National Union of Workers v CSL Limited T/A CSL

[2015] FWC 5949

[2015] FWC 5949

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot

National Union of Workers
v
CSL Limited T/A CSL
(B2015/1190, B2015/1191)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 2 SEPTEMBER 2015

s.459 applications to extend the 30 day period in which industrial action is authorised by protected action ballot order; whether making an enterprise agreement covering some employees covered by a protected action ballot order precludes further industrial action; whether the 30 day period should be extended in these circumstances; applications granted.

Introduction

[1] On 19 June 2015 the Fair Work Commission (the Commission) constituted by Senior Deputy President Watson, acting pursuant to s.443 of the Fair Work Act 2009 (Act), made two protected action ballot orders in respect of certain employees at CSL Limited (CSL) for whom the National Union of Workers (NUW) is a bargaining representative in respect of two proposed enterprise agreements. 1 Prior to the making of these orders, bargaining between the parties had been ongoing. The scope and number of agreements that would cover these and other employees was and remains in issue.

[2] The Australian Electoral Commission (AEC) was in each case authorised to conduct the ballot. On 17 July 2015 the AEC declared a result in each case and it is apparent on the face of the declaration of results published by the AEC that in respect of each question posed in the ballot seeking approval for particular industrial action, a majority of employees approved the industrial action proposed. 2

[3] On 13 August 2015 the NUW applied pursuant to s.459 of the Act in respect of each order to extend the 30 day period during which industrial action that was authorised by the protected action ballot must commence. CSL opposed any extension of the 30 day period. At the commencement of the hearing of the application I granted permission to CSL for it to be represented by a lawyer. I did so because I was satisfied that the grant of permission would enable the matter to be dealt with more efficiently taking into account the complexity of the matter. The complexity arose in my view as a consequence of the nature of the objections proposed to be raised by CSL and in particular consideration of the extent to which employees who are covered by an agreement that has been made but not approved by the Commission could take protected industrial action and the extent to which those employees could be the subject of a valid application for a protected action ballot, if the NUW were forced to make fresh application.

[4] By separate orders each dated 20 August 2015 I extended the 30 day period during which industrial action that was authorised by the protected action ballots may begin, to 14 September 2015. 3

[5] These are my reasons for making the orders.

Factual context

[6] The following factual matters are not controversial: 4

• On or about 13 August 2015 a majority of employees to be covered by an agreement proposed by bioCSL approved that agreement (bioCSL Agreement);



• The bioCSL Agreement has not been approved by the Commission and is not in operation;



• The NUW was a bargaining representative in relation to the bioCSL Agreement and proposes to oppose the approval of the agreement by the Commission on grounds that include that the notice of employee representational rights (NOERR) issued by CSL was deficient and therefore not valid;



• In respect of the protected action ballot resulting from the order made in B2015/607:

• 65 employees comprised the roll of voters;



• Six of those employees are covered by the bioCSL Agreement and 59 are not covered;



• 39 employees returned eligible votes and this comprised 60% of the persons on the roll who voted in the ballot;



• In respect of each of the nine questions seeking approval for particular industrial action a majority of employees ranging from 36 to 38, depending on the question, voted to approve the action;



• Some of the industrial action approved by the ballot had commenced within the 30 day period and some had not;

• In respect of the protected action ballot resulting from the order made in B2015/608:

• 30 employees comprised the roll of voters;



• 18 of those employees are covered by the bioCSL Agreement and 12 are not covered;



• 20 employees returned eligible votes and this comprised 66.66% of the persons on the roll who voted in the ballot;



• In respect of each of the 10 questions seeking approval for particular industrial action a majority of employees ranging from 18 to 19, depending on the question, voted to approve the action;



• Some of the industrial action approved by the ballot had commenced within the 30 day period and some had not;

• The NUW continues to pursue proposed agreements to cover, respectively, the employees who are the subject of each of the protected action ballot orders;



• The bioCSL Agreement covers approximately 750 employees some of whom are identified above and a number of others who are eligible to be members of the NUW;



• The vote to approve the bioCSL Agreement was 341 votes in favour of approving the agreement and 277 votes against approving the agreement;



• Since the bioCSL Agreement was approved by a majority of employees covered by it, the NUW has had discussions with some of the employees who are members of the NUW in relation to whom the protected action ballot orders were made, including some employees who are now covered by the bioCSL Agreement, and those employees endorsed the taking of further industrial action. 5

CSL’s objections

[7] CSL objects to the grant of an extended period within which industrial action which is authorised by the protection action ballots must commence on several bases. CSL does not contest that the jurisdictional prerequisites to the exercise of the discretion to extend the 30 day period as found in s.459(3) have been met. 6 Rather, it maintains that there are a number of discretionary considerations which would weigh against the exercise of the Commission’s discretion to extend the period.

[8] First, CSL submits that an enterprise agreement, which covers some of the employees who voted in the protected action ballots, was made on 13 August 2015. CSL submits that pursuant to s.182(1), once a proposed agreement has been approved by a majority of employees who will be covered by it and who are asked to vote to approve the proposed agreement, the agreement is made on the day it is approved and becomes an enterprise agreement. As s.53(1) makes clear, an enterprise agreement covers an employee if the agreement is expressed to cover (however described) the employee. CSL submits that as a consequence, from the date on which the bioCSL Agreement was approved (13 August 2015) by a majority of employees, the employees who are covered by the enterprise agreement cannot thereafter engage in industrial action. It relied, for this proposition, on a decision of the Full Bench of Fair Work Australia in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Carter Holt Harvey Woodproducts Australia Pty Ltd (Carter Holt Harvey). 7

[9] Secondly, CSL submits that I could not be satisfied that it remains the will of the majority of the employees in respect of whom the protected action ballot orders were made, for the taking of particular industrial action in pursuit of the proposed agreements sought by the NUW. 8 This is because a not insignificant number of those employees are now covered by an enterprise agreement, namely the bioCSL Agreement.

[10] Thirdly, it is submitted that if the NUW were to make a fresh application for protected action ballot orders in respect of the relevant employees, such an application could not be made (in relation to some of the employees covered by the protected action ballot orders) by reason of the restriction on when application may be made which is to be found in s.438 of the Act. That section prohibits an application for a protected action ballot order to be made any earlier than 30 days before the nominal expiry date of an enterprise agreement. CSL submits that as the bioCSL Agreement made on 13 August 2015 covers some of the employees who are the subject of the protected action ballots and the extension application, and as the bioCSL Agreement has not passed its nominal expiry date, a fresh protected action ballot order application in respect of those employees could not be made. Therefore, as a matter of discretion, an extended period within which industrial action involving those employees must commence, should also not be made.

Consideration

[11] The first of CSL’s objections turns on the decision in Carter Holt Harvey.  9 In that decision the Full Bench expressed the following view:

In our view Division 2 of Part 3 – 3 of the FW Act makes clear that protected industrial action is only available in respect of a proposed enterprise agreement covering the relevant employees and is not available once an enterprise agreement covering the employees has been indisputably made. 10

[12] The decision in Carter Holt Harvey is readily distinguishable on the facts. It is clear that in Carter Holt Harvey the relevant bargaining representative, the CEPU, did not argue that the agreement which had been made (but not approved by the FWA) and which covered employees who are proposing to take industrial action had not been validly approved. It is for this reason that the Full Bench concluded that industrial action was not available to employees who were covered by an agreement ‘indisputably made’. That is not the case here. As the NUW has made clear, the bioCSL Agreement has not been indisputably made and the NUW maintains that the NOERR earlier given to employees was not a valid notice as it was defective. 11 If it is correct, then this would appear to be a substantial bar to the Commission approving the agreement.12 To that extent the decision in Carter Holt Harvey does not stand for a broader proposition that protected industrial action can never be taken by employees once an enterprise agreement which covers them is made by reason of a vote by a majority of employees covered even though the agreement is yet to be approved by the Commission. It seems to me that industrial action, authorised by a ballot and taken in pursuit of a proposed agreement, being one that is not the agreement made, is still available to employees covered by the agreement.

[13] In the present case, it is tolerably clear that the NUW continues to press for its proposed agreements in respect of the two groups of employees covered by the protected action ballot orders. The bioCSL Agreement gives effect to the CSL’s preferred scope, but scope remains in dispute. The industrial action the NUW proposes to organise and take is to further progress its object of obtaining CSL’s agreement to the NUW’s proposed agreements reflecting its proposed scope. Section 417(1) of the Act prohibits the organising of or engaging in industrial action from the day on which an enterprise agreement is approved by the Commission until its nominal expiry date has passed. The term ‘nominal expiry date’ takes its meaning from s.12 of the Act which provides that the nominal expiry date ‘of an enterprise agreement approved under section 186 means the date specified in the agreement as its nominal expiry date’; and in relation to an agreement that is approved by the Commission notwithstanding that it did not pass the better off overall test, the nominal expiry date of such an agreement is set out in s.189(4) of the Act.

[14] The prohibition in s.417(1) does not commence until an enterprise agreement has been approved by the Commission. It also seems clear that whilst the nominal expiry date of an agreement (in respect of one approved under s.186) is determined by the agreement, it does not become a nominal expiry date until the agreement is approved by the Commission. The reference to s.186 in the definition of nominal expiry date in s.12 is itself a reference to the power of the Commission to approve an agreement. Given the terms of s.417(1) how can it be said that protected industrial action cannot be taken prior to that date for the purposes of advancing claims for a proposed enterprise agreement, even though some of the employees who might participate in the industrial action are covered by the agreement which has been approved by a majority of employees? The answer would need to be found elsewhere in the Act.

[15] There is nothing in Division 2 of Part 3-3 which compels a conclusion that protected industrial action is not available to employees during the period between the making of the agreement pursuant to s.182(1) and its approval by the Commission under s.186 of the Act, as long as the industrial action is taken to support or advance claims for a proposed agreement. Protected industrial action for a proposed agreement is relevantly ‘…employee claim action for the agreement’. 13 ‘employee claim action for a proposed enterprise agreement is relevantly industrial action that is organised or engaged in for the purposes of supporting or advancing claims in relation to the agreement that are only about, or are reasonably believed to only be about, permitted matters.’14 Employee claim action must also meet the common requirements set out in Subdivision B of Division 2 and the additional requirements, which for present purposes are not in issue, set out in s.409 of the Act. There is nothing in the common requirements set out in s.413 of the Act, which would limit the capacity of employee claim action to be engaged in by employees including some who are covered by an agreement that has been made but not approved by the Commission, during the period following the making of an agreement and until its approval by the Commission. To the contrary, the relevant limitation is to be found in s.413(6), which provides that the person organising or engaging in the industrial action must not contravene s.417 of the Act. As discussed above, that is a prohibition on the organising or taking of industrial action from the day on which an agreement that covers a person is approved by the Commission.

[16] The position under the Act stands in contradistinction to that which pertained to the Workplace Relations Act 1996 (WR Act). Under the WR Act, protected industrial action could only be organised or taken during a bargaining period. 15 A bargaining period began at the end of seven days after, relevantly, the initiating party gave an initiating notice.16 A bargaining period ended, relevantly, when a collective agreement had been made by the employer and any one or more of the other negotiating parties.17 Relevantly, a collective agreement was made, in relation to an employee collective agreement at the time when the agreement was approved by a majority of persons who cast a valid vote or otherwise decided that they wanted to approve the agreement;18 or in the case of a union collective agreement, when the employer and the organisation or organisations agreed to the terms of the agreement.19 Once approved, collective agreements were to be lodged with the Workplace Authority Director within 14 days after the approval.20 Non-greenfields collective agreements commenced to operate seven days after lodgement.21 Industrial action was prohibited from the day on which a collective agreement came into operation until its nominal expiry date had passed.22 Thus the position under the WR Act was that once the bargaining period had ended by the making of a collective agreement, protected industrial action could not be taken. Furthermore, industrial action (whether protected or not) was prohibited once the agreement earlier made, commenced to operate.

[17] Therefore, it is clear that the position under the WR Act was that protected industrial action was not available between the period that an agreement had been approved by a valid majority of employees (or made with an organisation) and the date on which such an agreement commenced to operate. No similar provisions are discernible in the scheme of the agreement making and protected industrial action established by the Act. Absent any express limitation I am loathed to read into the Act a limitation which does not expressly exist, particularly in circumstances where the Parliament is presumed to have known of the scheme under the WR Act, repealed that scheme and instead enacted a different scheme that operates under the Act.

[18] As to the second basis of objection, CSL submits that it is not now possible to ascertain whether it remains the will of the majority of the employees in respect of whom the protected action ballot orders were made, for the taking of particular industrial action in pursuit of the proposed agreements sought by the NUW. This is because a not insignificant number of those employees are now covered by an enterprise agreement.

[19] This submission has no basis in relation to the order made in B2015/607. Only six of the 65 employees on the roll of voters are covered by the bioCSL Agreement. Thirty nine of the 65 employees cast eligible votes and variously between 36 and 38 of these employees voted to approve the various forms of industrial action set out in the questions. Moreover, it is not contested that at least some of those employees have expressed a desire to engage in protected industrial action in support of the NUW’s proposed agreement. There is no evidence that any employee who is the subject of the ballot order made in B2015/607 no longer wishes to engage in industrial action, much less is there evidence of a majority of those employees holding such a view.

[20] To the extent that it is necessary for me to form a view as to the prevailing will of the employees, 23 on the basis of the material available there is no reason to suppose that the view expressed by those employees in the ballot has changed.

[21] The situation is a little different in respect of the order made in B2015/608. In that matter, of the 30 employees who were eligible to vote in the ballot, 18 are now covered by the bioCSL Agreement. Twenty employees cast a valid vote in the ballot and 18 or 19 employees variously approved each of the forms of industrial action proposed in the questions. It is not known how the 18 employees, now covered by the bioCSL Agreement, voted in the ballot to approve that agreement but it seems clear that at least some of them must have voted to approve the industrial action the subject of the order made in B2015/608. Put simply, I do not know whether there has been a change in the will of the employees the subject of the order made in B2015/608 to engage in protected industrial action to support or advance claims made in the NUW’s proposed enterprise agreement. CSL could have, but did not call any of the employees to give evidence about their view of industrial action in light of the making of the bioCSL Agreement. Conversely, the NUW maintained that at least some of these employees who participated in meetings following the making of the bioCSL Agreement expressed a desire to continue with industrial action. This proposition was not challenged by CSL. Moreover, the official of the NUW who participated in the meetings made herself available at the hearing for cross examination. In these circumstances, to the extent that it is necessary for me to form a view as to the prevailing will of the employees concerned, there is no evidence that the views of employees as expressed in the outcome of the ballot has changed. Such material as is available points to a maintenance of a will to engage in protected industrial action.

[22] Therefore, I am not persuaded that this ground of objection should cause me not to exercise my discretion to extend the time during which some of the industrial action approved by the protected action ballots must commence.

[23] Turning then to the third basis of objection, CSL submit that I should not exercise my discretion to extend the period because, if the NUW were now to make a fresh application for protected action ballot orders in respect of the relevant employees, such an application could not be made by reason of the restriction on when application may be made under s.438 of the Act.

[24] That section provides:

‘438 Restriction on when application may be made

(1) [Minimum notice period] If one or more enterprise agreements cover the employees who will be covered by the proposed enterprise agreement, an application or a protected action ballot order must not be made earlier than 30 days before the nominal expiry date of the enterprise agreement, for the latest nominal expiry date of those enterprise agreements (as the case may be).

(2) [Making application is not industrial action] To avoid doubt, making an application for a protected action ballot order does not constitute organising industrial action.’

[25] CSL submit that the reference to ‘enterprise agreement’ in s.438 includes a reference to an enterprise agreement that was made as a consequence of a majority of employees casting a valid vote to approve the agreement pursuant to s.182(1) of the Act.

[26] I do not agree. The reference to the words ‘enterprise agreement’ is not to be read in abstraction, rather it takes its meaning from the context in which it appears. The prohibition on the making of an application is that one must not be made any earlier than 30 days ‘before the nominal expiry date of the enterprise agreement’. The prohibition therefore only operates in relation to an enterprise agreement that has a nominal expiry date. For the reasons explained earlier, it seems clear from other provisions in the Act (also earlier referred to), that ‘nominal expiry date’ means the date specified in an agreement as its nominal expiry date that is an enterprise agreement approved under s.186 of the Act. A date specified in an enterprise agreement as its nominal expiry date made under s.182(1) but not approved by the Commission under s.186, is not a nominal expiry date as referred to in s.438, because, in my view, the reference to nominal expiry date in that section carries the meaning given to that phrase by s.12 of the Act. The structure of the section and the context in which that phrase appears, in my view, compels this result. A contrary construction would yield the result that once an agreement is made under s.182(1), an application for a protected action ballot order could not be made in relation to employees covered by that agreement until at least 30 days before the nominal expiry date of that agreement, even though the agreement may never have been approved by the Commission, for example because it did not pass the better off overall test or because no application for its approval had been made. 24

[27] For these reasons, I am not persuaded that this ground of objection should cause me not to exercise my discretion to extend the time during which some of the industrial action approved by the protected action ballots must commence.

Conclusion

[28] Section 459(3) permits the Commission to extend the 30 day period referred to in s.459(1)(d)(i) of the Act by up to 30 days if the applicant for the protected action ballot order applies to the Commission for the period to be extended and the period has not previously been extended. Neither of these two jurisdictional preconditions were contested and I am satisfied that each has been met. I am not satisfied that any of the discretionary considerations raised by CSL and discussed above have been made out. Nor am I persuaded that there has been a change in the bargaining dynamic by the making of the bioCSL Agreement. True it is that some of the employees who are subject to the protected action ballot orders are now covered by the bioCSL Agreement, but no evidence was lead as to whether they supported the agreement. Weighed against this is the fact that the NUW continues to pursue its proposed agreements and the uncontested submission of the NUW that at a meeting of members which followed the vote to approve the bioCSL Agreement including some of the employees now covered by the bioCSL Agreement, those members endorsed continued industrial action in support of the NUW’s proposed agreements. 25 There are no other discretionary considerations which have been identified, or of which I am aware, that would cause me not to exercise my discretion. In the circumstances, the cost and administrative burden associated with the conduct of further ballots is not justified. In respect of each application I extend the 30 day period until 14 September 2015.

[29] As earlier indicated, orders giving effect to my decision have already been made in PR571013 and PR5717045.

DEPUTY PRESIDENT

Appearances:

Ms E Barrett for the National Union of Workers

Mr Doyle, Herbert Smith Freehills for CSL Limited t/a CSL

Hearing details:

2015.

Melbourne.

August 18.

 1   See PR568553 and PR568554

 2   See AEC declaration of result in matter number B2015/608 dated 17 July 2015 and in matter number B2015/607 dated 17 July 2015

 3   PR571013 and PR571045

 4   See transcript at PN 16 – PN 192; AEC declaration of result in matter number B2015/608 dated 17 July 2015 and in matter number B2015/607 dated 17 July 2015

 5   Transcript at PN185

 6   Transcript at PN70

 7   [2011] FWAFB 2163; (2011) 210 IR 1

 8   See Energy Australia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FCAFC 8 at [16]-[17]; (2014) 241 IR 100 at 104-105

 9   Ibid

 10   Ibid at 2

 11   Transcript PN 51

 12   See Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union[2014] FWCFB 2042, particularly at [45] and Australian Maritime Officers’ Union v Harbour City Ferries Pty Ltd [2015] FWCFB 3337

 13   s.408

 14   s.409

 15   See s.435 of the WR Act

 16   See s.427 of the WR Act

 17   See s.428 of the WR Act

 18   See s.333 and s.340 of the WR Act

 19   Ibid

 20   See s.342 of the WR Act

 21   See s.347(1) of the WR Act

 22   See s.494 of the WR Act

 23   See Energy Australia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FCAFC 8; (2014) 214 IR 100, particularly at [15] – [17]

 24   I note that there is an obligation on a bargaining representative for the agreement to make an application for the approval of the agreement within 14 days of the agreement being made (s.185), however there is no apparent consequence for a failure to do so

 25   Transcript PN185

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<Price code A, PR571307>