NUW v ACCO Australia Pty Ltd

[2009] FWA 226

[2009] FWA 226

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

National Union of Workers-New South Wales Branch
v
ACCO Australia Pty Ltd
(B2009/10508)

COMMISSIONER THATCHER SYDNEY, 7 SEPTEMBER 2009

Protected action ballot order – hard bargaining with impasse still genuinely trying – multi-option single question – no direction to AEC on voting method – no information note for ballot paper

[1] The National Union of Workers (NUW) has applied to Fair Work Australia (FWA) for an order under s.443 of the Fair Work Act 2009 (the Act) requiring a protected action ballot to be conducted to determine whether employees of ACCO Australia Pty Limited (ACCO) covered by the ACCO Australia Pty Limited Enterprise Agreement 2006 (the existing agreement) (which has a nominal expiry date of 30 June 2009) wish to engage in particular protected industrial action for a proposed enterprise agreement.

[2] Section 443 (When FWA must make a protected action ballot order) relevantly includes:

“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] Section 437 (Application for a protected action ballot order), which is referred to in paragraph 443(1)(a), includes the following:

“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) …

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] Thus, FWA is required to make a protected action ballot order if the application has complied with paragraph 443(1)(a) (has been made under s.437) and it is satisfied that that the conditions in paragraph 443(1)(b) have been met and FWA must not make such an order unless those prerequisites apply.

[5] Subsection 441(2), which provides that FWA must not determine an application for a protected action ballot order unless the applicant has given a copy to the employer and the protected action ballot agent in accordance with s.440 (Notice of application), is not an issue in these proceedings.

[6] When the hearing commenced Mr Mueller (for the NUW) appeared reluctant to present evidence in support of the application until after ACCO had outlined its points of opposition, stating that he did not want to ‘argue against himself’.¹

[7] In its consideration of applications under s.437, the approach adopted by FWA is to require the applicant union to demonstrate to the tribunal that the statutory prerequisites apply and that the order sought is appropriate.² Proceedings do not focus only on the objections from the employer of the relevant employees and a protected action ballot order is not automatically granted if there are no such objections.

[8] This decision deals only with the matters that were in contention between the parties at the hearing, as I am satisfied in respect of other relevant matters.

[9] In opposing the application ACCO submits that:

(a) FWA can not be satisfied that the NUW has been and is genuinely trying to reach an agreement with ACCO (paragraph 443(1)(b));

(b) In the alternative, if a protected action ballot order is to be made, it seeks that:

(i) the question the NUW wants put to the employees who are to be balloted be amended;

(ii) FWA direct the Australian Electoral Commission (AEC) in two respects, namely:

1. To ensure that members of the union can not be identified, the ballot of employees be a postal ballot rather than an attendance ballot.

A note be included on the ballot paper advising employees that their participation in employee claim action (s.409) could result in employer response action (s.411).

GENUINELY TRYING TO REACH AN AGREEMENT

[10] The issue of whether a party is genuinely trying to reach an agreement was considered by Munro J (in another context) in Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union & Ors³ (AIG v AFMEPKIU) in which His Honour stated that a party's negotiating conduct must evidence a genuine try to reach an agreement and if the party, in truth, is not trying to reach agreement then the negotiating conduct fails the test. He continued:

“[45] Such questions of fact and degree obviously need to be answered by reference to evidence and details of particular facts. The more the negotiation conduct can be categorised as evidencing a refusal to allow agreement other than on an all or none basis, the greater the likelihood that it should be found to fail the genuinely try to reach agreement with the other negotiator test. However, there are variations and permutation of demands, conduct, and character of negotiating parties that must be assessed.”

[11] The decision in AIG v AFMEPKIU was adopted by the Full Bench in Re: Media, Entertainment and Arts Alliance⁴ which stated:

“[46] We adopt those observations as a useful guide for the application of the genuine try test. In particular, we endorse the emphasis given to the application of the test through an even handed assessment of the industrial context, of demands, conduct, and character of the negotiators and negotiations, in which it becomes an issue. We note that a similar emphasis upon assessment of circumstances, context, and reasonableness, may be discerned in decisions dealing with the analogous concepts of ‘bargaining in good faith’ in United States industrial jurisprudence, and in the construction and application of ‘best endeavours’ clauses in Australian and U.K. commercial contract law.” [End notes omitted]

[12] Thus, questions of whether the NUW has been and is genuinely trying to reach an agreement with ACCO involves questions of fact to be determined by reference to all of the circumstances of the particular case. Fact finding, therefore, is an essential element in the decision required by paragraph 443(1)(b).⁵

[13] The satisfaction referred to in paragraph 443(1)(b) requires the exercise by FWA of a discretion.⁶

[14] Evidence was given by:

• Mr Steve Cain, Organiser, NUW



• Mr Mark Bell, Operations Director, ACCO

Has the NUW genuinely trying to reach an agreement?

[15] It is not necessary to canvass in detail the negotiations that have occurred since 5 June 2009 when the NUW provided ACCO with its initial log of claims.⁷ It is sufficient to record that:

• Bargaining representatives of the parties conducted negotiations on 7, 15 and 30 July 2009.



• On 4 August 2009 the NUW wrote to ACCO listing 6 further claims for the enterprise agreement. Such additional claims were to replace a Memorandum of Understanding between ACCO and the NUW⁸ (the MOU) on matters that the Workplace Relations Act 1996 did not allow in the existing agreement.⁹



• On 18 August 2009 ACCO wrote to the NUW with its final offer¹⁰ which included increased wages and backdating thereof, but maintained its claim to remove rostered days off (a provision of the existing agreement whereby employees who work a 40 hour week are entitled to accrue 2 hours thereof towards a rostered day off ) (RDO).



• On 20 August 2009, at a paid union meeting, members considered ACCO’s final offer.

[16] Following the union meeting, Mr Cain and Mr Bell (along with other representatives) met and during what was a brief meeting:

• Mr Cain advised Mr Bell that ACCO’s final offer had been rejected by the NUW members;



• Mr Cain advised Mr Bell that if ACCO withdrew its claim to remove RDOs there was a strong indication from the union’s members that they would accept the modified offer;¹¹



• Mr Bell advised Mr Cain that ACCO could not agree as it needed to discontinue the practice of RDOs and have all employees work a regular 38 hour week.

[17] As the meeting was breaking up, Mr Cain asked to meet with Mr Bell ‘for two minutes.’ During their very brief meeting that followed:

• Mr Cain repeated that if ACCO withdrew its claim to remove RDOs there was a strong indication from the union’s members that they would accept the modified offer;



• Mr Bell advised Mr Cain that ACCO could not keep the existing RDO arrangements;



• Mr Cain advised Mr Bell that he had been instructed by the membership to apply for a ballot.

[18] At the time the NUW filed its application, the without prejudice positions of the parties were aligned on almost all of the items in the proposed enterprise agreement (including rolling over the existing terms of the MOU into the agreement).¹² However the parties had reached an impasse on whether or not the existing RDO entitlement is to continue in the proposed agreement,¹³ with each party having maintained opposite positions throughout the negotiations.

[19] There has been substantial progress during the negotiation process with each party having made concessions. The process was not without some difficulties, including the different approaches being adopted by the parties: Mr Bell wanting Mr Cain to put the union’s positions in writing and Mr Cain preferring ‘to sit down at the bargaining table and talking face to face.’¹⁴ Nevertheless the situation has been reached where they are apart on only the RDO issue, on which neither party will compromise.¹⁵

[20] On the evidence, I am satisfied that the NUW has been genuinely trying to reach an agreement with ACCO in relation to a proposed enterprise agreement, which is one of the requirements of paragraph 443(1)(b).

Is the NUW been genuinely trying to reach an agreement?

[21] The other requirement of paragraph 443(1)(b) is that FWA is satisfied that the applicant is genuinely trying to reach an agreement. This is expressed by reference to the present, or the time of making or determining the application.¹⁶

[22] ACCO submits that what occurred during the two minute meeting and subsequently demonstrates that the NUW is not genuinely trying to reach an agreement. More specifically:

(a) After having 3 meetings over several weeks, it is not sufficient for the NUW to simply reject ACCO’s RDO claim “and say now we're going off to seek industrial action without further consideration.”¹⁷

(b) The NUW made “no suggestion that (the parties) should meet further and have discussions.”¹⁸

(c) It was the speed with which the NUW has moved to an industrial action ballot without attempts to have fuller negotiations after a two minute meeting.¹⁹

(d) The NUW initiated a meeting “effectively on the run rather than trying to have further discussions”.

[23] I do not agree that the above demonstrates that the NUW is not genuinely trying to reach an agreement for the purposes of paragraph 443(1)(b). Whilst negotiations may have reached an impasse on the RDO issue, by not bending to ACCO’s position and maintaining its opposition to the removal of RDO’s, the NUW is merely engaging in hard bargaining. Hard bargaining is not the same as not genuinely trying to reach an agreement.

[24] In LHMU-WA Branch v CSBP Ltd, the Commission held that genuinely trying to reach agreement did not automatically imply continual movement in the same direction.²⁰

[25] In Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd²¹Marshall J considered whether a party had ‘genuinely tried to reach agreement’. In that decision His Honour cited with approval (with the alteration of the word ‘would’ to read ‘could’) Hancock SDP in Re Australian, Rail, Tram and Bus Industry Union²² where His Honour said:

“… bargaining in good faith does not require a willingness to make concessions. It is consistent with adopting 'a hard line'. Equally, it does not imply moderation of demands. It does imply a preparedness to consider seriously offers and proposals made by the other side and to take account of arguments; but if, having done these things, a bargaining party is unmoved, it may still be bargaining in good faith. The inability of parties to reach an agreement is not evidence that either is acting in bad faith. The adoption of a hard line or the making of extravagant demands may evince an underlying intention of obstructing agreement. This tactic would constitute bad faith, but in few cases, if any, could its existence be inferred from the bargaining stance alone.”23 (emphasis added)

[26] There is nothing in the scheme of the Act to suggest that the lodgement of an application for a protected action ballot order should be taken as evidence that the bargaining representative is no longer genuinely trying to reach an agreement with the employer. The following object of Division 8 (Protected action ballots) does not appear to support such a proposition:

“436 Object of this Division

The object of this Division is to establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement.”

[27] Further, the Explanatory Memorandum to the Fair Work Bill 2008, when dealing with what was to become s.436 of the Act, states:

“Clause 436 – Object of this Division

1755. Clause 436 states that the object of the Division is to provide bargaining representatives with access to a fair, simple and democratic secret ballot process in order to determine whether employees wish to take certain types of protected industrial action. The Division contains facilitative provisions designed to provide a means for assessing the level of support for protected industrial action. The process the Division establishes is not intended to delay or frustrate the taking of protected industrial action by employees.”

[28] Although the meeting between the parties on 20 August 2009 was of short duration, and the ‘two minute’ meeting between Messrs Cain and Bell was even shorter, this was in the context of hard bargaining by ACCO which had given the NUW its ‘final offer’. Nevertheless I am satisfied that Mr Cain did float a likely settlement with Mr Bell, even if it involved ACCO agreeing to a continuation of the RDO arrangements in the existing agreement.

[29] In relation to the question of whether the NUW is seriously considering the proposal to remove RDOs, it could be said that to some extent each party is adopting a ‘flat no’²⁴ approach to the position of the other party. However there is evidence that on 20 August 2009 Mr Cain put the issue to the union meeting and asked for members to speak for or against removing RDOs before putting the issue to a vote.²⁵

[30] On the evidence, I am satisfied that at the times of the making of and determining this application the NUW is genuinely trying to reach an agreement with ACCO on the proposed enterprise agreement, which is the other requirement of paragraph 443(1)(b).

Paragraph 443(1)(b)

[31] As I am satisfied that the NUW has been and is genuinely trying to reach an agreement with ACCO, the pre-requisites in paragraph 443(1)(b) have been met.

QUESTION TO BE PUT TO EMPLOYEES

[32] If each of the requirements of s.443(1) are established (and I will turn to paragraph 443(1)(a) in paragraph 48 below) I am obliged to make ‘a protected action ballot order’ that specifies the items in s.443(3), which states:

“(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.”

[33] Paragraph 443(3)(d) requires the question(s) to be put to employees who are to be balloted to include ‘the nature of the proposed industrial action’.

[34] The NUW’s application specifies the following question to be put to the employees to be balloted:

“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 by storage service employees who are members of the National Union of Workers, New South Wales Branch engaged at the Arndell Park Site.”

[35] ACCO opposes the NUW question and seeks that each of the 12 categories of industrial action become separate questions. It relies on the reasoning of O’Callaghan SDP in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Radio Rentals Limited²⁶ in respect of s.451 proceedings under the Workplace Relations Act 1996 which considered an application involving a single question to be put to the employees to be balloted that included both 4 hour strikes (which included bans) and strikes of a continuing and indefinite duration. That decision includes:

“[13] I do not consider that the single question proposed by the AMWU properly defines the nature of the proposed industrial action such that the employees can make an informed decision about it. The single question does not allow employees to easily identify potential losses as a result of the industrial action. As a result I confirm that I intend that a number of more specific questions be put to employees. These questions will also establish, insofar as this is practical, the duration of the proposed action.

…

[15] I have decided that there should be two distinct questions put to employees about strikes to reflect the employee choice to vote in favour of one or more strikes of a fixed duration and/or to vote in favour of one or more strikes of a variable duration which could extend over the entire current bargaining period.”

[36] ACCO considers that such a very long question with a very large number of options would make it difficult for employees to understand the ramifications and the nature of their potential industrial action. It considers that, at the least, the Radio Rentals decision suggests that definite period industrial action should be split from indefinite industrial action. ²⁷

[37] The NUW relies on the decision of Hamberger SDP in National Union of Workers v Vopak Terminals Australia Pty Ltd,²⁸ (Vopak Terminals) also in respect of s.451 proceedings under the Workplace Relations Act 1996, which considered a single question that contained 9 categories of industrial action, including those of fixed and indefinite durations. That decision includes:

“[8] Clearly, it is important that employees know when they vote what it is they would be authorising. That is not the same as knowing all the consequences of their decision. There is almost always a degree of uncertainty in embarking on industrial action. One cannot normally be sure, for example, whether the other party will concede quickly, slowly or not at all. Industrial action can be over after a very short period of time or might take many days or weeks. This is something employees have to weigh up carefully for themselves when they vote on industrial action.

[9] There is nothing ambiguous about the proposed question. If the employees vote in the affirmative it is clear they will be authorising a range of industrial action up to and including indefinite strikes. If they do not wish to do so, they are at liberty to vote in the negative.”

[38] Mr Mueller argues that in circumstances where FWA is obliged to make a protected action ballot order, if the question in the union’s application complies with s.443(3), FWA is obliged to grant the application and not exercise a discretion.²⁹

[39] I disagree. In my view such an order is not an automatic consequence of such an application. Rather the proper application of the Act is that in such circumstances FWA has discretion to alter the question or questions which are contained in the application. Mr Mueller’s approach ignores the provisions s.599 (FWA not required to decide an application in terms applied for) which states:

“Except as provided by this Act, FWA is not required to make a decision in relation to an application in the terms applied for.”

[40] There is nothing in the Act that requires FWA to make a protected action ballot order in the terms applied for.

[41] In order to conform with paragraph 443(3)(d), how then should I exercise my discretion in respect of the question or questions to be put to employees who are to be balloted?

[42] It can not be disputed that the omnibus-type question proposed by the NUW means that the nature of the industrial action on which employees will vote on is an ‘all 12 options or nothing basis’, with the options ranging from one 1 hour strike to an unlimited number of indefinite strikes, as well as indefinite or periodic bans on certain overtime.

[43] In response to my query of why the union seeks the multi-option type question, Mr Mueller appeared to go no further than rely on the reasoning of Hamberger SDP in Vopak Terminals.³⁰ He indicated that the NUW would rather its application be rejected than be split into separate questions.³¹ In his submissions in reply, Mr Muller appeared to make an alternative submission that there is no particular reason for FWA to break up the single question.³²

[44] I note that s.457 provides that the protected action ballot must declare the results of the ballot and inform the employer of the employees who voted of the results. It may be that if only certain forms of industrial action are authorised by the ballot and others are not, from a tactic perspective, this may by interpreted by the an employer as a lack of commitment by employees to the claims for which the industrial action is to support or advance. But that is only speculation.

[45] There are other decisions of the Commission in relation to s.451 applications under the Workplace Relations Act 1996 where multiple-option questions have been adopted.

(a) National Union of Workers and Saint-Gobain Abrasives Pty Ltd; Saint-Gobain Warehousing Pty Ltd33(another decision relied on by the NUW) in which the single question involved rolling stoppages, bans on overtime and call backs and strikes of an indefinite nature. In her decision Marsh SDP stated that she was satisfied that the employees will be in a position to understand what work will be undertaken and what work would remain to be done.34

(b) Civil Air Operators Officers’ Association of Australia, The v Airservices Australia,35 in which the single question was said to involve a range of stoppages and 18 or 19 categories of bans. In her decision Deegan C stated:

“[37] I also determined that the question to be put to voters should be as proposed by Civil Air. In my view the types of industrial action proposed were sufficiently clear for a voter to make a reasoned decision whether or not to support them. The durations of the various proposed stoppages were given and the types of proposed bans and limitations itemised. I accepted the evidence of Mr McGuane that Civil Air members were involved in compiling the list of proposed industrial action and were familiar with the types of action planned.

[38] In the circumstances I saw no reason to depart from the form of the question proposed by Civil Air. The organisation is entitled to request from its members authority to pursue a full range of industrial action. While I accept that some members may wish to pursue some types of action and not others, they will clearly have a choice between supporting the full range proposed or none at all.

[39] I accepted the Civil Air submission that the form of question proposed was not unusual and there was no reason why it should be further explained or divided into separate parts.”

(c) Automative, Food, Metals, Engineering and Kindred Industries Union v Amcor Packaging Australia) Pty Ltd t/as Amcor Cartons Australasia,³⁶ in which the single question involved a range of stoppages and bans, including those of fixed and indefinite durations. In his decision Harrison C stated:

“[19] The fact that other members of the Commission approved an identical or similar question in the absence of objection is not particularly relevant in this matter. … In my view the proposed question contained in this application is one which is expressed in plain English and can be readily and clearly understood by employees and that the nature of the industrial action is specified.”

[46] Section 578 (Matters FWA must take into account in performing functions etc.) provides that in performing functions or exercising powers, in relation to a matter under a Part of the Act, the matters that FWA must take into account include the objects of the Act, and any objects of the Part.

[47] As already referred to, the object of Division 8 is to establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement. Given that the process is for the benefit of the bargaining representative, I would be slow to alter the question that has been sought by a bargaining representative, provided it complies with s.443(3) and can be readily and clearly understood by employees.

[48] In my opinion the question in the NUW’s application “includes the nature of the proposed industrial action” such that there is no issue that the application complies with s.437 and therefore complies with paragraph 443(1)(a). Further the question complies with paragraph 443(3)(d).

[49] The protected action ballot order that I make will include the question sought by the NUW with the minor alteration of deleting the words ‘In support of reaching a union collective agreement’ and inserting in lieu thereof ‘In supporting or advancing claims in relation to an enterprise agreement’.

DIRECTIONS TO AEC

[50] ACCO submits that although the NUW’s application refers to approximately 102 members of the union, its records indicate that only 88 employees are union members. One explanation could be that some employees do not want their employer to know they are a member of the union, although there may be other reasons.³⁷

[51] It submits that the ballot should not be an attendance ballot as it would be difficult for the 14 employees to place a ballot and not be identified as union members. It seeks that I direct the AEC to conduct a postal ballot.

[52] The NUW submits that because of s.451, a direction by FWA on the voting method would be ultra vires.³⁸

[53] The issue of whether FWA has power to direct the AEC on the voting method requires me to construe paragraph 449(2)(d) in relation to s.451(2), which each appear in Subdivision C (Conduct of protected action ballot) of Division 8, within the context of that subdivision taken as a whole.

[54] Section 449 (Protected action ballot to be conducted by Australian Electoral Commission or other specified ballot agent), which is at the commencement of Subdivision C, includes:

“(2) The protected action ballot agent must conduct the protected action ballot in accordance with the following:

(a) the protected action ballot order;

(b) the timetable for the ballot;

(c) this Subdivision;

(d) any directions given by FWA;

(e) any procedures prescribed by the regulations.” (emphasis added)

[55] Section 450 (Directions for conduct of protected action ballot) applies if the agent is not the AEC. Subsection (2) requires FWA to give the agent written directions in relation to certain prescribed matters, including;

“(a) the development of a timetable;

(b) the voting method, or methods, to be used;

(c) …” (emphasis added)

[56] Therefore, although s.450 is not directly relevant to these proceedings it does assist with the proper construction of paragraph 449(2)(d). For the following reasons the proper application of Subdivision C is that if the agent is not the AEC, (and s.451 - which I will come to - does not apply) the jurisdiction for FWA to direct the agent on the voting method is not paragraph 449(2)(d): rather it is paragraph 450(2)(b):

(a) Paragraph 450(2)(d) mandates FWA to give such directions in writing, whereas the ‘any’ in paragraph 449(2)(d) indicates that the power to give the direction is discretionary;

(b) Paragraph 450(2)(d) is expressed in specific terms; paragraph 449(2)(d) is general in nature;

(c) Paragraph 450(2)(d) has to be read in conjunction with paragraph 450(2)(c), which includes s.451.

[57] The next section in Subdivision C is s.451 (Timetable for protected action ballot) which states:

“(1) This section applies if:

(a) the protected action ballot agent is the Australian Electoral Commission; or

(b) FWA has directed the protected action ballot agent to comply with this section.

Note: If this section does not apply, the protected action ballot agent must comply with directions given by FWA in relation to the matters dealt with by this section (see section 450).

(2) As soon as practicable after receiving a copy of the protected action ballot order, the protected action ballot agent must, in consultation with each applicant for the order and the employer of the employees who are to be balloted:

(a) develop a timetable for the conduct of the protected action ballot; and

(b) determine the voting method, or methods, to be used for the ballot.” (emphasis added)

[58] Therefore, under s.451, FWA has no discretion to direct the AEC in relation to the method of voting. Rather the AEC is required, in consultation with the applicant and the employer, to determine the voting method to be used for the ballot.

[59] This analysis supports a construction of Subdivision C that the Parliament intended that it is for the AEC to determine the voting method to be used for the ballot and that whatever directions FWA may issue to the AEC under paragraph 449(2)(d) they cannot override s.451(2).

[60] That construction is supported by reference to the clause of the Explanatory Memorandum to the Fair Work Bill 2008 in relation to that was to become s.451, which makes no reference to the FWA and states:

“1800. Clause 451 requires the AEC … to comply with this clause – to develop a time table and determine the voting method, or methods, to be used for the protected action ballot.”

[61] In any event there is no requirement in the Act that FWA determine the voting method to be used by the AEC and there is no reason why the method cannot be determined by the AEC pursuant to paragraph 451(2)(b) after consulting with the NUW and ACCO and giving due consideration to their competing views. Therefore even if FWA has such discretionary powers under paragraph 449(1)(d), I would refrain from making such a direction on the basis that it is unnecessary.

[62] It can be anticipated that the proposed consultations between the AEC and ACCO will satisfy ACCO that its concerns about employees inadvertently disclosing their union membership or absence thereof are unfounded. It is my understanding that in conducting an attendance ballot for a protected action ballot the AEC, in consultation with the employer, arranges for a voting area to be set aside such that only one employee is admitted at a time to the voting area (which is exclusively being used for the purpose of voting). In this way an employee can enter the voting area and can discuss confidentially whether he or she is on the roll of voters, and therefore eligible to vote in the ballot. In the event that an employee is not eligible to vote, he or she is able to leave the voting area with no other party being aware (unless such information is volunteered by the employee) as to whether the employee voted in the ballot.

[63] For similar reasons, it is unnecessary for me to make a direction on the times for voting as contained in the NUW’s amended application.

Question – Inclusion of Note

[64] ACCO submits that because of the new arrangements introduced by the Act as from 1 July 2009, in order that employees are aware of the ramifications they potentially face³⁹ the following note be added to the question to be put to the employees to be balloted:

“Note: Under the Fair Work Act if you participate in industrial action you risk being locked out by your employer without pay. If you do not take such action your employer may not lawfully lock you out without pay.”

[65] Under s.408, protected industrial action includes:

(a) Employee claim action for the proposed enterprise agreement as referred to in s.409 (Employee claim action). The NUW’s application is for this form of industrial action; and

(b) Employer response actionfor the agreement as referred to in s.411 (Employer response action). Section 411 states:

“Employer response action fora proposed enterprise agreement means industrial action that:

(a) is organised or engaged in as a response to industrial action by:

(i) a bargaining representative of an employee who will be covered by the agreement; or

(ii) an employee who will be covered by the agreement; and

(b) is organised or engaged in by an employer that will be covered by the agreement against one or more employees that will be covered by the agreement; and

(c) meets the common requirements set out in Subdivision B.”

[66] Section 19 (Meaning of industrial action) relevantly includes:

“(1) Industrial action means action of any of the following kinds:

(a) …

(d) the lockout of employees from their employment by the employer of the employees. …

(2) However, industrial action does not include the following:

(a) …

(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;

(c) …

(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts. …”

[67] Therefore if the actions of an employer to lock out their employees is for a proposed enterprise agreement and is in response to industrial action organised by a bargaining representative of employees who will be covered by that agreement, subject to compliance with the common requirements for industrial action to be protected industrial action, the lock out is employer response action and therefore protected industrial action.

[68] Although the issue was not argued, in my opinion paragraph 449(2)(d) does not enable FWA to direct the AEC to insert a note on the ballot paper. That would contradict s.455 (Protected action ballot papers) which provides that the ballot paper must be in the form prescribed by the Fair Work Regulations 2009. Regulation 3.16 (Protected action ballot papers — form) provides that:

“For paragraph 455 (a) of the Act, the form of a ballot paper for a protected action ballot is set out in Form 1 of Schedule 3.2.”

[69] Form 1 of Schedule 3.2 includes “Information for voters”, under which 4 points are prescribed, and the words: “YOUR VOTE IS SECRET, AND YOU ARE FREE TO CHOOSE WHETHER OR NOT TO SUPPORT THE PROPOSED INDUSTRIAL ACTION.” The Form does not include provision for any information along the lines of the Note sought by ACCO.

[70] If I am somehow wrong and FWA has the necessary power, I would not insert the Note because it is inappropriate.

[71] The decision of the Full Bench in Re: Country Fire Authority⁴⁰ and the authorities that I have referred to in paragraphs 35, 37 and 45 go to whether the nature of the proposed industrial action in the question or questions to be put to employees to be balloted is/are expressed clear enough to enable them to make an informed choice. This involves their understanding what work would not be undertaken and what work would remain to be done.

[72] The Note sought by ACCO goes further than including in the question or questions to be put to the employees, the nature of the proposed protected industrial action. Rather it seeks to advise employees contemplating how they should vote of one of the potential ramifications of voting in favour of engaging in employee claim action.

[73] Further, the Note would, at the least, be contrary to the spirit of Division 8, given that s.462 (Interferences etc. with protected action ballot) within Subdivision E (Compliance) provides that a person must not, in relation to a protected action ballot, use any form of intimidation to influence the vote of a person entitled to vote.

ORDER

[74] Paragraph 443(1)(a) has been complied with as the application for a protected action ballot order has been made under s.437.

[75] I am satisfied that that the requirements in paragraph 443(1)(b) have been met, namely that the NUW has been, and is, genuinely trying to reach an agreement with ACCO which is the employer of the employees who are to be balloted.

[76] The NUW notified ACCO and the AEC of the application. Section 440 has been complied with.

[77] I am obliged to grant the application for a protected action ballot order. The order will include the question sought by the NUW with the slight modification.

[78] I order accordingly [PR989089].

COMMISSIONER

Appearances:

Mr S Mueller with Mr S Cain for the NUW

Mr T Capelin with Mr M Bell for ACCO Australia Pty Ltd

Hearing details:

2009

Sydney

August 27

¹ PN29.

² In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Tyco Australia Pty Ltd T/A Wormald, [2009] FWA 83, O’Callaghan SDP stated:

“[16] The granting of a protected action ballot order is not an automatic consequence of an application to this effect. Section 443(1)(b) requires that Fair Work Australia must be satisfied that the applicant is trying to reach agreement with the employer. …”

³ Print T1982, 16 October 2000.

⁴ PR928033, 11 March 2003, per Munro J, Leary DP and O’Connor C.

⁵ Similar to the situation with s.461 of the Workplace Relations Act 1996 - Re: Tyco Australia Pty Ltd trading as Wormald, PR974317, 12 October 2006, per Giudice J, Lawler VP, Williams C,at para 12.

⁶ Similar to the comparable provision in s.461 of the Workplace Relations Act 1996 - Bilfinger Berger Services (Australia) Pty Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied services Union of Australia, [2008] AIRCFB 763, 7 October 2008, per Giudice P, Lacy SDP and Gay C, at para 26.

⁷ Exhibit M2.

⁸ Exhibit M4.

⁹ Exhibit M3.

¹⁰ Exhibit C1.

¹¹ PN175.

¹² PN348 and PN355. ACCO did not agree to the log of additional claims but has agreed to roll over the terms of the MOU into the collective agreement. (PN362 & PN400) The NUW is not pressing its claims for the last 5 points in Exhibit C1 on the basis that the terms of the MOU are to roll over into the collective agreement.(PN406)

¹³ PN414, PN415, PN437 & PN467.

¹⁴ PN201-PN202.

¹⁵ Mr Cain’s proposal that ACCO withdrawn its claim or that it become the subject of a leave reserve clause can not be described as a compromise. (PN209)

¹⁶ Re: Country Fire Authority, PR973841, 8 September 2006, per Watson VP, Lacy SDP and Hingley C, at para 33.

¹⁷ PN757.

¹⁸ PN749.

¹⁹ PN775

²⁰ [2007] AIRC 112, 14 February 2007, per Lawler VP, at para 38.

²¹ [1999] FCA 310, 91 IR 356.

²² Print L5622, 30 September 1994.

²³ At 361-362.

²⁴ The expression Mr Bell used to describe Mr Cain’s position on the RDO issue. (PN497)

²⁵ PN252.

²⁶ PR973782, 24 August 2006.

²⁷ PN792.

²⁸ [2007] AIRC 315, 20 April 2007.

²⁹ PN670, PN671 & PN734.

³⁰ PN641, PN668, PN736.

³¹ PN624.

³² PN835.

³³ PR974231, 4 October 2006.

³⁴ At para 31.

³⁵ [2009] AIRC 80, 2 February 2009.

³⁶ PR974835, 6 December 2006.

³⁷ PN801.

³⁸ PN831.

³⁹ PN787.

⁴⁰ Op cit.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR989088>