National Tertiary Education Industry Union v SAE Institute Pty Ltd
[2023] FWC 1144
•15 MAY 2023
| [2023] FWC 1144 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437—Protected action
National Tertiary Education Industry Union
v
SAE Institute Pty Ltd
(B2023/441)
| COMMISSIONER MATHESON | SYDNEY, 15 MAY 2023 |
Proposed protected action ballot of employees of SAE Institute Pty Ltd
The National Tertiary Education Union (NTEU or Applicant) has made an application under s.437 of the Fair Work Act 2009 (Cth)(Act) for a protected action ballot order in relation to employees of SAE Institute Pty Ltd (Respondent) who will be covered by the proposed enterprise agreement (Agreement), are employed by the Employer, and are represented by the Applicant or are a bargaining representative for themself but are a member of the Applicant (Employees).
The Respondent filed submissions on the afternoon of 15 May 2023, objecting to the application on a number of grounds. A conference was held on 15 May 2023 to deal with the objections and through discussion the parties were able to narrow the grounds in dispute to one discrete issue and amended draft orders were filed by the Applicant reflecting this.
A hearing was held on the evening of 15 May 2023 to determine the application, dealing with the remaining issue in dispute.
The remaining issue in dispute relates to the questions to be put to employees who are to be balloted and relates to the inclusion of the term “partially”. The question as presented in the draft orders is as follows:
“6. QUESTIONS
In support of reaching an Enterprise Agreement with SAE Institute, do you authorise industrial action against your employer, to be taken separately, partially, concurrently and/or consecutively, on any number of occasions, in the form of:
1. Stoppages of work of between 5 minutes and 24 hours in duration?
[ ] Yes [ ] No
2. Indefinite stoppages of work?
[ ] Yes [ ] No
3. A ban on working overtime?
[ ] Yes [ ] No4. A ban on preparation for events hosted or endorsed by SAE Institute?
[ ] Yes [ ] No
5. Making statements while working explaining why members of the union are taking industrial action?
[ ] Yes [ ] No
6. A ban on participation events hosted or endorsed by SAE Institute?
[ ] Yes [ ] No
7. A ban on performing work unless wearing clothing or badges in support of the NTEU or the NTEU’s bargaining campaign?
[ ] Yes [ ] No
8. A ban on the use of video conferencing facilities?
[ ] Yes [ ] No
9. A ban on use of SAE Institute’s online systems?
[ ] Yes [ ] No
10. A ban on attending meetings with supervisors/managers/the Dean?
[ ] Yes [ ] No.”
The Respondent submitted that:
· The proposed question to employees who are to be balloted suggests that various forms of “industrial action” are to occur “partially” and in conjunction with some other named industrial action (i.e. “and” in this sense meaning together in some fashion), “or” to the exclusion of some other named industrial action.
· On a plain reading of the question as put, the use of the word “partially” is likely to induce an employee to conclude that “partially” stopping work, or “partially” striking (as proposed in questions 1 and 2) whether in combination with another form of industrial action or not, or before or after some other form of industrial action, is something less than stopping work, or striking. The Respondent submitted that such a conclusion does not allow the employee to respond to the question as put.
The Respondent relied on John Holland Pty Ltd v AMWU and AWU[1]in support of its submission.
The Respondent’s written submissions also made reference to NUWNSW Branch v FreshExchange Pty Ltd[2]. In that matter the application sought that the following question be put to employees:
“In support of reaching a union collective agreement with your employer do you support the taking of protected industrial action against your employer which may involve one or more of the following: 1 hour stoppages of work; 2 hours stoppages of work; 3 hours stoppages of work; 4 hours stoppages of work; 8 hours stoppages of work; 12 hours stoppages of work; 24 hours stoppages of work; 48 hours stoppages of work; 72 hours stoppages of work; strikes for a period of one week; indefinite strikes; indefinite or periodic bans on overtime of storage service employees who are members of the National Union of Workers, New South Wales Branch engaged at the Arndell Park Site.”
In NUWNSW Branch v FreshExchange Pty Ltd Vice President Watson said:
“[10] In my view the legislation requires an application to propose a question and contain other details about the industrial action and other relevant matters such as will permit employees to make an informed choice on whether to authorise the particular action specified in the question. A question which is ambiguous or does not permit such a result does not comply with the requirements for a valid application.”
In declining to make the ballot order in the form sought, the Vice President went on to find that the proposed question to be put to employees was ambiguous and was not expressed in terms that would enable employees to make an informed choice on the industrial action they were asked to authorise.[3] In this regard the Vice President said:
“[11] In my view the proposed question to be put to employees is ambiguous. Employees are proposed to be asked whether they support one or more of twelve specified forms of industrial action. An employee may support some but not all of the twelve forms of industrial action specified in the question and therefore may reasonably answer YES to the question. A positive vote would ostensibly provide authorisation for all twelve forms of industrial action. Yet in reality a majority of members may not support some or any of the twelve forms of industrial action. Hence authorisation may be thought to have been given when the majority of union members do not in fact support the particular action.
[12] In my view the confusion created by the wording of the question arises from the mixing of notions of authorisation on the one hand and taking industrial action on the other. What is apparently being sought is authorisation for all twelve forms of industrial action. But because the union apparently does not propose to organise and take all twelve forms of industrial action it has sought to convey the limited practical application of the action by the use of the phrase “one or more” in the question. The mixing of these notions has resulted in a misleading and ambiguous question which cannot, in my view, lead to the views of employees who vote on the question being expressed in the ballot.”[4]
The Applicant directed me to the Full Bench matter of National Tertiary Education Industry Union v Curtin University[5]in which ballot questions similar to those proposed by the Applicant were allowed on appeal. The Respondent submitted that this matter is to be distinguished on the basis that the subject matter of the appeal was the nominated ballot agent, and the alleged ambiguity in the proposed “bans”.
The Respondent submitted that it does not object to the proposed questions regarding “bans” on various types of activity but rather objects only to the word “partially” and that it is appropriate and reasonable to adjust the text of the question by omitting that word.
Legislation
Section 437 of the Act provides that:
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.
….
(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed agreement.
(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.
Section 176(1)(b) of the Act provides that for enterprise agreements that are not greenfields agreements, an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:
(i) the employee is a member of the organisation; and
(ii) in the case where the agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in operation – the organisation applied for the authorisation;
unless the employee has appointed another person under s.176(1)(c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under s.178A(2) of the Act.
Section 443 of the Act governs when the Commission must make a protected action ballot order, providing as follows:
“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.”
Consideration
The Agreement is a single enterprise agreement.
Is the Applicant a bargaining representative for the Agreement?
It is not contested, and I am satisfied that the Applicant is a bargaining representative for the Agreement.
Has there been a notification time in relation to the proposed Agreement?
It is not contested, and I am satisfied that here has been a notification time in relation to the Agreement.
Matters to be specified in the application
The application made by the Applicant specifies:
· the group or groups of employees who are to be balloted (s.437(3)(a);
· the person the Applicant wishes to be the protected action ballot agent for the protected action ballot, being TrueVote Pty Ltd (s.437(3)(c).
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 (s.437(4)). TrueVote was specified as the person which the Applicant wished to be the protected action ballot agent.
An application must also specify the questions to be put to employees who are to be balloted, including the nature of the proposed industrial action (s.437(3)(b).
In National Tertiary Education Union v Curtin University [2022] FWCFB 204 the Full Bench considered when an application for a protected action ballot will comply with the requirement in s.437(3)(b) and will therefore have been “made under section 437” for the purposes of s.443(1)(a). While the Full Bench did not directly consider the implication of the inclusion of the word “partially” in the questions to be put to employees, its observations in relation to the construction and application of s.437(3)(b) remain relevant. In this regard, the Full Bench said:
“[53] In summary, therefore, an application for a protected action ballot order will comply with the requirement in 437(3)(b), and thus will have been “made under section 437” for the purpose of s 443(1)(a), if it specifies a question or questions, capable of being answered “yes” or “no” by the employees participating in the ballot, which propose(s) action of an identified character, kind or sort capable of constituting industrial action within the meaning of s 19(1). A question which meets these requirements can be expressed and understood in ordinary industrial English, and there is no requirement for legalism, technicality or pedantry in the drafting or analysis of such questions. In our view, the proposition that, beyond these requirements, the questions must be interrogated to identify ambiguity in aid of enabling “informed consent” goes beyond the text of the provision and constitutes a gloss on the statute. The concept of “informed consent” is inapposite to a protected action ballot since, unlike a vote to approve an enterprise agreement, there is no requirement for genuine agreement[6] and those voting are not bound by the result (in the sense there is no requirement for any employee to actually take industrial action which has been authorised by a ballot and for which a s 414(1) notice has been issued[7]). We therefore affirm that paragraph [19] of the decision in John Holland states the correct approach to the construction and application of s 437(3)(b). The statements of principle in FreshExchange are not consistent with that approach and should not be followed.”
The paragraph in John Holland affirmed by the Full Bench is as follows:
“[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”.
During the hearing the Respondent submitted that the employee is not able to “partially” engage in industrial action of a type contemplated in questions 1 and 2 of the proposed orders, i.e. stoppages or work between 5 and 24 hours in duration and indefinite stoppages of work. The Respondent submitted that it may be the case that groups of employees were taking action and some were not and that might meet the definition of “partial” and “partially” but when it comes to an individual it cannot be the case that they are “partially” on strike. The Respondent submitted that the inclusion of the word partially means that an employee is incapable of responding to at least questions 1 and 2 of the ballot relating to stoppages of work.
The Applicant, while acknowledging that individual employees are required to respond to the ballot questions, submitted that the intent behind the inclusion of the word “partially” is that it does indeed contemplate that certain cohorts or parts of the workplace may engage in industrial action. The Applicant submitted that the Respondent has misidentified the test to be applied in deciding whether the questions are capable of being responded to and that on the test put forward by the Respondent a high level of specificity would be required in the framing of questions that would almost be impossible to meet as different types of employees perform different types of work. The Applicant took me to National Tertiary, Education Union v Curtin University[8] in which the Full Bench, in considering John Holland[9] said:
“[47] It can be seen that the Full Bench adopted a high bar for concluding that a question is incapable of being responded to: it must contain language that “deprive[s] the question of meaning”, or be “meaningless” or “nonsensical”. Further, the Full Bench eschewed a “technical and pedantic approach.”
The Applicant took me to the matter of National Tertiary Education Union v RMIT University[10] where the employees were asked to consider the question of “partial bans”, being bans which were to potentially impact some but not all of RMIT’s operations and students. While that matter did not deal with the wording of questions to be the subject of a ballot that are in question in this application, I observe that individual employees participating in a ballot may not necessarily end up taking the action described in that ballot. As noted by the Applicant, industrial action may be implemented in many different ways at the point at which it is called to be taken. As noted by the Full Bench in National Tertiary Education Union v Curtin University[11]there is a need to distinguish between what must be specified pursuant s.437(3)(b) in an application for a protected action ballot order and what must be specified in a notice of employee claim action under s.414(1), which, by virtue of s.414(6) requires the specification of the nature of the proposed industrial action.[12]
Having regard to the principles to be applied in the proper construction of s.437 as set out in John Holland[13] and affirmed by the Full Bench in National Tertiary Education Union v Curtin University[14] I am not persuaded that the inclusion of the word “partially” in chapeau to the questions proposed by the Applicant means that the questions describe the industrial action in such a way that employees are not capable of responding to them. The inclusion of the word “partially” does not deprive the questions of meaning. When the types of industrial action listed in the questions are considered including work stoppages (of varying possible durations), bans and making statements while working, it is difficult to see how the term could be reasonably understood in a way other than as described by the Applicant in an industrial context (i.e. action taken by certain cohorts or parts of the workplace). The drafting of a question is generally a matter for the Applicant and there is no requirement for legalism, technicality or pedantry in the drafting of such questions in order to capture this intent. I am satisfied that the Applicant has complied with the requirement in 437(3)(b).
Has the Applicant been, and is it, genuinely trying to reach an agreement with the employer of the employees who are to be balloted?
In order to make the order I must be satisfied that the Applicant has been, and is, genuinely trying to reach an agreement with the Respondent as the employer of the employees who are to be balloted. On the basis of the material before me, including the Form F34B – Declaration in support of an application for a protected action ballot order, I am satisfied that the Applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
With the matters in s.437 and s.443 of the Act having been complied with, it follows that a protected action ballot order must be made.
Protected action ballot agent
On the basis of the statutory declaration of Stephen Donaldson, managing director of TrueVote Pty Ltd, dated 13 April 2023, I am satisfied that TrueVote Pty Ltd is a fit and proper person to conduct the ballot. As noted above, TrueVote was specified as the person which the Applicant wished to be the protected action ballot agent. TrueVote Pty Ltd will be the protected ballot agent for the ballot.
An order has been separately issued in PR761911.
COMMISSIONER
Appearances:
Mr C Smith on behalf of the Applicant.
Mr B Gee of FCB Workplace Law on behalf of the Respondent.
Hearing details:
2023.
Sydney, (By Telephone using Microsoft Teams).
May 15.
[1] [2010] FWAFB 526 at [19].
[2] [2009] FWA 221.
[3] [2009] FWA 221 at [13], [15].
[4] [2009] FWA 221 at [11] - [12].
[5] [2022] FWCFB 204.
[6] See ss 186(2)(a) and s 188.
[7] Boral Resources (NSW) Pty Ltd [2010] FWAFB 1771 at [13]-[14].
[8] [2022] FWCFB 204.
[9] [2010] FWAFB 526 ay [19].
[10] [2013] FWCFB 954.
[11] [2022] FWCFB 204.
[12] [2022] FWCFB 204. At [51].
[13] [2010] FWAFB 526 at [19].
[14] [2022] FWCFB 204.
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