Maritime Union of Australia, The v Fremantle Port Authority
[2009] FWA 919
•3 NOVEMBER 2009
[2009] FWA 919 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
v
Fremantle Port Authority
(B2009/10869)
Maritime industry | |
COMMISSIONER WILLIAMS | PERTH, 3 NOVEMBER 2009 |
Proposed protected action ballot by employees of Fremantle Port Authority.
[1] The Maritime Union of Australia (MUA) has applied to Fair Work Australia (FWA) for an order for a protected action ballot to be conducted.
[2] The ballot is to determine whether employees of the Fremantle Port Authority (FPA) wish to engage in particular protected industrial action for a proposed enterprise agreement. The application purports to be made under s.437 of the Fair Work Act 2009 (the Act).
[3] FWA’s role in determining applications for a protected action ballot order is set out in Section 443 of the Act as follows:
“s. 443 When FWA must make a protected action ballot order
(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.
(2) FWA 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;
(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.”
[4] Further s. 441 (2) states:
“ (2) However, FWA must not determine the application unless it is satisfied that each applicant has complied with section 440.”
[5] Section 440 requires that within 24 hours of making an application, the applicant must give a copy to the employer and the Australian Electoral Commission or person who the applicant wishes to be the ballot agent. There is no dispute that the MUA has complied with section 440.
[6] In summaryFWA is required to make a protected action ballot order if the application has complied with paragraph 443(1)(a) and it is satisfied that that the conditions in paragraph 443(1)(b) have been met .
[7] Section 437, which is referred to in paragraph 443(1)(a), relevantly includes:
“s. 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 FWA 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) ….
(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) are represented by a bargaining representative who is an applicant for the protected action ballot order.”
[8] The FPA submit that the onus is on the MUA to demonstrate that the application has met the requirements of s.443. The FPA argue that is not the case in this instance because:
A. The application is not properly made under s. 437 because the questions in the ballot do not comply with s. 437(3)(b) because they do not adequately specify the nature of the proposed industrial action.
B. The MUA have not met the requirement in s. 443(1)(b) to satisfy FWA that they have been and are genuinely trying to reach an agreement because:
I. one of their claims, regarding labour flexibility, is not a permitted matter,
and
II. claims regarding back pay and the retrospective operation of the proposed agreement are claims that cannot be included in an agreement.
[9] Evidence was given for the MUA by Mr Tracey and for the FPA by Mr Ward and Mr Turner.
The questions – s. 437(b)
[10] Each of the four questions in the application includes a preamble asking employees whether they authorise industrial action for the purposes of advancing claims in the negotiation of an agreement. This wording is not controversial. Each question then ends as follows:
“1. an unlimited number of stoppages of work of 4 hours duration?
2. an unlimited number of stoppages of work of 12 hours duration?
3. an unlimited number of stoppages of work of 24 hours duration?
4. an unlimited number of stoppages of work of 48 hours duration?
[11] It was submitted for the FPA that the questions do not adequately specify the proposed industrial action. The contention was that the questions do not enable the employees to be adequately informed about the consequences for themselves or for other persons in respect of the proposed industrial action 1.
[12] It was argued that for employees to make an informed choice or decision as to whether they wish to authorise the proposed industrial action the questions must contain sufficient detail to allow employees to know what the consequences will be, to them and others, of the proposed industrial action 2.
[13] It was submitted that for employees to make an informed choice they would, for example, need to understand the impact of the industrial action on their income, either directly if they take industrial action or indirectly where they do not take industrial action but could be stood down because others take industrial action 3.
[14] The FPA referred to the decision of the Australian Industrial Relations Commission in United Firefighters Union of Australia and Country Fire Authority 4. In this decision the Full Bench found that:
“Nature of the proposed industrial action
[20]As noted above, the requirement in s.452(1)(a) is that the application for a protected action ballot must include the question or questions to be put to the relevant employees in the ballot, including the nature of the proposed industrial action. If industrial action is approved by a secret ballot, and all other pre-requisites for protected action are present, a written notice to the employer of intended industrial action is required to state the nature of the intended action and the day when it will begin (see s.441(6)). It was submitted by Mr. Parry SC, who appeared with Mr O’Grady for the CFA, that the use of the same words in s.441(6) and s.452(1) requires a similar approach - albeit that the notices are directed on the one hand to an employer, and on the other, to employees. As a matter of construction we believe this is correct. Further, while the intention of the legislature can only be gleaned from the provisions of the legislation in this case, it appears logical that when employees are asked whether to authorise industrial action in a protected action ballot, the nature of the proposed industrial action is expressed clear enough to enable them to make an informed choice.” (Emphasis added).
[15] The Full Bench then continued to review the questions proposing industrial action and concluded that in some questions the industrial action mentioned was merely a description of a general category of unspecified action and consequently found the questions were vague and meaningless 5. The Full Bench also found that while some of the bans mentioned as proposed industrial action were specified others were expressed only by reference to vague concepts6.
[16] Having thus reviewed the proposed industrial action mentioned in the questions the Full Bench concluded that:
“[31]In determining whether to engage in protected action it is reasonable to expect, and in our view a requirement of the Act, that the nature of the proposed industrial action is specified. In our view, this requires employees who will be voting on the questions to understand what work would not be undertaken and what work would remain to be done. The description of the nature of the industrial action in the questions they are asked in the ballot should enable employees to understand the implications for them while at work, and other relevant circumstances.” (Emphasis added).
[17] In my view this decision of the Full Bench focuses on there being specificity in the questions only as to the nature of the proposed industrial action. This is necessary, particularly where bans rather than stoppages are proposed, so that employees understand what work will be done and what work wont be done if industrial action is authorised by the ballot. The reference to employees being informed is to employees being informed about what the proposed industrial action would be. The reference by the Full Bench to employees understanding the implications for them is to employees knowing, under a particular ban, what work would and would not be done.
[18] I do not accept that the references by the Full Bench to employees being able to make an “..informed choice” and being able “..to understand the implications for them..” of authorising particular industrial action extends as far as the FPA argues, to the questions posed having to clarify issues regarding the consequences or implications of taking particular industrial action.
[19] The FPA’s submission in this regard is similar to that argued by the employer in Australian Municipal, Administrative, Clerical and Services Union v Electricity Networks Corporation trading as Western Power 7. In that matter I decided as follows:
“[10] The additional information suggested by the respondent to be included before the questions does not in my view add anything to the clarity of the questions in terms of the nature of the industrial action proposed. What the respondent seeks is some thing different from clarifying the nature of the industrial action. What is sought is additional words that provide a fuller context for the employees, in particular reminding them of other forms of industrial action they have previously voted on. This goes beyond the clarity of the questions in my view. This is akin to previous cases where employers have argued that broader issues such as the history of other parties involvement 8, the claims being pursued in bargaining9 or the ramifications of other legislative schemes for employees10 should be explained in preambles to the questions on the ballot paper. All such proposals when opposed by the applicants have been rejected by the tribunal.
[11] In my view there is nothing in the legislation that supports the inclusions the respondent seek, over the applicants objection.”
[20] This remains my view and I am not satisfied that the questions in this matter by not explaining the consequences and implications of the industrial action as the FPA submit they must, fail to meet the requirements of s.437(3)(b).
[21] Separately the FPA argue that the reference in each of the questions to an “unlimited number of stoppages” means that they do not meet the requirements of s. 437 (3) (b). The FPA argues that stoppages of work as a phrase is not capable of being understood by employees when described as an unlimited stoppage. It is submitted that the word unlimited of itself renders the questions meaningless because what unlimited means is what it says and it is the very antithesis of particular industrial action which is what section 437(s)(b) requires 11.
[22] In making this submission the FPA acknowledge that the balance of the tribunal's decisions to date are against them on this point 12.
[23] Having considered the FPA's submissions on this point I see no reason to depart from the earlier decisions of the tribunal and I am satisfied that the questions in this application are sufficient for the purposes of s. 437 and s. 443 of the Act.
The Labour flexibility claim
[24] The FPA submit that the MUA have throughout the negotiations and certainly up to the time that this application was lodged pursued a claim for labour flexibility. The FPA argue that the labour flexibility claim is not a permitted matter. Therefore it is argued the MUA cannot meet the requirement in s. 443(1)(b) that they have been genuinely trying to reach an agreement.
[25] The difference between the parties on this point is that while the MUA agree that they have been pursuing a claim for labour flexibility they deny that this claim is not a permitted matter.
[26] It is agreed between the parties that the initial negotiations were predicated on the basis that the parties were seeking to reach agreement on variations that would be made to be the existing Certified Agreement. The evidence is clear and it is not controversial between the parties that in early September 2009 the MUA changed its approach and advised the FPA that they no longer wanted to vary the existing Certified Agreement but rather now wanted to negotiate a new agreement. This is plain from the detail of a chain of e-mails between Mr Tracey and Mr Wade 13.
[27] This history is of some significance because there was a debate as to whether the tribunal in considering this application should have regard to events and actions that occurred during the period when the parties were only seeking to settle on variations to the existing Certified Agreement. In other words what occurred in the period prior to the MUA making a decision that it wanted to negotiate a new agreement should be ignored.
[28] In my view all the circumstances including the actions and the events that occurred during the parties earlier negotiations for a variation rather than a new agreement are able to be considered in determining this application. It is clear from the e-mail dated September 6 to Mr Wade from Mr Tracey, which is part of Exhibit A 1, that what had occurred in the prior negotiations would be carried over into the negotiations for the new agreement as follows,
“ I apologise for any misunderstanding in this regard and request that we meet to continue negotiations for a new agreement. I also don't believe that there is need for a departure from the current context of what has been agreed and disagreed as the context of what has occurred so far should continue to inform us for the contents of our new agreement. Effectively it is just the form of the agreement that will change the substance remains the same. In that regard those matters still identified as remaining outstanding between us are still outstanding and those matters agreed still remain agreed. There are, in my view, no non-permitted matters that have been discussed but if going forward we identify some they will have to be removed. I don't believe this is an issue though.”
[29] Consequently I have had regard for all of the evidence concerning the negotiations for a variation to the existing Certified Agreement and the subsequent negotiations for a new agreement.
[30] The evidence is that certainly at 1 October 2009 the MUA was pursuing a claim for a flexibility of labour agreement. This is itemised in an e-mail from Mr Tracey of that date to Mr Wade and Mr Turner and others 14. The same claim15 is identified by the FPA as being outstanding between the parties in an Enterprise Bargaining Update that was distributed to some employees dated 8 October 200916.
[31] The reference in this document reads as follows:
“ The following points are those areas where the parties are still apart and are provided with Fremantle Port's comments in italic text:
1. Incorporation into the agreement a flexibility of labour clause similar to the previous one (but which was dealt with as a separate agreement). Fremantle Ports reiterated that they are comfortable to continue with our current process of discussing and resolving such issues in the consultative committee.” (sic)
[32] The evidence of Mr Tracey was that the MUA had been pursuing the labour flexibility claim at the time that this application was made and continued too but only to the extent that any parts that are not permitted won't be pressed 17.
[33] The background is that in 2004 the parties made an unregistered agreement 18 that deals with labour flexibility (the 2004 agreement). Relevantly the 2004 agreement establishes a two tier arrangement for the use or casual staff19. Tier 1 casual staff were to be direct employees of the FPA. Tier 2 staff would be employed by labour hire companies.
[34] The 2004 agreement states that:
“Tier 1 identified staff will generally be engaged in the first instance for casual engagements. Within operational constraints including the skills, qualifications and capability of individuals, the offering of casual engagements shall be generally done on an equitable basis.
Tier 2 casual staff will be brought in on an ad hoc basis as operationally required, generally through labour hire companies where Tier 1 staff are not available. ”
[35] Mr Tracey accepts that the 2004 agreement was the basis for the MUA labour flexibility claim but says that they did not seek to include any non-permitted matter in the new agreement.
[36] The evidence of Mr Wade was that his understanding of the MUA's position all along had been that they sought something similar to the 2004 agreement on labour flexibility to be included in the new agreement that was being negotiated 20. He was he said, prior to hearing the evidence given by Mr Tracey during this matter, not aware that the MUA had moved away from this position21.
[37] The evidence of Mr Turner 22 was consistent with that of Mr Wade regarding the history of the MUA’s claim for labour flexibility and also that it was only during the hearings of this application had he heard that the MUA was not seeking an equivalent provision to the 2004 agreement identified as Exhibit R 2.
[38] Reviewing the evidence of Mr Tracey I note he says that the MUA is not seeking a labour flexibility provision that would be a non-permitted matter. I observe however that the MUA did not point to any documentation that sets out the details of their labour flexibility claim that would support the tribunal in concluding that their claim does not overreach into being a non-permitted matter.
[39] I also note the blanket denial Mr Tracey included in his email to Mr Wade that the MUA was not seeking any non permitted matters.
[40] In determining whether an applicant is genuinely trying to reach an agreement such a blanket denial may be given some weight where a claim that historically has been accepted as permitted is subsequently found, through tribunal decisions, not to be so but this is not the case here.
[41] Here the MUA had rightly recognised the issue of non permitted matters was something it needed to be cognisant of. Being a registered organisation acting as a bargaining representative of employees the MUA can be expected to know what is and isn’t a permitted matter. A bargaining representative carelessly pursuing a claim for a non permitted matter cannot rely on a general denial that it is not seeking non permitted matters when FWA is deciding whether the genuinely trying test has been met. Such a general denial cannot override the reality of the claims a bargaining representative makes.
[42] In addition I note Mr Tracey’s evidence that the MUA is currently having discussions with the FPA about concerns the MUA have regarding the FPA use of labour hire employees rather than casuals at the Kwinana bulk terminal 23.
[43] Having considered Mr Tracey’s evidence regarding the labour flexibility claim and the evidence of Mr Wade and Mr Turner I have formed the view that Mr Tracey’s evidence was tailored to avoid a finding that the MUA in pursuing its claim for labour flexibility is seeking anything that may not be a permitted matter. To that extent I do not accept his evidence.
[44] My finding is that the MUA has been and is seeking a labour flexibility claim that would restrict or qualify the right of the FPA to use contractors as they choose.
[45] The case law on such issues of contractors was recently reviewed by a Full Bench in Australian Postal Corporation v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 24. Here the Full Bench relevantly concluded that:
“[43] It is apparent that the scheme of the FW Act is that the substantive terms of an enterprise agreement are to be about permitted matters. Since an enterprise agreement is made by employees approving a proposed enterprise agreement, it follows that the substantive terms of a proposed enterprise agreement are also to be about permitted matters.
[44] As a result, an applicant for a protected action ballot order pursuing a claim as a substantive term of a proposed enterprise agreement which is not about a permitted matter is not genuinely trying to reach an agreement with the employer of the employees to be balloted.”
[46] And further that:
“[55] The evidence reveals that, while in November 2008 the CEPU was seeking contracting out provisions to the extent permitted, by 18 December 2008 the CEPU was seeking changes to contractor provisions to require Australia Post to advertise every position internally and to only contract out a position if it is not wanted by an Australia Post employee.
[56] The issue of whether a claim about contractors is a matter pertaining to the relationship between an employer and its employees was considered by French J, as he then was, in Wesfarmers Premier Coal Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (No. 2). 53 His Honour found that “provisions restricting or qualifying the employer’s right to use independent contractors” are not matters pertaining to the employment relationship.54
[57] Contractor provisions requiring Australia Post to advertise every position internally and to only contract out a position if it is not wanted by an Australia Post employee are “provisions restricting or qualifying the employer’s right to use independent contractors”. 55 The CEPU sought such provisions as a substantive term of the proposed enterprise agreement. The claim was not minor, trivial or ancillary. Therefore, by 18 December 2008, the CEPU was seeking a matter not pertaining to the employment relationship as part of EBA7. Nor do such provisions fall within any of the other categories in s.172(1) of the FW Act.
[58] There is a lack of detail in the CEPU’s claims in respect of contractors for EBA7 post-18 December 2008. However, given the history of the negotiations between the parties and the failure of the CEPU to abandon its claim of 18 December 2008 or make clear to Australia Post after 18 December 2008 that it was not pursuing a contractor claim that does not pertain to the employment relationship, 56 we considered it could be assumed that after 18 December 2008 the CEPU’s claims in respect of contractors for EBA7 included those sought by them on 18 December 2008.
[59] As a result, the CEPU has been and is pursuing as a substantive term of the proposed enterprise agreement a claim in respect of contractors which is not about a permitted matter for a proposed enterprise agreement under the FW Act. Her Honour’s conclusion to the effect that from 10 November 2008 the CEPU ceased to press its claim for Australia Post to include a clause in EBA7 in relation to contractors that was not permissible was in error. 57
[60] Since the CEPU has been and is pursuing as a substantive term of the proposed enterprise agreement a claim in respect of contractors which is not about a permitted matter, we were not satisfied the CEPU has been, and is, genuinely trying to reach an agreement with Australia Post, being the employer of the employees to be balloted.
[61] As a result a jurisdictional pre-requisite for making the protected action ballot order sought by the CEPU in its s.437 application concerning Australia Post employees, excluding Post Logistics’ employees, was not satisfied. Her Honour erred in concluding otherwise. 58 We therefore decided to uphold the appeal and quash her Honour’s decision in so far as it concerned Australia Post’s employees excluding those employed in Post Logistics and to dismiss the s.437 application of the CEPU concerning Australia Post and its employees excluding those employed in Post Logistics.
[62] We add that we did not need to deal with the issue of whether a person who reasonably believes they have been and are pursuing a claim about a permitted matter as a substantive term of a proposed enterprise agreement has been, and is, genuinely trying to reach an agreement. Given the authority in Wesfarmers case and the status of those in the CEPU who were pursuing the claim, the CEPU could not have reasonably believed the aforementioned claim in respect of contractors that it had been and was pursuing as a substantive term of the proposed enterprise agreement was about a permitted matter.”
[47] Considering the evidence and case law above I find that the labour flexibility claim made by the MUA is not a matter pertaining to the relationship between the FPA and the FPA’s employees whom would be covered by an agreement. This claim is not about permitted matters as defined in s. 172 of the Act.
[48] Consequently I find that the MUA is not genuinely trying to reach an agreement. As a result the jurisdictional pre-requisite in s. 443(1)(b) for making the protected action ballot order sought by the MUA is not satisfied and on this ground the application must be dismissed.
The back pay and retrospective operation claim
[49] The FPA argue that the MUA by pursuing a claim for back pay and/or retrospective operation of the agreement are pursuing claims that cannot be achieved under the Act and so it is submitted they are not genuinely trying to reach an agreement.
[50] I have considered the witness evidence regarding this issue and I do accept that the MUA had been pursuing a claim that has been identified variously as being a claim for back pay and/or retrospectivity.
[51] The evidence of Mr Tracey however on this point was that this claim amounts to nothing more than a claim for an amount of money that recognizes the time that has passed between the expiry of the existing agreement and the making of a new agreement and that for this period the employees have not received the increases proposed in the new agreement. In his evidence he referred to the payment of such an amount as being a sign-on bonus or an annual bonus.
[52] In considering whether a particular claim being pursued in negotiations is a permitted matter or not what is relevant is the substance or nature of that claim. What the claim has been titled or labelled may be an indicator as to whether the claim is a permitted matter or not but is not of itself the determining factor.
[53] In this case I do not accept that the evidence supports a finding that the MUA has been seeking the retrospective operation of a new agreement contrary to the Act. I accept the claim is as the MUA says simply a claim for money. I do not accept the argument of the FPA that the substance of the claim is such that I should find the claim is not a permitted matter. There has not been sufficient put here to satisfy me that the MUA’s pursuit of the claim referred to as back pay and/or retrospectivity demonstrates that they have not been or are not genuinely trying to reach agreement. I reject this ground of opposition by the FPA to the application.
Conclusion
[54] For the reasons explained above the applicant has not satisfied the jurisdictional requirements for this application so the application must be dismissed.
COMMISSIONER
Appearances:
Mr. L Edmonds of Unity Legal for Maritime Union of Australia
Mr. T Caspersz of Jackson McDonald Lawyers for Fremantle Port Authority
Hearing details:
Perth:
2009
October 26, 27.
1 Transcript PN 14
2 Transcript PN 671
3 Transcript PN 672 and 673
4 PR973841
5 PR973841 at [29]
6 PR973841 at [30]
7 B2009/10726
8 PR981430 para 91 to 96
9 PR982025 para 12 and 13
10 2009 FWA 187 paras 63 to 71
11 Transcript PN 686 and 687
12 2009 FWA 187, 2009 FWAFB 368 and 2009 FWA 815.
13 Exhibit A 1
14 Exhibit A 3
15 Transcript PN 105 to 108
16 Exhibit R1
17 Transcript PN 116 to 120
18 Exhibit R 2
19 Transcript PN 531 to 536
20 Transcript PN 449 to 473
21 Transcript PN 355 to 371
22 Transcript PN 536 to 550
23 Transcript PN 153 to 166
24 (C2009/10364 and C2009/10366) [2009] FWAFB 599
Printed by authority of the Commonwealth Government Printer
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