National Tertiary Education Industry Union v James Cook University

[2017] FWC 4752

[2017] FWC 4752

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.459—Protected action

National Tertiary Education Industry Union
v
James Cook University
(B2017/801)

COMMISSIONER BISSETT MELBOURNE, 25 SEPTEMBER 2017

Application to extend the 30-day period – most industrial action started – consideration of discretion – application granted – order issued.

[1] The National Tertiary Education Industry Union (NTEU) has made an application pursuant to s.459(3) of the Fair Work Act 2009 (FW Act) to extend the 30 day period within which authorised protected industrial action may be taken. The industrial action to which the application is directed was authorised by a ballot of NTEU members at James Cook University (JCU) who would be covered by the proposed agreement and for whom the NTEU was a bargaining representative.

[2] The Order 1 for the protected action ballot (the ballot) was made on 5 July 2017. The ballot was declared on 24 July 2017.

[3] The 30 day period within which industrial action must commence for it to remain authorised by the ballot was 22 August 2017.

[4] The declaration indicated that 82.7% of eligible voters participated in the ballot. Nine questions were asked of those voters. One question (question nine) was not supported by a majority of those who voted. The remaining questions were supported by between 60.1% and 88.6% of those who voted.

[5] It is not in dispute that industrial action has been taken pursuant to the ballot questions for the first time within the 30-day period required by s.459(d)(i) on the following dates (note that action may have been taken subsequent to a further notice on a date following the dates below):

● question 1 (in the form of a 1 hour stoppage) on 1 August;
● question 2 from 8-11 August;
● question 3 on 21 August;
● question 4 from 8-11 August;
● question 5 on 31 July 2107;
● question 6 on 22 August; and
● question 7 on 12 August (ban on Townsville Open Day), and 19 August (ban on Cairns Open Day). 2

[6] As is apparent the industrial action pursuant to questions 8 3 in the ballot has not commenced within the 30 day period. Question 8 in the ballot is: “Do you approve the use of bans or partial bans on the submission of invoices?”

[7] On 29 August 2017 (that is, outside the 30 day period) the NTEU gave notice that it intended to take industrial action in the form of three consecutive 10 minute stoppages of work on 4 September 2017. Such action was pursuant to question 1 on the ballot. Question 1 asked: “Do you approve the use of stoppages of work, being ten (10) minute stoppages and/or one-hour stoppages and/or 24-hour stoppages?”

[8] Clayton Utz, acting for JCU, wrote to the NTEU and suggested that the ballot had not authorised the taking of consecutive stoppages after the first 10 minute stoppage and therefore the second and third stoppages, would not be protected by virtue of the operation of s.459(2) of the FW Act.

[9] Further, Clayton Utz suggested that a 10 minute stoppage (and a 24 hour stoppage) of work was industrial action distinct from a one hour stoppage (which had been subject to a notice) and had not been subject to a notice of intent to take the industrial action within the 30 day period provided for by the FW Act. It suggested therefore that the taking of such action would not be protected industrial action.

[10] The NTEU proceeded with the 10 minute stoppage of work although withdrew the second and third consecutive stoppages. The NTEU does not concede that the authorisation of the 10 minute stoppage was not activated by other protected action taken pursuant to question 1 (the one hour stoppage).

[11] The NTEU seeks the 30 day extension to ensure that any 10 minute stoppage or 24 hour stoppage, in addition to action taken pursuant to questions 8, would be properly authorised (if it otherwise was not). The NTEU accept that, if the 10 minute stoppage already taken was not authorised, and therefore not protected, when taken on 4 September then the grant of this application will not make that instance of action protected,- that is any order does not operate retrospectively.

[12] At the hearing, the NTEU stated that it did not seek to have any extension of the 30 day period apply to proposed industrial action that was not supported by the ballot (i.e. question 9).

[13] JCU opposes the grant of the application by the NTEU.

[14] JCU submits that, in the circumstances of this case, members of the NTEU have not been frustrated in their capacity to take industrial action – in fact action has been notified and taken in relation to the majority of that authorised within the 30 day period. This, it says, can be contrasted to most applications for an extension to the 30 day period where little or no industrial action has been taken. Section 459(3), it submits, is not a provision for the purpose of mopping up, and making authorised, bits and pieces of action that might not have been taken with the 30 day period pursuant to s.459(1).

[15] In addition, JCU submits that there is no evidence that would allow the Commission to conclude that the majority of employees who participated in the ballot remain in favour of taking the action that would otherwise not be authorised. It says that very few employees who were eligible to participate in the one hour stoppages did so (63 on the first notice and 13 on the second) and that no staff members participated in the 10 minute stoppage. These levels of participation do not indicate any continuing desire to engage in action such that the 30 day period should be extended.

[16] JCU also submits that the context of bargaining has altered since the ballot was conducted. A number of further bargaining meetings have occurred and the agreement is currently subject to consideration and will be voted on by employees on 13-15 September 2017.

[17] JCU submits that, in any event, the conduct of the NTEU does not support the Commission exercising its discretion. JCU submits that:

• the NTEU has made false and misleading statements which breach the good faith bargaining requirements of the FW Act;



• the NTEU has issued of notices of intent to take protected industrial action that do not comply with the requirements of the FW Act;



• and the NTEU has encouraged its members employed by JCU to participate in industrial action that would not be protected.

[18] On this point JCU provided to the Commission shortly before the hearing a notice put out by the NTEU inviting members to a “NTEU staff forum” between 12noon and 2.00pm on specified days. It says that these meetings could be construed as strike action and, if so, would amount to encouraging members to participate in non-authorised or unprotected industrial action.

[19] JCU also submits that the NTEU has unduly delayed the application of an extension to the 30 day period and that it seeks an extension in relation to action that was not authorised by the ballot (that is, question 9).

Legislation

[20] Section 459 of the FW Act states

Circumstances in which industrial action is authorised by protected action ballot

Industrial action by employees is authorised by a protected action ballot if:

(a) the action was the subject of the ballot; and

(b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and

(c) more than 50% of the valid votes were votes approving the action; and

(d) the action commences:

(i) during the 30-day period starting on the date of the declaration of the results of the ballot; or

(ii) if the FWC has extended that period under subsection (3)--during the extended period.

Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.

(2) 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).

(3) The FWC may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a) an applicant for the protected action ballot order applies to the FWC for the period to be extended; and

(b) the period has not previously been extended.

[21] The grant of a 30-day extension is a discretionary decision of the Commission.

[22] I am satisfied that the NTEU was the applicant for the protected action ballot described above and that it has now made an application to the Commission to have the 30 day period extended.

[23] I am also satisfied that the 30 day period has not previously been extended.

Relevant case law

[24] In EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union 4 the Full Bench of the Fair Work Commission (the Commission) said:

[19] The purpose of the limitation in s.459(1)(d), that is, industrial action by employees “cannot be authorised by a protected action ballot” if it is not commenced within a period of between 30 and 60 days after the declaration of the ballot, is not identified in the relevant explanatory memorandum. Nevertheless, the effect of s.459(1)(d) is clear: once a ballot has been conducted and a particular form of action authorised, the employees must “use it or lose it”. However, there is no prohibition in the FW Act on an employee bargaining representative seeking a further authorisation of particular forms of action through a further protected action ballot. The best inference is that the prohibition in s.459(2) was intended to ensure that the authorisation arising from a protected action ballot could be relied upon in relation to the institution of a particular form of action only if the authorisation remained relatively fresh.

[20] In that context it would be sensible to confer a discretion on the Commission to address the merits of particular circumstances where it may be unfair or otherwise inappropriate to hold an employee bargaining representative strictly to the 30 day time limit in s.459(1)(d)(i) and impose upon them (and the employees they represent) the cost, delay and inconvenience of going back to scratch and making a fresh application for a new protected action ballot.

[21] There will be many cases where it would be entirely conducive to the purposes and objects of the FW Act, and Part 3-3 in particular, for the 30 period to be extended. In many cases it will be clear on evidence that majority employee support for the action in question continues to exist and that resort to the species of protected industrial action will be a legitimate way of seeking to achieve agreement where bargaining has stalled. The regime for authorisation by a protected action ballot is intended to be a “fair, simple and democratic process”. It is a feature of the regime that it may be utilised by ordinary employees as bargaining representatives (and not merely unions) and was intended for use by ordinary practical people as distinct from trained lawyers (compare Davids Distribution Pty Ltd v National Union of Workers (1999) 91 IR 198 at [83] and Kucks v CSR Limited (1996) 66 IR 182 at 184).

[22] The construction advanced by the Appellant would be likely to lead to a greater and sometimes unnecessary resort to protected industrial action. As the expiry of the 30 day period approaches, there will be a natural incentive for a union bargaining representative to initiate forms of protected industrial action authorised by a protected action ballot that have not yet been utilised in order to preserve their availability for future use in the bargaining, even if bargaining is progressing satisfactorily and appears likely to be successful without resort to action of that type. A prudent bargaining representative will take account of the possibility that bargaining may not be successful without resort to such protected industrial action. The construction for which the union contends it better attuned to the objects of the Act. We endorse the observations of O’Callaghan SDP in National Union of Workers v Symbion Pharmacy[2009] FWA 1284 at [10] and of Hampton C in Maritime Union of Australia v DP World Adelaide Pty Ltd[2010] FWA 7638 at [36].

…

[26] The Appellant also relied upon the prospect of an extension order having retrospective effect to confer protection on industrial action taken after the expiry of the 30 day period but before the extension order was made. An equivalent argument did not persuade the Full Court in Streimer v Tamas to a different construction. More importantly, we are not persuaded that, on the proper construction of s.459(1)(d), an extension order would retrospectively confer protection on industrial action that was unprotected at the time it was taken. Section 459(1)(d) focuses on when action “commences”. Conformably with the objects and purpose of the FW Act, the condition in s.459(1)(d)(ii) - “if FWC has extended [the 30 day period]” - should, on its proper construction, be tested as at the time the action commences. If there was no extension order at that time, the action will not be authorised under s.459.

[27] For all these reasons we conclude that the power conferred by s.459(3) may be exercised after the 30 day period in s.459(1)(d)(i) has expired, including in respect of an application made after the expiry of the 30 day period. If follows that the appeal must fail and we dismiss it.

[25] The Full Bench in that matter did not consider those matters that may be relevant to the exercise of the discretion to extend the 30 day period.

[26] InMaritime Union of Australia v DP World Adelaide Pty Ltd 5Commissioner Hampton found:

[28] The discretions in this matter are to be exercised judicially and all relevant considerations taken into account. This includes the scheme of the Act, the conduct and circumstances of the parties and the consequences of any extension that might be granted.

…

[32] In this case there is no contention that either party has not bargained in good faith. It is also common ground that as a result of the confirmation of positions in the lead up to the hearing of this matter, an in-principle agreement exists as to the basis of a proposed agreement between them.

[33] It is clear to me that Fair Work Australia should avoid an approach to these matters that would encourage a union from taking industrial action in part for the purpose of keeping open the option to take protected action beyond the 30 day period. Further, it would not be appropriate to penalise a party that has acted constructively by not utilising its right to take industrial action.

[27] After determining that he should exercise his discretion to grant an extension Commissioner Hampton observed:

[36] I accept that there may be occasions where it is appropriate that a fresh ballot be conducted after the initial 30 day period. However such would need to be approached in the knowledge that Parliament has provided for the potential of a one off extension without that course of action and there would in my view need to be some cogent reason to refuse an application on that basis alone. In this case, there is no suggestion that the employees have changed in composition or likely disposition. 6

[28] In Australian Manufacturing Workers’ Union v Mulgrave Central Mill Company Limited 7 Deputy President Asbury concluded:

[9] It has been held that the discretion should be exercised in situations where it can be demonstrated that bargaining is proceeding and an extension is consistent with the objects of the Act as specified in s.436. 8 The discretion is wide and is unconditioned by a statutory direction.9 Parliament has provided for a one off extension without the need for a further ballot, and cogent reasons are required to refuse an application for an extension, such as a change in disposition or composition of employees.10

[10] Circumstances in which an extension has been granted are that parties are bargaining in good faith; there is not a lengthy delay between the expiry of the original 30 day period and the application for an extension being made; 11 parties have participated in conciliation during the original 30 day period;12 or have refrained from taking industrial action and bargained constructively.13 It is also the case that if an overly restrictive view is taken of the circumstances in which the discretion will be exercised, the result will be that industrial action may be taken in a number of forms during the initial 30 day period, simply to preserve the right to take it after that period has expired. This outcome is not consistent with the objects in s.436 of the Act of establishing a fair and simple process.

Consideration

[29] The application for an extension to the 30 day period was made to the Commission some 13 days after the expiration of the initial 30 day period. It would be wrong however to conclude that the NTEU has done nothing during this period. In fact, it appears that it was the notification of intent to take the 10 minute industrial action made on 29 August 2017 that has caused this application.

[30] Clayton Utz, on behalf of JCU, raised issues about the validity of that notice in a letter to the NTEU on 1 September 2017. The application to extend the 30 day period was filed within two working days of that correspondence. To the extent that 10 minute or 24 hour stoppages may not otherwise be authorised, the effect of this application is that such stoppages, along with action taken pursuant to question 8, would be authorised by the ballot if taken within the extended period.

[31] In this case, however, a majority of the action authorised by the protected action ballot has already been taken such that the temporal connection between the end of the 30 day period and the date on which the extension was sought is, perhaps, not as critical as might be the case if no action had been taken. There is, in this case, a continued link between the protected action ballot application and this application to extend the 30 day period by industrial action that has been properly authorised and taken. In this case, only some action otherwise subject to approval by the ballot cannot be authorised because the 30 day period in which members are authorised to take the action has expired.

[32] I am not convinced however that an application made under s.459(3) of the FW Act should be made as if s.459(3) provides a means to just “mop up” action not taken. That the NTEU has taken an array of actions authorised by the ballot suggests that it strategically decided what action to take when and was aware of the need to take the industrial action or lose the capacity to do so. The fact that the NTEU miscalculated or mistook the extent to which it had taken action pursuant to the ballot does not weigh in favour of the grant of the application.

[33] Whilst JCU take issue with aspects of the conduct of the NTEU, it has not sought to exercise any of its rights under the FW Act to stop unprotected industrial action, seek bargaining orders or assistance with bargaining. Further, it is clear that, in circumstances where there has been a question raised by JCU as to the validity of action notified, the NTEU has responded to minimise the chance of members taking unprotected industrial action. In this respect the conduct of the NTEU does not weigh against the exercise of my discretion. Having reached this conclusion, however, NTEU might have better regard to the necessary care in the formation of its notices to JCU and correspondence with members.

[34] JCU expressed concern that NTEU has not made it clear on what action the 30 day extension will have effect on. While I appreciate the information JCU seeks, s.459(3) of the FW Act does not require the action that may or may not have commenced during the initial 30 day period to be explained. Nor does it require any order issued extending the 30 day period to specify the action on which the order will have effect. An order made pursuant to s.459(3) of the Act is to do no more than to extend the 30 day period within which industrial action remains authorised by the ballot. To suggest otherwise is to give greater meaning to the words in the legislation than intended.

[35] A failure to grant the application will not protect JCU from protected industrial action authorised by the ballot. Much of that action has been notified and taken, including stoppages of one hour’s duration. It will do no more than possibly provide some expansion of the action able to be taken if such action is properly notified and meets the requirements of the FW Act..

[36] Further, the grant of the application will not, of itself, affect the bargaining process. As JCU put it, bargaining occurred prior to the action commencing and bargaining has continued since authorised action commenced. An extension to the 30 day period that may result in a further ban being implemented and potentially resulting in a 10 minute or 24 hour stoppage could not be seen as such an escalation to adversely affect the bargaining.

[37] JCU provided figures on the number of employees who had participated in the one hour stoppages of work notified by the NTEU and the single 10 minute stoppage (which in any event it suggests was not protected). It is apparent that action has been notified and taken by employees whose bargaining representative is the NTEU. Participation in various types of industrial action may vary and in noting this, caution should be exercised in selecting one type of action, then producing figures that suggest low participation in the action and then relying on this to claim little support for action not yet taken. Whilst the figures presented by JCU might weigh against the exercise of my discretion I have placed little reliance on them because I have no grounds to find that they paint a full picture of the support of the group of employees for any protected industrial action particularly in circumstances where the 10 minute stoppage, on JCU’s own submissions, was not protected.

[38] Whilst I accept that there has been some delay in making the application for an extension to the 30 day period and that this would normally weigh against the grant of the application I am satisfied that, in the particular circumstances of this case, there is a reasonable explanation for that delay.

[39] I have not had regard to the suggestions that the 10 minute stoppage on 4 September 2017 may not have been protected industrial action. No application for orders in relation to unprotected industrial action is before me and none was made to the Commission in relation to that stoppage.

[40] I accept that negotiations have occurred since the declaration of the protected action ballot. On the submissions of JCU there was also substantial bargaining prior to the ballot (a total of 41 bargaining meetings, five of which occurred after the protected action ballot). It is apparent that an agreement has not been reached between the bargaining representatives and that a proposed agreement is to be put to employees for vote from 13-15 September 2017. 14

[41] Given these dates the application to extend the 30 day period will be of no effect if the employees of JCU vote to support the agreement but may have some effect should they not. The result of the voting on the agreement will be known before or at the time of any action notified pursuant to an order I have issued. Should the vote of the agreement not support the making of the agreement JCU will be open to a more extended range of potential industrial action than it would be if the 30 day period was not extended.

[42] In EnergyAustrlaia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union 15the Full Bench of the Commission said:

[21] …The regime for authorisation by a protected action ballot is intended to be a “fair, simple and democratic process”. It is a feature of the regime that it may be utilised by ordinary employees as bargaining representatives (and not merely unions) and was intended for use by ordinary practical people as distinct from trained lawyers… 16

[43] In view of this observation it would be wrong to impose an arduous test on the exercise of my discretion.

[44] In this case I have decided, on fine balance, to grant the 30 day extension sought by the NTEU. I have done so as there is no evidence that the wishes of the employees who participated in the ballot has changed – there has been no great turnover of staff such that the ballot result might be markedly different if taken today and only limited evidence of some action allegedly not being taken.

[45] Further, some action has been taken, suggesting the employees are engaged in the industrial action as part of bargaining. If the ballot of employees on the proposed agreement is successful my decision becomes mute – there will be no scope to take protected industrial action.

[46] The grant of an extension to the 30 day period cannot give protection to action that was otherwise not protected at the time it was taken. 17 The power to grant the extension does not have retrospective effect in this way.

[47] The power granted to the Commission under s.459(3) of the FW Act is not one that allows for the 30 day period to be extended only in respect of some of the action supported in the protected action ballot. The discretion is to extend the 30 day period. The remaining requirements for the action to have been authorised set out in s.459(1)(a)-(c) remain. An extension to the 30 day period cannot make action otherwise not authorised change its character. Likewise, that a question on the ballot was not supported by a majority of employees who participated in the ballot is not changed by this decision being issued.

[48] For these reason I granted the application to extend the 30 day period in accordance with s.459(3) of the FW Act.

COMMISSIONER

Appearances:

H. Cray and M.Cameron for James Cook University

S.Roberts and M.McNally for National Tertiary Education Industry Union

Hearing details:

2017.

Melbourne

September 11.

 1   PR594365.

 2   Attachment D.

 3   During the hearing of the application the NTEU clarified that it did not rely on question 9 and accepted that any action taken pursuant to that question would not be authorised because it was not supported by a majority of those who voted in the ballot.

 4   [2013] FWCFB 2022.

 5   [2010] FWA 7638.

 6   Ibid.

 7   [2016] FWC 4976.

 8   National Union of Workers v Symbion Pharmacy Services Pty Ltd [2009] FWA 1284 per O’Callaghan SDP at [11].

 9   Re: Transport Workers’ Union of Australia [2011] FWA 1097 per Lewin C.

 10   MUA v DP World Adelaide Pty Ltd [2010] FWA 7638 per Hampton C.

 11   National Union of Workers v Symbion Pharmacy Services Pty Ltd .

 12   AMACSU and Others v Flinders Operating Services Pty Ltd T/As Alinta Energy [2011] FWA 4617 per Bartel DP.

 13   MUA v DP World Adelaide Pty Ltd.

 14   At the time of issuing this decision it is apparent that ballot failed.

 15   EnergyAustrlaia Yallourn Pty Ltd v CFMEU[2013] FWCFB 2022.

 16 Ibid at [22].

 17 Ibid at [26].

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