Sheldon Coulter v CSBP Limited

[2019] FWC 6534

[2019] FWC 6534

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Shane Johnson; Trent McMahon; Trevor Harman; Evan Mitchell; Sheldon Coulter
v
CSBP Limited
(B2019/970)

DEPUTY PRESIDENT BEAUMONT PERTH, 20 SEPTEMBER 2019

Proposed protected action ballot of employees of CSBP Limited.

[1] On 18 September 2019 at 1341hrs, employee bargaining representatives (the EBRs) filed an application for a protected action ballot order (PABO) pursuant to s 437 of the Fair Work Act 2009 (Cth) (Act). The application concerned a proposed ballot of certain employees of CSPB Limited (CSBP).

[2] The employees in question are those whom the EBRs represent and who would be subject to a proposed enterprise agreement (Proposed Agreement) that would replace the CSBP Limited Enterprise Agreement 2016 (2016 Agreement), which presently covers their employment.

[3] Section 441 of the Act provides that the Commission must, as far as practicable, determine an application for a PABO within two working days after the application is made. The application was listed for hearing on the morning of 20 September 2018.

[4] At the hearing, Ms Moore, appeared for the EBRs and Mr Smetana, appeared for CSBP.

Threshold requirements

[5] I am satisfied that the threshold requirements have been met. Pursuant to s 437(1), I am satisfied that the five applicants are bargaining representatives and are entitled to make the application being considered in this matter.

[6] Considering the evidence and other material provided, I am further satisfied that the application has been properly made under s 437 of the Act and the application was not made earlier than 30 days before the nominal expiry date of a previous enterprise agreement.

[7] CSBP was provided with a copy of the application within 24 hours of it being made as required by s 440 of the Act 1.

CSBP’s objections

[8] CSBP opposed the granting of the order on the basis that certain questions in the proposed order were ambiguous and lacked clarity. In this respect, CSBP referred to questions 1, 2, 3, 11 and 12 as listed below:

Question 1 – An unlimited number of bans on working call backs?

Yes No

Question 2 – An unlimited number of periodic bans on the working of overtime?

Yes No

Question 3 – An unlimited number of indefinite bans on the working of overtime?

Yes No

Question 11 – An unlimited number of periodic bands on participating in training provided where the training is to respond to an emergency posing a risk to the personal safety of any person, the bans will be suspended for the duration of the emergency only?

Yes No

Question 12 – An unlimited number of indefinite bands on participating in training provided where the training is to respond to an emergency posing a risk to the personal safety of any person, the bans will be suspended for the duration of the emergency only?

Yes No

(collectively the Questions)

[9] CSBP contended that the Questions, which appear to relate to call backs, overtime and training, lacked meaning in the context of the CSBP workplace and the 2016 Agreement. To support this submission, CSBP observed that the term ‘call backs’ was not used in the 2016 Agreement and there was no mention of working overtime in the 2016 Agreement. In addition, CSBP noted that the phrasing used in Questions 11 and 12 was difficult to comprehend and it was particularly unclear what ‘the duration of the emergency only’ referred to.

[10] CSBP stated that the description of the nature of the industrial action in the ballot questions should be sufficient to enable the employees to understand the questions so that they were capable of responding to them. It was CSBP’s position that the employees could not properly understand the five ballot questions and would be confused by what would constitute industrial action under the ballot.

Legislative framework

[11] In order to deal with CSBP’s objection, it is necessary to set out the terms of s 437 of the Act. It reads:

“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) Subsection (1) does not apply if the proposed enterprise agreement is:

(a) a greenfields agreement; or

(b) a multi-enterprise agreement.

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) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

Note: The protected action ballot agent will be the Australian Electoral Commission unless FWA specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and

(b) are represented by a bargaining representative who is an applicant for the protected action ballot order.

Documents to accompany application

(6) The application must be accompanied by any documents and other information prescribed by the regulations.”

Consideration

[12] Sections 414(6) and 437(3) both require that the ‘nature’ of the action (being the proposed industrial action the subject of the protected action ballot) must be specified. The object of the relevant division as set out in s 436 is to ensure that those who are to be balloted are afforded a fair, simple and democratic process which leads to the view of employees who vote on the question being expressed in the ballot.

[13] It is said that s 437 itself, seen in its statutory context, requires that the questions should describe the industrial action in such a way that employees are capable of responding to them. 2 I am appreciative that questions which are ambiguous or lack clarity may result in consequences for the bargaining representative and the employees if reliance is placed on the result of the ballot in taking industrial action.3 That is, the risks associated with the drafting of questions are initially taken by the bargaining representatives making the application.4 However, it remains the case that sense must be able to be made of the question or questions posed.

[14] Prior to the hearing the parties had clearly discussed the issues concerning the Questions. At 0759hrs on 20 September 2019, my Chambers received an email from the representative of the EBRs. It outlined that the parties had reached an agreement in relation to the questions to be included in the protected action ballot order, and a draft order was attached to the email. At hearing, the parties confirmed that a consent position had been reached concerning the questions, and a draft order on behalf of both was submitted.

Conclusion

[15] Having considered the submissions of both and the contents of the draft order, I am satisfied that the statutory requirements have been met. An order, PR712561, based on the draft order provided by the parties on 20 September 2019, has accordingly been issued.

DEPUTY PRESIDENT

Appearances:

J Moore of Eureka Lawyers for the applicant.

T Smetana of HLS Legal for the respondent.

Hearing details:

2019.

Perth:

September 20

Printed by authority of the Commonwealth Government Printer

<PR712560>

 1   Fair Work Act 2009 (Cth) s 440.

 2   John Holland Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) The Australian Workers’ Union[2010] FWAFB 526.

 3   Ibid.

 4   Ibid.