action so provides. We think this explains the inclusion of the word “consecutively” in the preamble to the questions in the ballot application in this case.
[19] Moving now to the construction of s.437 itself, seen in its statutory context, all that the section requires is that the questions should describe the industrial action in such a way that employees are capable of responding to them. If the questions are ambiguous or lack clarity there may be consequences for the bargaining representative and the employees if reliance is placed on the result of the ballot in taking industrial action. If the question or questions give rise to ambiguity, the conclusion may be reached that the industrial action specified in a notice under s.414 was not authorised by the ballot and that the action is not protected for the purposes of s.409(2). It is true that ambiguity or lack of clarity in the description of the industrial action is undesirable, but these are matters more appropriate for consideration under other provisions. It follows that in most cases the drafting of the questions will be a matter for the applicant.
[20] The appellant’s criticism of the questions in the AMWU application is based on a technical and pedantic approach. The expression “separately, concurrently and/or consecutively” does not deprive the question of meaning. Those expressions apply, as far as there is scope, to the types of industrial action specified. We have already noted the terms of s.459(2) which gives separate justification for the term “consecutively”. While it is possible to construct extreme examples of the number of types of industrial action which might be authorised by an affirmative answer to the questions, in practical terms the questions do no more than identify eight types of industrial action and the possible options for taking each of those types of action.
[21] The criticism of question eight is unfounded. It might have been clearer to split that question into two parts, one dealing with indefinite bans on overtime and one with periodic bans. But the question is not meaningless. Seen in its full context the question asks whether employees will endorse bans on overtime which are either indefinite or periodic. An affirmative answer would indicate endorsement of both types of ban.
[22] Nor do we accept the criticism that questions one to eight, taken together, are nonsensical. An employee can endorse a number of different types of industrial action even if the deployment of one type may logically exclude another. There is no reason why employees cannot be asked to endorse a range of options.”
[55] In Total Marine the Full Bench was dealing with one or more ballot questions that referred to the term ‘unlimited’ and stated as follows:
“[38] The further ground of appeal relates to the nature of the questions asked. Commissioner Thatcher concluded that the questions asked in the ballot are sufficient to enable employees to understand the nature of the protected action they will be asked to authorise. We believe he was correct in that view.
[39] TMS is critical of the use of the term ‘unlimited’ in relation to the particular forms of industrial action. The precise length of any action will be determined subsequently by the bargaining agent who organises the action and the members of the union who choose to participate. It is inevitable that the precise timing and length of the action is not determined at the stage of authorisation. But in voting to authorise the action the employees would have no doubt of the outer limits of the action involved. In our view the requirements for an application are satisfied.”
[56] The capacity to take nominated periods of work stoppages in consecutive periods does lead to the potential for the actual stoppages to be longer in practice than the notionally specified period. However, I have considered the precise questions in context as proposed here in light of the approach evident in the above authorities. I find that the relevant questions are such that the members of the MUA will be in a position to make a meaningful endorsement as to the nature and outer limits of the proposed action. That is, the MUA members will know that the potential industrial action may be taken in consecutive periods with the consequence outlined earlier. I note also that this is arguably the effect of the preface to the questions and this is the issue directly dealt with by the Full Bench in John Holland. In that light, the confirmation within each question that the consecutive periods are possible is perhaps more conducive to an informed decision. It will of course be necessary for the MUA to give appropriate specified notice 26 if the ballot supports that option and industrial action is ultimately proposed.
6. Conclusions and orders
[57] I found that the statutory requirements of s.443 of the Act had been met and that the proposed PABO was in order. I was also satisfied that the form of the ballot questions as modified were appropriate.
[58] Accordingly, I was obliged to, and did, issue the PABO on 20 July 2017.
[59] I also confirm my earlier advice to the parties that should they seek the Commission’s assistance to deal with the bargaining dispute, either or both parties could make an application under s.240 of the Act. Given the lengthy nature of bargaining to this point, and the fact that whilst progress is apparently still being made no agreement has been reached, this might be a useful option.
COMMISSIONER
Appearances:
A Jacka with J Newlyn for The Maritime Union of Australia.
I Colgrave of counsel, with permission, for Flinders Adelaide Container Terminal Pty Ltd.
Hearing details:
2017
Adelaide
19 July.
1 PR594672.
2 Statutory Declaration, Supplementary Affidavit and attachments - Exhibit MUA 1.
3 Section 173(2) of the Act – in this case the employer agreed to bargaining and the bargaining commenced in February 2017.
4 Esso Australia Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU); The Australian Workers’ Union (AWU)[2015] FWCFB 210 at [54].
5 [2010] FWAFB 526.
6 [2012] FCAFC 53.
7 Sections 437, s 408 and 409 of the Act.
8 Section 414 of the Act.
9 Section 19 of the Act.
10 Section 424 of the Act.
11 Section 423 of the Act.
12 Section 418 of the Act.
13 Section 411 of the Act.
14 [2015] FWCFB 210, per Ross J, Hatcher VP and Simpson C.
15 [2009] FWAFB 368, per Watson VP, Hamberger SDP and Roberts C.
16 [2015] FWCFB 210 at [35].
17 [2012] FCAFC 53.
18 JJ Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53 at PN58.
19 Ibid.
20 Ibid at PN59.
21 See the authorities summarised in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Kraft Foods Ltd (2010) IR 12 at [29].
22 [2015] FWCFB 379.
23 This is consistent with the statement of the temporal elements in Esso at [54].
24 [2010] FWAFB 526.
25 [2010] FWA 187.
26 Section 414 of the Act.
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