Royal Melbourne Institute of Technology T/A Rmit University v National Tertiary Education Industry Union, Ms Patricia McLaughlin
[2023] FWC 3406
•19 DECEMBER 2023
| [2023] FWC 3406 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.
Royal Melbourne Institute Of Technology T/A Rmit University
v
National Tertiary Education Industry Union, Ms Patricia McLaughlin
(C2023/7830)
| COMMISSIONER CONNOLLY | MELBOURNE, 19 DECEMBER 2023 |
Application for an order that industrial action by employees or employers stop etc.
At 4.45pm on 14 December 2023, RMIT (the Applicant) made an application to the Fair Work Commission (the Commission) under section 418 of the Fair Work Act 2009 (Cth) (the Act) for an order to stop industrial action. The application was accompanied by a proposed draft s.418 order, a draft order for substituted service and a series of attachments (A to K) submitted as evidence in support of the making of the order being sought.
Section 420(1) of the Act requires that as far as practicable, the Commission determine an application under s.418 within 2 days after it is made. The matter as allocated to my Chambers at approximately 6:00pm on 14 December 2023. Shortly thereafter, Chambers issued and served Directions on the parties for a Hearing to convene the following day at 11.30am. Directions also sought any further written submissions, or written submission in reply to be sent to Chambers by no later than 11:00am on the 15 December 2023.
Attendees for the Applicant were: Mr Avallone (of Counsel) and Ms Cheligoy (of Counsel) seeking leave to appear, along with Mr Will Spargo and Ms Shelton (Instructing) and Mr Stephen Morrison, RMIT Director of Policy and Workplace Relations. Attendees for the Respondent were: Mr Aplin (NTEU Industrial Officer), Mr Smith (NTEU Senior Legal Officer) and Dr McLaughlin (NTEU RMIT Branch President). Mr Avallone and Ms Cheligoy sought leave pursuant to s.596 of the Act and, with there being no objections, leave was granted.
Mr Avallone made submissions on behalf of Applicant and Mr Aplin for the Respondent.
Taking into account those submissions and the views of the parties, I considered the requirements on the Commission set by s.420 and sought the parties views on the making of an interim order sought by the Applicant. In the circumstances, and with there being no objections, I determined the order should be made and that it would not be contrary to the public interest to do so. At approximately 5:00pm on Friday 15 December 2023, an Interim Order was made in accordance with s.420(2).[1]
As specified by the provisions of s.420(5) of the Act, this order is to remain in effect until the Applicant’s s.418 Application is determined by the Commission. This decision considers the s.418 Application and for the reasons set out below, determines that the application should be dismissed.
Background
It is not disputed that the relevant historical background to this matter is set out in the decision of Deputy President Slevin in National Tertiary Education Industry Union v Royal Melbourne Institute of Technology and RMIT Training Pty Ltd (the NTEU PABO Decision).[2] This decision concerned a challenge to the NTEU’s s.437 application on the grounds that there had not been a “notification time in relation to the proposed enterprise agreement” as required by s.437(2A).
In the decision, the Commission held that:
“The question to be determined is whether there was a notification time in relation to the NTEU’s proposed agreement. The proposed agreement is the NTEU proposal for an agreement with a scope that will cover employees currently covered by the University Agreement, VE Agreement and Training Agreement.
…
The NTEU’s proposed agreement at the time the amended application was made was an agreement to cover employees covered by the Training Agreement, the University Agreement and the VE Agreement.” [3]
As a consequence of this decision, on 24 July 2023, the Commission made a protected action ballot order (PABO) authorising a ballot of relevant employees for the taking of protected industrial action in pursuit of a proposed agreement. The order identified the relevant employees at paragraph [3] as:
“The employees covered by the proposed agreement are the employees currently covered by RMIT University Agreement 2018; RMIT Vocational Education Workplace Agreement 2019; and RMIT Training Pty Ltd and National Tertiary Education Union Enterprise Agreement 2016.”[4]
Relevantly, at paragraph 5 of the PABO, the question put to employees to be balloted was:
“In support of reaching an Enterprise Agreement with RMIT University and RMIT Training Pty Ltd, do you authorise industrial action against your employees, to be taken separately, partially, concurrently and/or consecutively, on any number of occasions, in the form of….”[5]
The outcome of the PABO ballot was declared granting authorisation for the taking of protected industrial action of employees in pursuit of an Enterprise Agreement on 7 August 2023.
Relevant employees have subsequently engaged in taking authorised action. The parties have also continued to engage in bargaining in pursuit of a proposed enterprise agreement. During bargaining, the NTEU has continued to pursue its claims for an agreement to cover employees covered by the RMIT University Agreement 2018; RMIT Vocational Education Workplace Agreement 2019; and RMIT Training Pty Ltd and National Tertiary Education Union Enterprise Agreement 2016.
The Applicant has maintained its position that the agreement(s) it is prepared to enter into are those for which it has issued a Notice of Employer Representational Rights (NERR) and notification time of an intention to bargain that was considered by the Deputy President in the making of his decision and issuing of the PABO.
On 30 November 2023, RMIT Training filed in the Fair Work Commission an application under s.185(1) for approval of the RMIT Training Pty Ltd and National Tertiary Education Union Enterprise Agreement 2023 (2023 Training Agreement).
On 4 December 2023, RMIT’s legal representatives wrote to the NTEU indicating that it was RMIT’s view that now the 2023 Training Agreement had been made, any further industrial action taken by NTEU members who are employees of RMIT University would be unprotected. The NTEU replied to this letter on the following day, indicating it was considering its position and that it would instruct members to cease taking industrial action and would not organise further industrial action until further notice.
On 12 December 2023, the NTEU filed a Form F18 – Declaration of employee Organisation in relation to an application for approval of an enterprise agreement (other than a greenfields agreement). In this form, the NTEU indicated that it did not want to advise to Commission that it supports or opposes the approval of the Agreement. And further, that it did not want to advise the Commission that it disagrees with one or more statements in the employer’s declaration filed by RMIT in relation to the making of the agreement.
On 13 December 2023, the NTEU wrote to the Respondent’s legal representatives advising that:
a. The NTEU had provided notice to RMIT for a four-hour stoppage of work by Dr McLaughlin on 20 December 2023 (McLaughlin Action)
b. “the scope of the NTEU’s proposed agreement has changed as a result of the RMIT Training and National Tertiary Union Enterprise Agreement 2023 being made.”
c. The NTEU did not contest that members of the NTEU employed by RMIT Training are no longer eligible to take protected industrial action.
d. The NTEU had provided additional notice of the four-hour work stoppage on 20 December 2023 to enable RMIT to file a section 418 application if it wished to do so.
Agreed Facts
In notifying RMIT of the proposed stoppage of work of Dr McLaughlin on 20 December 2023, the NTEU accepts and does not dispute that it has notified a stoppage of work within the meaning of s.19(1) of the Act that is threatened, impending or probable or is otherwise being organised. In doing so it accepts, and both parties agree, that part of the jurisdictional perquisite in s.418(1) is satisfied and that the Commission “must make an order that the industrial action stop, not occur or not be organised.”
The common position of the parties is, and it is well established that the requirements of s.418(1) are twofold. First, the Commission must be satisfied that the industrial action is happening, or threatened, impending, probable or being organised. Second, the Commission must also be satisfied that the action “is not, or would not be protected industrial action”.
If the Commission is satisfied to that the industrial action is happening, or threatened, impending, probable or being organised and that it is not, or would be not protected industrial action the Commission must make an Order.
The parties agree that whether the industrial action proposed by the NTEU for Dr McLaughlin to stop work on Wednesday 20 December 2023, “is not, or would not be protected industrial action” is the question to be determined by this decision.
Relevant Legislation
Section 408 of the Act provides that industrial action is ‘protected industrial action’ for a proposed enterprise agreement if it is ‘employee claim action’. Section 409 of the Act defines ‘employee claim action’ as follows:
“409(1) Employee claim action for a proposed enterprise agreement is industrial action that:
(a) is organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement that are only about, or are reasonably believed to only be about, permitted matters; and
(b) is organised or engaged in, against an employer that will be covered by the agreement, by:
(i) a bargaining representative of an employee who will be covered by the agreement; or
(ii) an employee who is included in a group or groups of employees specified in a protected action ballot order for the industrial action; and
(c) meets the common requirements set out in Subdivision B; and
(d) meets the additional requirements set out in this section.”
Protected action ballot is necessary
(2) The industrial action must be authorised by a protected action ballot…
Section 418 of the Act provides as follows:
“418 FWC must order that industrial action by employees or employers stop etc.
(1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:
(a) is happening; or
(b) is threatened, impending or probable; or
(c) is being organised;
the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.
Note: For interim orders, see section 420.
(2) The FWC may make the order:
(a) on its own initiative; or
(b) on application by either of the following:
(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;
(ii) an organisation of which a person referred to in subparagraph (i) is a member.
(3) In making the order, the FWC does not have to specify the particular industrial action.
(4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:
(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or
(b) which has not ended before the beginning of that stop period; or
(c) beyond that stop period;
the FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.”
The Applicant’s Submissions
The Applicant’s principal submission is that for the proposed action by Dr McLaughlin to be protected action within the meaning of the Act it must be “authorised” as required by s.409(2) by a protected action ballot. They submit that this is clearly not the case.
In making this submission the Applicant identifies that the relevant PABO made by Deputy President Slevin on 24 July 2023 as result of a s.437 application by the NTEU authorised “employees to engage in particular protected industrial action for the agreement”.
With emphasis on “the” as a singular agreement as provided by s.437(1), the Applicant further identifies that “the” proposed agreement which the PABO authorised industrial action was expressly set out in the PABO, as:
“The employees covered by the proposed agreement are the employees currently covered by RMIT University Enterprise Agreement 2018; RMIT Vocational Education Workplace Agreement 2019; and RMIT Training Pty Ltd and National Tertiary Education Union Enterprise Agreement 2016.”
The Applicant further identifies that the PABO sought the authorisation of employees for protected industrial action in explicit and limited terms as set out in paragraph [10].
On this evidentiary basis, it is the Applicant’s submission that the only enterprise agreement that the NTEU was seeking at the time the PABO was made was an agreement with RMIT University and RMIT Training. The question the NTEU chose of put to employees in the PABO order to be included in the PABO ballot of employees was reflective of this position. The question only asked employees whether they were in support of “reaching an enterprise agreement with RMIT and RMIT Training…”.
For the Applicant, it clearly follows that the PABO has not authorised industrial action to be taken in support of an enterprise agreement with only RMIT and its employees. Further, that the proposed McLauglin Action has not been authorised by the PABO and is not therefore protected pursuant to s.409(2). Consequently, with both requirements of s.418 being met the Commission must make an order.
The Applicant rejects the NTEU’s contentions that its position takes an overly restrictive and technical approach to the construction of s.409(2); that it ignores the reality of the “cut and thrust of bargaining” where positions necessarily change; and that it is one inconsistent with the statutory purpose of democratically determined protected action.
Supporting its position, the Applicant refers to the authority on the principles of construction relating to the Fair Work Act in CPB Contractors Pty Limited v CFMMEU [2019] FCFC 70 at [44]-[60] that “a construction that would promote the purpose or object underlying and Act shall be preferred to a construction that would not”. Referring to the Guide to Part 3-3 of the Act (in s.406) and the objects of Division 8 (at s.436), the Applicant submits it is clear that the primary reason for the PABO process is to provide employees a private and democratic means to indicate whether they wish to have the opportunity to engage in protected industrial action in pursuit of an agreement of not.[6]
Clarifying that it is well established that PABO ballot questions should be stated with sufficient clarity that employees can make an informed choice,[7] the Respondent contends that the PABO question here was unambiguous – authorisation of employees for industrial action to support or advance claims for an enterprise agreement to apply to both RMIT and RMIT Training.
The Applicant also refers to the decision of Deputy President Gostencnik in NUW v CSL Limited T/A CSL [2015] FWC 5949 where it was not contested that remaining employees covered by a PABO could continue to take protected industrial action where an agreement was made with a small cohort of employees also covered by the PABO. In the Applicant’s submissions, this case significantly differs from the present circumstances on significant grounds. Including, that it involved one employer; that the ballot question was one of “in support of reaching an agreement with CSL; and the NUW opposed the approval of the agreement that had been made.[8]
The same circumstances do not apply there. There are two employers. The ballot question explicitly refers to RMIT and RMIT Training, and the NTEU has not opposed the making of the RMIT Training Agreement. The Applicant provides further authorities for the proposition that industrial action cannot continue once an agreement has been made, including Transport Workers Union of Australia v Prosegur Australia Pty Ltd [2021] FWCFB 1562, Carter Holt Harvey Woodproducts Australia Pty Ltd [2011] FWAFB 2163, AMWU v Broadspectrum (Aust) Pty Ltd[9] and Uniline Australia Limited.[10]
In oral submissions, the Applicant made further reference to the contentions advanced by the Respondent in their submissions that the Applicant’s position is a denial of the rights, if not necessity, of bargaining parties to remain fluid; and that it seeks to limit the rights of NTEU members to seek to bargain for an agreement with a different scope undermining the bargaining process itself. The Applicant rejects these assertions. Further, they point to the evidence that should the NTEU had the intention of seeking an agreement with RMIT it could have amended its application for this purpose at the time of its original s.437 application. Also, making the point that the NTEU could still make a s.437 application with respect to RMIT but has chosen not to do so.
Put simply, it is the Applicant’s position that a PABO which authorised industrial action to support claims for a particular proposed enterprise agreement with two employees – cannot subsequently be relied upon as authorising industrial action for a very different enterprise agreement – with one employer.
The Respondent’s Submissions
The Respondent’s position is that the success or failure of the Applicant rests on the meaning of the “proposed enterprise agreement” that was the subject of the PABO. They submit that for the Applicant to succeed and for the order to be made, it must be accepted that the term “proposed enterprise agreement” is a static concept, that is incapable to change and must be strictly read as submitted by the Applicant.
In contrast, it is the Respondent’s position that this approach is contrary to the scheme of the Act, and its interpretation by the Commission that supports the view that a bargaining representative can change aspects of its proposed agreement without invalidating any PABO made in support of it.
It is the NTEU’s position that the objects of the Act as set out in s.3 provides for a balanced framework for cooperative and productive workplace relations through an emphasis on enterprise level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action. That Part 2-4, dealing with enterprise agreements, sets out that there will be a “simple, flexible, and fair framework that enables collective bargaining in good faith. Additionally, that s.436 which provides the objects for Division 8 dealing with protected action ballots states the objects to be 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.[11]
It is the NTEU’s position that the words used and references to a proposed agreement with “RMIT University and RMIT Training” in its PABO Application, Order and the PABO question asked of employees accurately reflects the position of the NTEU and its members at the time it made its s.437 application as required by s.437(1). It is their position that this is consistent with the accepted position that what is required for a proposed agreement within the meaning of s.437(1) is an agreement the bargaining representatives applying for the PABO is proposing at the time the application is made. This position was held by the Full Bench in MUA v Maersk Crewing Australia Pty Ltd [2016] FWCFB 189 at [15].[12]
In further support of this position, the Respondent makes the case that the term “proposed enterprise agreement’ is generic, denoting a variety of possibilities indicating what one party wants from bargaining. And that the FWC has accepted and established authority that the content or scope of a proposed agreement need not be settled or agreed between bargaining parties for an agreement to be a proposed agreement for the purposes of the Act.
Further, that these authorities make clear that in bargaining “the proposed enterprise agreement” is relatively an amorphous concept, consistent with the fluid and dynamic bargaining process. The Applicant submits that this position applies to the scope of an agreement as found by Vice President Catanzariti in NTEIU v UNSW [2014] FWC 5236 at [16]:[13]
“There is nothing to prevent the NTEU from pressing its initial claim for a single enterprise agreement with renewed vigour at any stage of the bargaining process. Parties are at liberty to pursue their industrial interests in the manner they feel appropriate, subject to various legislative injunctions….”
On this basis, the Respondent submits it would be inconsistent with the objects of the Act and the authorities considering the meaning of “the proposed enterprise agreement” to find that where the NTEU has changed its proposed scope claim, following the successful application for a PABO, for all action granted protection by the authority of that order to no longer protected. Not only would this fail to recognise the reality of bargaining, but it would prescribe a level of specificity on a bargaining representative requiring them to set out the detail of their proposed agreement at the time of an application for a PABO as per s.437(1). Further, for the Commission to determine if industrial action is protected, it would be required to ensure any proposed agreement sought by an employee bargaining representative at a point of time in bargaining is the same as the proposed agreement at the time of the PABO application.
In the present case, the NTEU indicates its present position in relation to the scope of the Agreement has been determined by the actions of the employer in being able to reach an agreement with RMIT Training and its employees without the support of the Respondent. Further, that it would be an extraordinary outcome of such employer action for RMIT employees who are still bargaining to lose their right to take action in pursuit of their claims as a consequence. They submit, on this basis, that if the Applicant’s position is sustained, it would be open for other employers to seek to reach an agreement with a target group of employees within an employee bargaining representatives scope claim to undermine other employees legitimate and authorised right to take industrial action.
Further to this point, the NTEU submits that a finding for the Applicant would be contrary to the objects of the Act to provide a balanced framework for cooperative and productive workplace relations, leaving employee bargaining representatives with a choice of securing employers’ agreement to their proposed scope at the time of making the PABO application, losing access to industrial action, or making a new PABO application.
Reiterating its principal position that the text of the PABO ballot question was only a reflection of the proposed agreement at the time of the PABO application per s.437(1), the Respondent also asserts a closer examination of the full text illustrates that it is not correct that the PABO only authorised industrial action in respect of the NTEU seeking a single enterprise agreement with RMIT University and RMIT Training. The ballot question in full was as follows:
“In support of reaching an Enterprise Agreement with RMIT University and RMIT Training Pty Ltd, do you authorise industrial action against your employers, to be taken separately, concurrently, and/or consecutively, on any number of occasions…”
Read fairly, and in the context of the purpose of ss.436 and 437, the Respondent asserts that it does not preclude the taking of industrial action in support of separate agreements for separate cohorts of staff:
“That is the purpose of the question was to fairly, simply and democratically determine whether employees wish to engage in protected industrial action for a proposed enterprise agreement, where a proposed enterprise agreement is a fluid concept capable of change throughout the course of bargaining”.[14]
With specific reference to s.490(1), it is the Respondent’s submissions that the Applicant’s assertions that the McLaughin Action is unprotected because the proposed agreement currently being sought by the NTEU is different to the proposed agreement at the time of the PABO application is a misunderstanding of s.409(1).
The NTEU’s position is that the reference to proposed enterprise agreement in s.409(1) should not be interpreted as a reference to the proposed enterprise agreement sought by an employee bargaining representative at the time an application for a PABO is made.
Rather, consistent with the accepted meaning of the term proposed enterprise agreement as determined by the Full Bench in Mermaid Marine Vessel Operations v MUA [2014] FWCFB 1317 at [42], it should be read as referring to the proposed enterprise agreement at the time the industrial action is taken, which may indeed be different to a previous iteration of the proposed agreement.[15]
On this basis, the NTEU submits that the Commission can be satisfied the McLaughlin Action has been authorised by the PABO issued by Deputy President Slevin on 24 July 2023, is protected action and therefore, the application should be dismissed.
Consideration
As indicated, for the requirements of s.418 to be met and the Commission be required to “make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order”, I must be satisfied both that the industrial action is “happening, or threatened, impending, probable or being organised” and that the action “is not, or would not be protected industrial action”.
Both the Applicant and the Respondent agree that the action notified by the NTEU for Dr McLaughlin to engage in a stoppage of work on 20 December 2023 falls within the provisions of s.418. I am satisfied that this is the case, and that the action is “happening, or threatened, impending, probable or being organised”.
Put simply, the Applicant’s position is that the action cannot be considered protected because the protected ballot order which is sought to be relied on authorised industrial action to support claims for a particular proposed enterprise agreement with RMIT and RMIT Training. The NTEU and Dr McLaughlin is now proposing to take action for a very different agreement, one with just RMIT.
They contend that the express terms of the PABO decision of Deputy President Slevin and the subsequently ballot question are clear.
The NTEU contend that these words and their intent merely reflect the position of the parties at the time of making its s.437 application and the making of the PABO. They submit that it is an accepted reality of bargaining that the position of the parties can change. That read plainly in the context of the bargaining scheme of the Act, the reference to proposed enterprise agreement in s.409(1) should not be interpreted as a reference to the proposed enterprise agreement sought by an employee bargaining representative at the time an application for a PABO is made but rather, read as referring to the proposed enterprise agreement at the time the industrial action is taken, which may indeed be different to a previous iteration of the proposed agreement. Further, that read fairly, and in the context of the purpose of ss.436 and 437, the PABO question does not preclude the taking of industrial action in support of separate agreements for separate cohorts of staff.
Both parties in this matter rely on their interpretation of the PABO question as central to their case. In these circumstances, the Commission must form its own view. I have considered these words in context of this case and the framework of the statutory scheme relating to the making of enterprise agreements and the taking of industrial action. That scheme must be read as a whole, including provisions relating to bargaining for enterprise agreements and their relationship to provisions concerning protected action.
In that context, I agree with the Respondent that there is nothing in these words that does not contemplate a potential for the taking of industrial action in support of separate agreements for separate cohorts of staff. Explicitly, the words not emphasised by the Applicant that “do you authorise industrial action against your employers, to be taken separately, concurrently, and/or consecutively, on any number of occasions…” are clear.
By reference to “employer(s)”, “separately”, “concurrently” “and/or consecutively” I am satisfied that the PABO question clearly contemplates a potential for action to be taken against RMIT and/or RMIT Training in pursuit of the proposed enterprise agreement.
In the circumstances, the parties being RMIT and the NTEU are both clearly experienced and established practitioners. They are also thoroughly familiar with each other’s established positions, previously making enterprise agreements between them as provided by the Act, including the 3 agreements referred to in the NTEU’ s.437 application under whose terms the employees of which are subject to the PABO.
This familiarity extends to an understanding of parties’ respective positions as to the scope of any proposed agreement and the position of the NTEU to seek a single agreement covering all employees of RMIT and its related entities, and that of RMIT not to agree to this claim.
This question of scope was significant in the PABO decisions of the Deputy President. In proceedings, it was RMIT’s position that the PABO could not be made because there was no “notification time” as required and within the meaning of s.173(2)(a) because at no stage did they agree to, or initiate bargaining for an agreement to cover RMIT and RMIT Training as proposed by the NTEU.
In his decision, the Deputy President visited the interaction of s. s437(2A) and s.173(2)(a) as considered by the Full Bench in Maritime Union of Australia v Maersk Crewing Australia Pty Ltd[2016] FWCFB 1894 (Maersk) where it was said at [26]:
“[26] The legislative purpose in the enactment of s.437(2A) is to ensure that protected industrial action cannot be taken until after bargaining has commenced – that is, after the time when the employer agrees to bargain, or initiates bargaining (or one of the other circumstances constituting the ‘notification time’ within the meaning of s.173(2)). To import into s.437(2A) a requirement that the ‘notification time’ must be in respect of the agreement proposed by the PABO applicant would mean (relevantly in the context of the present matter) that the employer must have agreed to bargain or have initiated bargaining for a proposed enterprise agreement with precisely the same scope as that sought by the PABO applicant. Such a construction would have the effect of removing scope from the matters in bargaining in support of which employees can engage in protected industrial action. This would be the case because a bargaining representative would only be able to apply for a PABO in relation to a proposed enterprise agreement containing the scope proposed by, or agreed with, the employer.” [16]
(Emphasis added)
The Deputy President considered the question of “notification time” with respect of the 3 separate agreements that are the subject of the proposed agreement the NTEU is seeking – the University Agreement, VE Agreement and Training Agreement. The NERR issued by RMIT was considered for each of these 3 agreements and although in each case the notice expressed an intent to bargain for a different agreement to that sought by the NTEU, the Deputy President was ultimately satisfied all the requirements of s.437 had been met. At [87], the Deputy President said:
“As at 15 May 2023, each employer had agreed to bargain in relation to, using that term in the broad sense, the NTEU proposed agreement. At that time, RMIT Training had agreed to bargain in relation to its employees covered by the Training Agreement and RMIT had agreed to bargain in relation to its employees covered by the VE Agreement and the University Agreement. What followed was a series of bargaining meetings and correspondence where the scope of the proposed agreement was discussed. That scope was a central claim in that bargaining.”[17]
In his decision, the Deputy President also considered the meaning of the term “a proposed agreement”. At [78], the Deputy President noted the observations of the Full Bench in Maersk about the expression “a proposed agreement” within the meaning of s.437(1):
“The Full Bench said at [15]:
[15] Mermaid Marine and Skilled Offshore stand for the proposition that all that is required for there to be ‘a proposed enterprise agreement’ within the meaning of ss. 437(1) and 443(1) of the FW Act is an ‘agreement [which] the bargaining representative applying for an order under [s.437] is proposing at the time the application for a protected action ballot order is made’. Further, in MUA v Swire Pacific Ship Management (Australia) Pty Ltd (Swire) the Full Bench characterised a ‘proposed enterprise agreement’ as something that one of the parties wants to negotiate: ‘There need not be a developed draft, and it may simply be an idea or a series of claims…’ While Mermaid Marine, Skilled Offshore, and Swire were all decided before the commencement of s.437(2A), we are not persuaded that the introduction of s.437(2A) affects the reasoning in those cases in respect of this issue.”[18]
In its submissions, the NTEU has also referred to the authorities in Maersk and Mermaid Marine [19] for the proposition that meaning of the term “proposed enterprise agreement” is such that it is accepted within the statutory framework as a “generic term”, allowing for a variety of possibilities, including a party changing it claims and proposed agreement in the course of bargaining.[20] Or, as has occurred in these circumstances, had their position changed for them as a consequence of the actions of the employee and a majority of the employees of RMIT Training.
Considering these authorities in the current context, I am satisfied that the authority provided by the PABO issued by Deputy President Selvin extended to action being taken against RMIT and RMIT Training “taken separately, concurrently, and/or consecutively, on any number of occasions…”. Accordingly, extending to and including the action, as proposed, for Dr McLaughlin to stop work on 20 December 2023.
I am further satisfied, that as established by the authorities in Maersk and Mermaid Marine that it was open to the NTEU to change, or have changed, the scope of its “proposed agreement” from the time of the making of its PABO application and the notification of the McLaughlin Action on 13 December 2023. In doing so, I do not accept the Applicant’s proposition that as a consequence of this change it was negating the PABO and the capacity of its members to take industrial action.
It’s clear to me on a thorough reading of the authorities above, considered in the context of the legislative framework for bargaining and industrial action, that the reality of bargaining is such that parties may, and often must, change positions from the time of the making of a PABO application to the taking of proposed action in order for the objects of the Act to be met.
I am further convinced that a consequence of the Applicant’s contention would be for the employee bargaining representative to either settle a fixed and resolute position as to its scope claim of the “proposed agreement” at the time of the making of a PABO application. Alternatively, they concede to the employer determining the scope of the proposed agreement or, accepting the reality of frustrated scope claims and multiple PABO applications for its members to be able to take protected industrial action.
Such an outcome would be inconsistent with both the authorities and the objects of the Act to promote a “simple, flexible, and fair framework that enables collective bargaining in good faith” and “a fair, simple and democratic process.”
Further, I am satisfied that in the present case the history and sophistication of the bargaining parties and the fact of the significance of the question of scope of the enterprise agreements between them, (as evidence in the PABO decision) is also relevant. Having well established positions as to the scope of any proposed agreement between them, based on the material and submissions before me, I do not find it plausible that at the time of making the PABO Application and crafting the proposed ballot question that it was not within contemplation that a situation where an agreement could be reached through bargaining with RMIT Training and or RMIT separately.
As I have indicated above, the text of the ballot question clearly provides for this when considered in the context of the statutory framework and the established and accepted meaning of the term “proposed enterprise agreement” as generic.
It is well established and accepted that ballot questions should be stated with clarity so that employees can make an informed choice. [21] I have considered this authority in the current context and find it supports my finding that the ballot order proposed by the NTEU was intended to provide protected to actions such as that proposed by Dr McLaughlin.
Both parties have made reference to the ballot authorised by the PABO being a free, independent and democratic expression of the will of employees whether to take industrial action or not in pursuit of the proposed agreement. Being satisfied that the meaning of the “proposed agreement” was generic and may change, in the circumstances of this case, it follows and I am satisfied that the proposed action has been authorised by a democratic expression of the will of employees.
In the present case, there is no evidence to the contrary. In fact, 97.7% of PABO ballot participants voted in favour of the proposed action. Furthermore, the facts of the ballot are that the ballot consisted of 1478 registered voters, with 1128 voters responding to the ballot. The NTEU’s evidence is that it has approximately 40 members at RMIT Training who were eligible to take part in the ballot.
The final question for me to consider, is the Applicant’s position that it is accepted authority that once an enterprise agreement has been made under s.182(1) (or at least once an agreement has been indisputably made) then it is not possible for protected action to be taken in relation to that proposed enterprise agreement.
The Full Bench decision in Carter Holt Havey is the authority for the proposition that protected action cannot be taken once an enterprise agreement has indisputably been made.[22] There is no dispute in this matter that the RMIT Training agreement has been made. The NTEU’s Form F8 has been lodged and indicates it does not oppose the approval of the agreement. Whilst there is some contest of the significance of this position, it is clear to me that the RMIT Agreement has been made and that this is not disputed or opposed by the NTEU.
In Prosegur,[23] the company submitted that the TWU’s appeal application should not proceed because post lodgement of the decision of Deputy President Dean concerning an application for a protected ballot order, a vote to approve the new agreement had occurred and was successful. This has not occurred in the present case. A vote has occurred, and an application has been lodged for approval of the RMIT Training Agreement. The NTEU and its members at RMIT have been authorised to take action in pursuit to claims for a “proposed enterprise agreement” between RMIT and RMIT Training “separately, concurrently, and/or consecutively, on any number of occasions…”.
In AMWU v Broadspectrum (Aust) Pty Ltd[24] and Uniline Australia Limited,[25] the question was whether an agreement should be approved or otherwise. Whilst scope was a factor to some degree in Broadspectrum, the “critical question” decided by the Full Bench was whether a vote to approve a proposed agreement “resulted in the agreement being made in accordance with s.182(1).”[26]
In Uniline, the question determined was whether the Commission could be satisfied an agreement had been genuinely agreed to where the requirements of s.181(2) had not been met.[27] Neither question in these cases is in contest in the present matter. The NTEU has not expressed, nor has it indicated it intends to oppose the approval of the RMIT Training Agreement by the Commission.
In submissions, the Applicant referred to the decision of Deputy President Gostencnik in NUW v CSL Limited[28] where the Deputy President ordered a 30-day extension for a period of protected action finding, at [12]:
“…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”. [29]
I am satisfied with the Applicant’s submissions that this is significantly different from the present circumstances. Including, that it involved one employer; that the ballot question was one of “in support of reaching an agreement with CSL” and the NUW opposed the approval of the agreement that had been made.
However, like the Deputy President, I do not accept that the facts in the present case are analogous to the authorities in Prosegur and Carter Holt Harvey as indicated above.
The evidence and materials presented before me indicate that the facts are clearly distinguishable.
Firstly, the question of “scope” of agreements has been the subject of considerable dispute between the parties for some time. The parties are sophisticated and experienced practitioners, well known to each other and aware of their established positions as evidenced in the PABO decision of Deputy President Slevin. Consequently, the proposed ballot order and questions clearly and explicitly seek authority to take industrial action in pursuit of a proposed agreement with RMIT and RMIT Training “separately, concurrently, and/or consecutively, on any number of occasions…”.
Secondly, alike to the circumstances in NUW v CSL where the employer secured an agreement with a small number of employees within the scope of the NUW’s PABO application without the NUWs agreement, RMIT has been able to secure an agreement with a majority of RMIT Training employees without the NTEU’s agreement.
Thirdly, while a separate legal entity and a second employer for the purposes of bargaining and the PABO application, RMIT Training is a related employer of RMIT. Whilst not the same as in the NUW v CSL matter, where the PABO concerned just one employer, it is not contested that there is a close relationship between these related entities.
Finally, it was the case in NUW v CSL that the PABO question clearly contemplated action in pursuit of a proposed agreement with CSL. As I have indicated above, I am satisfied that when considered in the context of this matter and bargaining provisions of the Act, it is also the case in this matter that the PABO question clearly contemplated the potential for a proposed agreement being made with RMIT and RMIT Training separately or together. I have also been satisfied that the term “proposed agreement” is to be understood as a generic term, capable to change over of course of the bargaining and that in circumstances of this case can be interpreted to include a proposed agreement with RMIT and/or RMIT Training.
On this basis, I am not convinced that industrial action that has been authorised by the PABO and proposed to be taken in pursuit of a proposed agreement, being one that is not the agreement made, should not still be available to employees still covered by the proposed agreement and subject to the PABO.
Conclusion
Having considered all the evidence and submissions in this case, and the requirements of the Commission pursuant to s.418, I am satisfied that the proposed action of Dr McLaughlin on 20 December 2023 is a stoppage of work within the meaning of s.19(1) of the Act that is threatened, impending or probable or is otherwise being organised within the meaning of s.418(1).
For the reasons set out above, however, I am not satisfied that this proposed action of Dr McLaughlin is not, or not would be protected industrial action. Rather, I have found and am satisfied that the proposed action is protected action within the meaning of s.409(1).
Consequently, I have no authority to make the s.418 order sought by the Applicant. This application is dismissed.
Accordingly, and as a result of this decision, the operation of the interim order made on 15 December 2023 ceases to have effect.
COMMISSIONER
Appearances:
Mr Avallone and Ms Cheligoy on behalf of the Applicant
Mr Aplin and Dr McLaughlin on behalf of the Respondent
Hearing details:
2023.
15 December.
Melbourne.
[1] PR769522.
[2] [2023] FWC 1729.
[3] Ibid at [81] - [82].
[4] Applicants outline of submission at [14]
[5] Ibid at [15].
[6] Applicant’s outline of submissions at [43] – [45].
[7] Ibid at [46], referring to John Holland Pty Ltd v AMWU [2010] FWAFB 526.
[8] Ibid at [48] – [52].
[9] [2018] FWCFB 6556.
[10] [2016] FWCFB 4969.
[11] Applicant’s outline of submissions at [6]-[12].
[12] Ibid at [10].
[13] Ibid at [14].
[14] Ibid at [23].
[15] Ibid at [25]-[28].
[16] [2023] FWC 1729 at [72].
[17] Ibid at [87].
[18] Ibid at [78].
[19] Mermaid Marine Vessel Operations Pty Ltd v MUA [2014] FWCFB 1317.
[20] Respondent’s outline of submissions at [27].
[21] Applicant’s outline of submissions at [46], citing John Holland Pty Ltd v AMWU [2010] FWAFB 526.
[22] Carter Holt Havey Woodproducts Australia Pty Ltd [2011] FWAFB 2163.
[23] Transport Workers Union of Australia v Prosegur Australia Pty Ltd [2021] FWCFB 1562.
[24] [2018] FWCFB 6556.
[25] [2016] FWCFB 4969.
[26] [2018] FWCFB 6556 at [19].
[27] [2016] FWCFB 4969 at [55].
[28] [2015] FWC 5949.
[29] Ibid at [12].
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