Suez Recycling Recovery Pty Ltd v Transport Workers' Union of Australia

[2016] FWC 3007

[2016] FWC 3007

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action

Suez Recycling Recovery Pty Ltd
v
Transport Workers’ Union of Australia
(C2016/3726)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 12 MAY 2016

Application for an order that industrial action by employees or employers stop etc

[1] This is the edited text of an ex tempore Decision made in transcript during proceedings on 12 May 2016.

[2] Suez Recycling & Recovery Pty Ltd (Suez) has applied for an order to stop industrial action under s.418 of the Fair Work Act 2009 (Cth) (the Act).

[3] On 9 May 2016 the Transport Workers’ Union of Australia (TWU) served a notice on Suez that it intended to take industrial action on 13 May 2016 in the form of a 24-hour stop work.

[4] I am satisfied that the industrial action is threatened and impending.

[5] I am also satisfied that the industrial action is being organised by the TWU.

[6] The issue is whether the industrial action in question is protected or not. If I find that it is unprotected then I must make the order. If on the other hand, I find that the industrial action is protected then I cannot make the order.

[7] Suez has sought the order based on the apparent non-compliance of the Ballot Order made by Deputy President Sams on 26 April 2016.

[8] The Ballot Order was made in the form of the draft order annexed to the TWU’s application for protected action ballot which stated the voting would “close 20 working days from the date of this order”.

[9] On 28 April 2016 the Australian Electoral Commission (AEC) provided notice to the parties that the Ballot would open on Friday, 6 May 2016 at 2:30 PM and close at 5 PM on the same day.

[10] Section 449(2) of the Act requires the AEC to conduct:

“…the protected action ballot expeditiously and 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 the FWC;

(e) any procedures prescribed by the regulations.”

[11] I am satisfied that the Ballot conducted by the AEC on 6 May 2016 was not conducted in accordance with the Ballot Order and the requirements of s. 449 (2), in that the voting did not close 20 working days from the date of the order.

[12] Suez contends that this means that the ballot was not a valid protected action ballot for the purposes of the Act and the proposed industrial action is not therefore protected industrial action within the meaning of the Act.

[13] However there is more to the issue of whether the protected action ballot was valid than that.

[14] Section 461 of the Act is as follows:

“Validity of protected action ballot etc. not affected by technical breaches

A technical breach of a provision of this Division does not affect the validity of any of the following:

(a) a protected action ballot order;

(b) an order, direction or decision of the FWC in relation to a protected action ballot order or a protected action ballot;

(c) a direction or decision of the protected action ballot agent in relation to a protected action ballot order or a protected action ballot;

(d) a protected action ballot;

(e) the conduct of a protected action ballot;

(f) the declaration of the results of a protected action ballot.”

[15] The question is whether the breach of that part of the protected action ballot order referring to the closing date for the voting amounts to a ‘technical breach’. If it does then the protected action ballot was valid and the industrial action the subject of this application is protected.

[16] What would constitute a ‘technical breach’? In my view one needs to have regard to the statutory purpose of the relevant provision that has been breached, the nature of the breach and the effect of the breach.

[17] The purpose of the Division of the Act concerning protected action ballots is set out in s.436. It states that:

“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.”

[18] Section 443 provides that protected action ballot orders must specify, inter alia, ‘the date by which voting in the protected action ballot closes’. It seems reasonable to infer that the purpose of this provision is to ensure that the ballot agent conducts the ballot in a reasonably expeditious manner.

What has been the effect of the breach?

[19] The breach in question effectively meant that the ballot was conducted in a more expeditious manner than was envisaged by the terms of the order.

[20] The number of employees on the roll of voters was 36, the number of employees on the roll of voters who voted was 30. In other words the ‘turnout’ was 83%. All the questions were supported either by all 30 employees or by 29 employees with one opposed. This suggests that the ballot was successful in giving the employees a democratic process in which they indicated their desire to engage in protected action for a proposed enterprise agreement.

[21] I agree with Commissioner Cambridge in his Decision dated 11 September 2015 1 that:

“… it is clear that the Act intends that the Protected Action Ballot process involves procedures and outcomes which are not unduly affected by legal technicality or rigid interpretation.”

[22] In the circumstances, I am satisfied that the breach of the protected action ballot order was only a ‘technical breach’ with no substantive consequences, having regard to the statutory purpose of the relevant provisions. Accordingly the ballot was valid and the industrial action is protected. Accordingly I am unable to make the order sought by Suez and its application is herby dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr J Dyster appeared for the Applicant

Mr A Guy appeared for the Respondent

Hearing details:

2016

Sydney

May 12

 1   [2015] FWC 6340 at paragraph [24]

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