The Australian Workers' Union v Alcoa World Alumina Australia Limited
[2009] FWA 796
•26 OCTOBER 2009
[2009] FWA 796 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
v
Alcoa World Alumina Australia Limited
(B2009/10803)
Aluminium industry | |
COMMISSIONER WILLIAMS | PERTH, 26 OCTOBER 2009 |
Proposed protected action ballot by employees of Alcoa World Alumina Australia, Pinjarra Alumina Refinery.
[1] The Australian Workers Union (AWU) has applied to Fair Work Australia (FWA) for an order requiring a protected action ballot to be conducted. The group of employees to be balloted are “All members of the Australian Workers Union currently bound by the Alcoa World Alumina Australia Pinjarra Alumina Refinery Agreement 2005 as described in Appendix 1 of the agreement including cleaners and gardeners” 1.
[2] The ballot is to determine whether these employees wish to engage in particular protected industrial action for a proposed enterprise agreement. The application purports to be made under s.437 of the Fair Work Act 2009 (the Act). The respondent employer that will be covered by the proposed agreement is Alcoa World Alumina Australia (Alcoa).
[3] FWA’s role in determining applications for a protected action ballot order is set out in Section 443 of the Act as follows:
“s. 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) A protected action ballot order must specify the following:
(a) the name of each applicant for the order;
(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.”
[4] Further s. 441 (Application to be determined within 2 days after it is made) states:
“(1) FWA must, as far as practicable, determine an application for a protected action ballot order within 2 working days after the application is made.
(2) However, FWA must not determine the application unless it is satisfied that each applicant has complied with section 440.”
[5] Section 440 requires that within 24 hours of making an application, the applicant must give a copy to the employer and the Australian Electoral Commission or person who the applicant wishes to be the ballot agent. There is no dispute in this instance that the AWU has complied with section 440.
[6] In summaryFWA is required to make a protected action ballot order if the application has complied with paragraph 443(1)(a) and it is satisfied that that the conditions in paragraph 443(1)(b) have been met .
[7] Section 437, which is referred to in paragraph 443(1)(a), relevantly includes:
“s. 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) ….
(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.”
[8] Alcoa oppose this application andsubmits that the onus is on the AWU to demonstrate that its application has met the requirements of s.443. Alcoa argue that is not the case in this instance because the application made is not a valid application under section 437 for the following reasons:
A. The AWU are pursuing a claim which is not about a permitted matter specifically regarding the reduced use of contractors on the Pinjarra site and so the application is not valid.
B. The monetary amounts are not genuine claims and so the AWU has not been and is not genuinely trying to reach an agreement.
C. The AWU are pursuing a claim regarding the entitlements of employees who are terminated which involves an unlawful term contrary to s. 194 of the Act.
D. The ballot order sought includes employees in the group of employees to be balloted, namely cleaners and gardeners that Alcoa have not agreed to negotiate an agreement for.
E. Some of the specific questions to be put to employees in the ballot do not sufficiently clearly explain the nature of the industrial action proposed.
The evidence
Mr Van Maris
[9] The Applicant called Mr Van Maris to give evidence. Mr Van Maris is a full-time paid AWU convenor employed by Alcoa at the Pinjarra alumina refinery. He gave evidence regarding the history of negotiations between the AWU and Alcoa over the last two years. He confirmed that the AWU's position, which has been put to Alcoa over that time in numerous discussions, is set out in the AWU's proposed new agreement 2. He agreed that the AWU's position regarding manning levels for the respective operating centres at the refinery were as provided for in Appendix 7 of Exhibit R1. This would require Alcoa to employ an additional 105 employees. Currently there are approximately 600 employees of Alcoa who are covered by the Alcoa World Alumina Australia Pinjarra Alumina Refinery Agreement 2005 (the Agreement). The evidence was that originally the AWU had sought a higher figure of approximately 120 extra direct employees. His evidence was that the AWU does not seek to outlaw or stop contractors from working on the refinery site but rather the AWU's position is that they want less work to be done by employees of contractors3. They also want Alcoa employees to work less supplementary shifts. Supplementary shifts are voluntary shifts offered to Alcoa employees over and above their ordinary hours of work.
[10] He agreed that increasing the Alcoa employees would lead directly to less employees of some contractors being engaged on site 4.
[11] In his evidence he acknowledged that throughout the draft agreement provided by the AWU 5 the union was proposing that a series of clauses that in the current agreement deal with the right of Alcoa to use contractors in various circumstances all be amended to remove the reference to using contractors6.
[12] The evidence is that the AWU recognise that the increase in the number of direct Alcoa employees they are seeking will lead directly to a reduction in the numbers of employees engaged by some particular contractors at the refinery
[13] The evidence was that the HR manager of Alcoa, Mr. Gleeson had previously told the AWU that their claim regarding contractors was prohibited content under the then existing Workplace Relations Act 1996.
[14] With respect to the monetary claims, which involve a 10% per year wage increase for all years into the future until such time as the agreement is replaced and increases to allowances throughout the agreement of often as much as 50%, his evidence was that this was not a fanciful claim. The wage claim in part flowed from the unions belief that there had been a previous commitment from Alcoa management that the employees wages would be maintained at the 75 percentile level compared to comparative employees in similar industries but that this relativity had been eroded to the point where it was now approximately at the 50 percentile level. He acknowledged that the total monetary claim was a large one. However his evidence was that these amounts were negotiable but that there had been no downward adjustment throughout the discussions to date by the AWU.
[15] With respect to the cleaners and gardeners Mr Van Maris said that the company already employed some cleaners and gardeners although he acknowledged that there were others engaged by contractors. He believed that the Alcoa cleaners and gardeners were covered by the Agreement already through the Service Person classification in the Agreement at the Job Grade 9 and Job Grade 10 respectively.
[16] Evidence was also given about his view of the meaning of the respective questions that would be put to employees in the ballot.
Mr Gleeson
[17] Mr Gleeson is Alcoa's Human Resource Manager for the Pinjarra Alumina Refinery and he gave evidence about his involvement with the AWU through the negotiations to date.
[18] His evidence was that his understanding of the AWU's claim for Alcoa to employ an additional 105 direct employees was that these additional employees would be necessary in part because the AWU are claiming that Alcoa should remove some work that is currently done by contractors at the refinery and require this work be done by Alcoa employees. The additional Alcoa employees were in part necessary because of the other element of the AWU's claim which was that there should be a reduction in the number of supplementary shifts worked by Alcoa employees generally.
[19] Mr Gleeson's evidence was that Exhibit R3 is the equivalent of Appendix 7 from the AWU's draft agreement 7 that had been put to Alcoa with an additional column that summarises Mr Gleeson's understanding of the reasoning provided by the AWU for the additional Alcoa employees the AWU claim should be engaged in particular departments. His evidence was that while a copy of Exhibit R3 has not been provided to the AWU they have viewed a copy during meetings with him8.
[20] His evidence was that as set out in Exhibit R3, for the following departments there would be a direct reduction in the number of employees engaged by the following contractors if the AWU's claim from additional Alcoa employees was agreed to:
Department | Affected contractor |
P 20 | TIS and Viola |
Scaffolders | Cape |
Delron | |
Cleaners | |
P 22 | CECK |
Enviro | Sutherland Enterprises |
Security | Chubb |
Temps | Ready Workforce and Monadelophous |
[21] His evidence was that the total increase from the claim in Exhibit R1 for the first year amounted to approximately a 45% increase in labour costs and for the second year approximately a 55% increase in labour costs.
[22] Mr Gleeson identified a number of provisions in the Agreement that provided Alcoa with the conditional right to use contractors that the AWU are claiming should be deleted.
[23] His evidence was that Alcoa in September 9 advised employees of their representational rights and that Alcoa was bargaining in relation to an enterprise agreement that was proposed to cover members of the AWU and persons eligible to be members employed by Alcoa at Pinjarra “.. in the Job Positions contained in the Alcoa World Alumina Australia Pinjarra Alumina Refinery Agreement 2005”. This in Mr Gleeson's view does not include employees currently employed by Alcoa as cleaners and gardeners.
[24] Mr Gleeson agrees that Alcoa does employ cleaners and gardeners at Pinjarra however he believes these positions are not legally covered by the existing agreement although they are paid using its provisions 10.
[25] Mr Gleeson conceded that if the AWU's claims were agreed to this would not involve the removal of contractors from site altogether but only a reduction in the number of persons they employed on site at Pinjarra.
Consideration
Permitted matters
[26] I have reviewed Exhibit R1 which is the draft agreement proposed by the AWU. The AWU's proposed agreement includes the following changes to the Agreement:
Clause 4 . Aims of the agreement
Delete the statement that the parties “. ..accept the use of contractors for peak workloads…”
Delete the statement that the parties accept as prescribed by the agreement the “ .. use of contractors…” to minimise turnaround time in the event of major breakdowns and peak workloads.
Clause 18 Industrial Relations Procedures
Delete the statement that in disputes about management's decision to utilise contractors the status quo requirement in the grievance procedure “… shall not prevent or delay the performance of such work by contractors.”
Delete subclause (d) Utilisation of Contractors which provided conditional rights for the company to use contractors to perform specialised work or services, install, modify or maintain facilities plant and/or equipment and to supplement the company workforce to meet variable workloads or short-term shortages of labour.
Clause 19 Supplementary Labour and/or Contractors
Delete the statement that it is acknowledged that the goal of ensuring production and maintenance work is completed on schedule “.. may require the timely and reasonable utilisation of contractors subject to the provisions as set out in this clause.”
Delete all further references to the use of contractors in circumstances where Alcoa employees are unable to do the work.
[27] The terms of Exhibit R1, the AWU proposed agreement, and the evidence of both witnesses does demonstrate that a central claim of the AWU has been that there should be fewer employees of contractors working at the Pinjarra refinery and as a consequence some increase in the number of Alcoa employees working there and the employers right to use contractors would no longer be express.
[28] The evidence is not that the AWU claimed a particular form of words to be included in the agreement that limited Alcoa's right to use contractors. The draft agreement 11 from the AWU rather, deleted any express statements of Alcoa's positive right to use contractors. But it is abundantly clear from this document and the witness evidence that what was claimed by the AWU from Alcoa was their agreement to reduce the number of contractor employees on site and it is intended that there would only be a restricted or qualified right to use contractors.
[29] Often claims will be made in bargaining without the party making the claim reducing it to writing or initially particularising any form of words to be included in the final agreement. So it is here. Regardless, what was claimed is quite clear. A central claim was for Alcoa to reduce the number of contractor employees and constrain the use of contractors.
[30] Alcoa argues that a claim of this nature is not about permitted matters.
[31] One consequence of this Alcoa says is that there is not a valid application before the tribunal. It is said that the application has not been properly made under s. 437 because the proposed industrial action being in support of non permitted matters would not be protected industrial action as required by s. 437(1). Reference is made to the reasoning of Commissioner Thatcher in Maritime Union of Australia v Total Marine Services Pty Ltd 12. At paragraph 47 the Commissioner determined that
“[47] In my opinion for the following reasons, the ordinary meaning of the wording of s.443 and s.437(1) supports a statutory intention that in considering whether an application has been made under s.437, FWA should establish from the circumstances of the particular case that the application does not involve circumstances which are inconsistent with the proposed industrial action becoming protected industrial action:
(a) Paragraph 443(1)(a) is a new provision which has work to perform. There was no equivalent mandatory provision under s.461 (Application not to be granted unless certain conditions met) of the Workplace Relations Act 1996;
(b) s.437(1) does not state that the applications for an order requiring a protected action ballot to be conducted is to determine whether employees wish to engage in particular industrial action in support of the agreement that may or would be likely to be protected. Rather it states ‘whether employees wish to engage in particular protected industrial action for the agreement’;
(c) Under the Workplace Relations Act 1996 there was accepted case law that an applicant for a ballot order could not be genuinely trying to reach an agreement if the proposed collective agreement contained prohibited content. 26 Under the Act, industrial action is not employee claim action, and therefore protected industrial action, unless the claims in relation to the proposed enterprise agreement are only about, or reasonably believed to be only about, permitted matters.(paragraph 409(1)(a)) Therefore under the Act the prohibition on protected action ballots involving a claim for prohibited content is now stated explicitly (via s.443(2)) within paragraph 443(1)(a) by reason of s.437(1), rather than reliance on the ‘genuinely trying to reach an agreement’ test under paragraph 443(1)(b);
(d) If this was not the statutory intention, employees could not have confidence that the particular proposed industrial action included in the questions put to them in a ballot would, subject to requirements in relation to conduct and other developments subsequent to the ballot, be protected industrial action, (s.415 - Immunity provision) when they voted on whether they wished to engage in particular protected industrial action;
(e) The construction is not over-technical. The application of paragraph 443(1)(a) in this manner is assisted by the following clause in the Explanatory Memorandum to the Fair Work Bill 2008:
“1770. FWA must make a protected action ballot order if an application has been made in accordance with clause 437 (which deals with content and related requirements) and the applicant is and has been genuinely trying to reach an agreement with the employer of the employees to be balloted (subclause 443(1))” (emphasis added);
(f) Similar to the other pre-requisite in s.443(1) that the applicant for a protected action ballot order has been and is genuinely trying to reach an agreement, the requirement that the particular industrial action in the ballot be protected industrial action ‘will help to ensure that parties focus on agreement making and the Government does not fully fund ballots authorising industrial action which would be unprotected at the time of the application’; 27
(g) The approach is consistent with paragraph 443(3)(d) which provides that a protected action ballot order must specify ‘the nature of the proposed industrial action’ rather than the nature of the proposed protected industrial action. Whilst FWA can establish that an application does not involve circumstances which are inconsistent with the proposed industrial action becoming protected industrial action, it can not, of course, declare that the proposed industrial action will be protected industrial action.
[48] Such an application of paragraph 443(1)(a) and s.437(1) is assisted by reference to the following clause in the Explanatory Memorandum to the Fair Work Bill 2008 that refers to s.172(1), which provides that an enterprise agreement may be made about certain permitted matters prescribed therein:
“667. Whether an enterprise agreement is about permitted matters is also significant in the context of protected industrial action for the purpose of clause 409 (which deals with employee claim action). Employees and their bargaining representatives cannot organise or take protected industrial action in support of claims for a proposed enterprise agreement that will include terms that are not about permitted matters.”
[32] This decision of Commissioner Thatcher was reviewed by a Full Bench on appeal. The Full Bench acknowledged the relevant submission by the respondent, put to Commissioner Thatcher at first instance, at paragraph 23 of their decision as follows:
“[23] TMS opposed the application on two grounds. First, it submitted that the application had not been properly made under s 437 because the proposed industrial action is not protected industrial action as required by s 437(1), and in addition the application did not satisfy s 437(3)(b). Secondly, TMS submitted that the Tribunal could not be satisfied that the MUA had been and was genuinely trying to reach an agreement, as required by s 443(1)(b) of the Act.”
[33] The Full Bench did not challenge the legitimacy of this submission and did not take issue with this reasoning of Commissioner Thatcher above.
[34] The respondent also refers to the recent decision of Australian Postal Corporation v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 13. This decision of the Full Bench relevantly concluded that :
“[43] It is apparent that the scheme of the FW Act is that the substantive terms of an enterprise agreement are to be about permitted matters. Since an enterprise agreement is made by employees approving a proposed enterprise agreement, it follows that the substantive terms of a proposed enterprise agreement are also to be about permitted matters.
[44] As a result, an applicant for a protected action ballot order pursuing a claim as a substantive term of a proposed enterprise agreement which is not about a permitted matter is not genuinely trying to reach an agreement with the employer of the employees to be balloted.”
[35] And further that:
“[55] The evidence reveals that, while in November 2008 the CEPU was seeking contracting out provisions to the extent permitted, by 18 December 2008 the CEPU was seeking changes to contractor provisions to require Australia Post to advertise every position internally and to only contract out a position if it is not wanted by an Australia Post employee.
[56] The issue of whether a claim about contractors is a matter pertaining to the relationship between an employer and its employees was considered by French J, as he then was, in Wesfarmers Premier Coal Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (No. 2). 53 His Honour found that “provisions restricting or qualifying the employer’s right to use independent contractors” are not matters pertaining to the employment relationship.54
[57] Contractor provisions requiring Australia Post to advertise every position internally and to only contract out a position if it is not wanted by an Australia Post employee are “provisions restricting or qualifying the employer’s right to use independent contractors”. 55 The CEPU sought such provisions as a substantive term of the proposed enterprise agreement. The claim was not minor, trivial or ancillary. Therefore, by 18 December 2008, the CEPU was seeking a matter not pertaining to the employment relationship as part of EBA7. Nor do such provisions fall within any of the other categories in s.172(1) of the FW Act.
[58] There is a lack of detail in the CEPU’s claims in respect of contractors for EBA7 post-18 December 2008. However, given the history of the negotiations between the parties and the failure of the CEPU to abandon its claim of 18 December 2008 or make clear to Australia Post after 18 December 2008 that it was not pursuing a contractor claim that does not pertain to the employment relationship, 56 we considered it could be assumed that after 18 December 2008 the CEPU’s claims in respect of contractors for EBA7 included those sought by them on 18 December 2008.
[59] As a result, the CEPU has been and is pursuing as a substantive term of the proposed enterprise agreement a claim in respect of contractors which is not about a permitted matter for a proposed enterprise agreement under the FW Act. Her Honour’s conclusion to the effect that from 10 November 2008 the CEPU ceased to press its claim for Australia Post to include a clause in EBA7 in relation to contractors that was not permissible was in error. 57
[60] Since the CEPU has been and is pursuing as a substantive term of the proposed enterprise agreement a claim in respect of contractors which is not about a permitted matter, we were not satisfied the CEPU has been, and is, genuinely trying to reach an agreement with Australia Post, being the employer of the employees to be balloted.
[61] As a result a jurisdictional pre-requisite for making the protected action ballot order sought by the CEPU in its s.437 application concerning Australia Post employees, excluding Post Logistics’ employees, was not satisfied. Her Honour erred in concluding otherwise. 58 We therefore decided to uphold the appeal and quash her Honour’s decision in so far as it concerned Australia Post’s employees excluding those employed in Post Logistics and to dismiss the s.437 application of the CEPU concerning Australia Post and its employees excluding those employed in Post Logistics.
[62] We add that we did not need to deal with the issue of whether a person who reasonably believes they have been and are pursuing a claim about a permitted matter as a substantive term of a proposed enterprise agreement has been, and is, genuinely trying to reach an agreement. Given the authority in Wesfarmers case and the status of those in the CEPU who were pursuing the claim, the CEPU could not have reasonably believed the aforementioned claim in respect of contractors that it had been and was pursuing as a substantive term of the proposed enterprise agreement was about a permitted matter.”
[36] The AWU concede in their submissions that the intent of their proposed agreement is to increase the manning levels of Alcoa employees and “..reduce the amount of contract labour onsite.” 14
[37] Considering the evidence and case law above I find that the claim for Alcoa to reduce the number of contractor employees and to restrict or qualify Alcoa’s right to use contractors is not a matter pertaining to the relationship between Alcoa and Alcoa’s employees whom would be covered by an agreement. This claim by the AWU is not about permitted matters as defined in s. 172 of the Act.
[38] Consequently the industrial action proposed to be considered in this ballot would be in support of non-permitted matters. This is inconsistent with that industrial action becoming protected industrial action which is a requirement of s 437(1). Consequently applying the reasoning of Commissioner Thatcher in Maritime Union of Australia v Total Marine Services Pty Ltd this application has not been properly made under s 437. On this ground the application must be dismissed.
[39] In any event because the AWU is pursuing a substantive claim which is not about a permitted matter I find that the AWU is not genuinely trying to reach an agreement with Alcoa, the employer of the employees to be balloted. Applying the authority of the Full Bench in the Australia Post case above as a result a jurisdictional pre-requisite for making the protected action ballot order sought by the AWU in this application is not satisfied and on this ground the application must be dismissed.
Non genuine claims
[40] With respect to the submission that the monetary claims by the AWU are not genuine claims and so the AWU are not genuinely trying to reach an agreement, the evidence about the negotiations around the monetary claims is sparse. The evidence is limited to what the claims advanced by the AWU are, that these have not been reduced, what Alcoa believes these amount to in terms of total labour costs, that Alcoa have made a counter offer and that the AWU says the monetary claims are negotiable.
[41] I am left with the impressions that there has been little negotiation around the monetary claims. It seems the majority of the discussions to date have been about the claimed manning increases and contractor issues.
[42] As the AWU points out often in negotiations the monetary claim is the last matter to be finalised between the parties. The evidence presented is not sufficient for me to conclude that the claims by the AWU for wage increases and increases in various allowances are not genuine. I do not accept that the monetary claims and the AWU’s approach to these demonstrate that the AWU is not genuinely trying to reach an agreement. The respondent has not made out this ground of objection to the application.
Unlawful Terms
[43] One of the terms 15 the AWU seeks in a new agreement is as follows:
“Clause 18. Industrial Relations Procedures
….
(b) Disciplinary Action
….
(vi) If the Company takes a decision to dismiss an employee, the Union may put the matter in dispute. If the Union subsequently refers the matter to the Australian Industrial Relations Commission, the employee will continue to receive normal pay and entitlements until the matter is determined.”
[44] Alcoa submit this is an unlawful term as defined in s. 194 of the Act. This section is as follows:
“s. 194 Meaning of unlawful term
A term of an enterprise agreement is an unlawful term if it is:
(a) a discriminatory term; or
(b) an objectionable term; or
(c) if a particular employee would be protected from unfair dismissal under Part 3-2 after completing a period of employment of at least the minimum employment period—a term that confers an entitlement or remedy in relation to a termination of the employee’s employment that is unfair (however described) before the employee has completed that period; or
(d) a term that excludes the application to, or in relation to, a person of a provision of Part 3-2 (which deals with unfair dismissal), or modifies the application of such a provision in a way that is detrimental to, or in relation to, a person; or
(e) a term that is inconsistent with a provision of Part 3-3 (which deals with industrial action); or
(f) a term that provides for an entitlement:
(i) to enter premises for a purpose referred to in section 481 (which deals with investigation of suspected contraventions); or
(ii) to enter premises to hold discussions of a kind referred to in section 484;
other than in accordance with Part 3-4 (which deals with right of entry); or
(g) a term that provides for the exercise of a State or Territory OHS right other than in accordance with Part 3-4 (which deals with right of entry).”
[45] For a particular employee whom would be protected from unfair dismissal under Part 3-2 of the Act after completing the minimum period of employment, the AWU’s proposed Clause 18 (b)(vi) would confer on them an entitlement in relation to a termination of the employee’s employment that is unfair, before the employee had completed that minimum period.
[46] On its terms Clause 18 (b)(vi) applies to all employees who are dismissed including those that have completed less than 6 months with Alcoa, the relevant minimum employment period. The entitlement conferred on the employee by this clause is to continue to receive their normal pay and entitlements until the matter is determined.
[47] Consequently I agree that this term of the proposed agreement would be an unlawful term as defined by s 194(c).
[48] Section 408 prescribes that industrial action is protected industrial action for a proposed enterprise agreement if it is employee claim action for the agreement. Section 409(3) prescribes that employee claim action for a proposed enterprise agreement must not be in support of or to advance claims to include unlawful terms in the agreement.
[49] Therefore industrial action taken by employees in support of a claim to include the AWU’s Clause 18 (b)(vi) in an agreement, which is an unlawful term, will not be employee claim action and so cannot be protected industrial action. This is inconsistent with that industrial action becoming protected industrial action (by virtue of being endorsed by a majority of employees in a ballot), which is a requirement of s 437(1). Consequently this application has not been properly made under s 437. On this ground the application must be dismissed.
Cleaners and gardeners
[50] This application identifies the group or groups of employees to be balloted as,
“ All members of the Australian Workers Union currently bound by the Alcoa World Alumina Australia Pinjarra Alumina Refinery Agreement 2005 as described in Appendix 1 of the agreement including cleaners and gardeners.”
[51] Alcoa says it has never agreed to bargain with the AWU for an agreement that would cover cleaners and gardeners. Alcoa points to Exhibit R2 which shows that Alcoa expressly gave notice in a Memorandum to employees that it was bargaining in relation to an enterprise agreement proposed to cover “.. members and persons eligible to be members of the AWU who are employed by the Company at the Pinjarra Alumina Refinery in Western Australia in the Job Positions contained in the Alcoa World Alumina Australia Pinjarra Refinery Agreement 2005”.
[52] The Agreement as certified, PR962645, in its index includes “Appendix 1 - Job Position Descriptions” The Appendix attached to PR962645 however identifies itself as “Appendix A - Job Descriptions.”
[53] Whilst there is some imprecision in the language the parties use it is clear there is a common understanding that Appendix 1 referred to by the AWU and the Job Positions referred to by Alcoa are in fact referring to “Appendix A - Job Descriptions” attached to PR962645.
[54] The AWU argue that cleaners and gardeners are covered by the Service Person Job Description in Appendix A - Job Descriptions. Alcoa submit this is not correct.
[55] I have reviewed the Service Person Job Description. The following extracts from that job description below demonstrate what this position entails.
“The Service Person is accountable for ensuring that the day-to-day maintenance and servicing of plant and process equipment is carried out in a safe, efficient, and cost-effective manner.”
“This position is located within an Operations Centre at the Pinjarra Refinery and provides for the consistent completion of planned maintenance and effective reaction to unplanned equipment failures.
It is one of several positions within a crew that as a team are charged with maintaining and servicing the process equipment. This position also provides support for the crew in the allocation and efficient use of resources.”
[56] The AWU have provided nothing more than an assertion that cleaners and gardeners are covered by the Service Person job description. Self evidently on its face this job description does not cover cleaners and gardeners.
[57] Mr Gleeson accepted in his evidence that cleaners and gardeners employed by Alcoa at Pinjarra are paid under the Agreement. Alcoa do this as a convenience. That however is not the same as cleaners and gardeners being legally covered by the Agreement.
[58] I'm not satisfied at all that cleaners and gardeners are currently covered by any of the job descriptions contained in the Agreement.
[59] I find that Alcoa has not agreed to negotiate an enterprise agreement to cover cleaners and gardeners.
[60] Alcoa submits that such a disagreement between the parties as to whom a proposed agreement should cover is able to be resolved by the AWU seeking a s. 238 Scope Order to support its view, but the AWU have not done this.
[61] Consequently all matters the AWU seeks to pursue as claims regarding gardeners and cleaners will not be permitted matters as defined in s. 172 (1)(a) because they are not matters pertaining to the relationship between an employer that will be covered by the agreement and that employers employees who will be covered by the agreement.
[62] Again because the proposed industrial action to be considered by employees, if a ballot was ordered, is in support of non permitted matters that industrial action is not employee claim action as defined in s. 409. Consequently such industrial action will not be protected industrial action as defined in s. 408. This is inconsistent with the fact that an application under s 437(1) can only be made for a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement. The application therefore has not been properly made under s. 437 and so on this ground the application must be dismissed.
Clarity of questions
[63] Alcoa further argues that some of the questions proposed to be considered by employees in the ballot are not clear to the extent that these ambiguities are fatal to the application.
[64] Whilst I agree that there is some ambiguity in some of the questions as asserted by Alcoa given my findings above regarding the other grounds of objection it is not necessary to review these questions in detail. The AWU however would be well advised to review the wording of the questions in the light of the concerns raised by Alcoa for the purposes of any future similar applications with Alcoa or any other employer.
Conclusion
[65] For the reasons explained above I uphold the objections raised by Alcoa on grounds A. C. and D set out in paragraph [8] above and consequently dismiss this application.
COMMISSIONER
Appearances:
Mr. M Zoetbrood of the Australian Workers Union for Australian Workers Union
Mr T Davies of Blake Dawson Lawyers for Alcoa World Alumina Australia Limited
Hearing details:
Perth.
2009:
October 19
1 Form F34, B2009/10803.
2 Exhibit R1
3 PN 135
4 PN 75 to 77, 83, 86, 88 – 89, 98-99,
5 Exhibit R1
6 PN 79 – 84.
7 Exhibit R1
8 PN 438 to 463
9 Exhibit R2
10 PN 519, 520
11 Exhibit R1
12 2009 FWA 187
13 (C2009/10364 and C2009/10366) [2009] FWAFB 599
14 PN 543.
15 Exhibit R1, pg 26.
Printed by authority of the Commonwealth Government Printer
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