The Australian Workers' Union v BlueScope Steel (AIS) Pty Ltd and BlueScope Steel Limited
[2012] FWA 6135
•30 JULY 2012
[2012] FWA 6135 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
The Australian Workers' Union
v
BlueScope Steel (AIS) Pty Ltd and BlueScope Steel Limited
(B2012/1115 and B2012/1116)
COMMISSIONER MACDONALD | SYDNEY, 30 JULY 2012 |
Applications made by The AWU for protected action ballot orders for employees of BlueScope Steel (AIS) Pty Ltd and BlueScope Steel Limited - both applications opposed on varying grounds - hearing - oral evidence from union official and managerial person - submissions - objection to standing of The AWU to bring both applications - objection to form of question to be put to balloted employees for both applications - objection to form of question for one application re impact of any industrial action on continuous blast furnace operation of the business - objections considered - applications for protected action ballot orders granted.
BACKGROUND
[1] Two applications for protected action ballot orders were made by The Australian Workers Union (“The AWU”) pursuant to section 437 of the Fair Work Act 2009 (“the Act”) for protected action ballots to be undertaken by members of The AWU, being union members employed by BlueScope Steel (AIS) Pty Ltd (B2012/1115) and BlueScope Steel Limited (B2012/1116), in respect of their South Coast operations.
[2] Both applications were opposed.
[3] The Hearing on the applications and objections was held on Friday 13 July and Monday, 16 July 2012.
[4] The AWU was represented by Mr M de Carne, with Mr W Phillips, Branch Secretary who also gave evidence in the proceedings.
[5] Both BlueScope Steel (AIS) Pty Ltd and BlueScope Steel Limited were represented by Mr K Brotherson, solicitor, who was assisted by Mr A Dearden, solicitor, and Ms P Renkin, Manager Human Resources Manufacturing for both companies.
[6] Mr Brotherson called Mr Robert Heycott, Planning and Scheduling Manager Steelmaking and Strip, of BlueScope Steel (AIS) Pty Ltd to give evidence.
[7] The two AWU applications had been lodged on 10 July arising out of a Hearing before myself on 5 July 2012. On that day, I dealt with seven applications by four trade union organisations for protected action ballot orders. The AWU withdrew from the proceedings its then two applications (2012/1067 and 2012/1068). I issued a decision on 12 July [2012] FWA 5780, granting the applications by the other three trade union organisations for protected action ballot orders.
[8] On 20 July 2012, I issued two Orders granting the two applications made by The AWU: B2012/1115 - PR526571 and B2012/1116 - PR526570. This decision sets out my reasoning for granting The AWU applications.
SUBMISSIONS
For The AWU
[9] Mr M de Carne of The AWU put submissions in support of the two applications, including referencing sections of the Act pertaining to Protected Action Ballot. He also referred to the evidence of Mr Wayne Phillips, Branch Secretary who provided two witness statements (Ex 2 & 3) in support.
[10] Mr de Carne also put submissions concerning the objections to the applications. Those objections were advised to The AWU by Ms Peta Renkin, Manager Human Resources Manufacturing, in her email of 10 July 2012. (Ex 1)
For the Companies
[11] Mr Brotherson, solicitor, for the two Companies (BlueScope Steel (AIS) Pty Ltd and BlueScope Steel Limited), put submissions in support of the objections to the two applications.
[12] In respect of both Companies, Mr Brotherson submitted that The AWU (the federal body which had made both applications) was not the correct legal entity for making those applications. He submitted that another entity, The Australian Workers Union, New South Wales (“The AWUNSW”) should have made both applications. He cited as proof of this submission, that it was The AWUNSW which was the named party to the two state awards which applied to the employees to be balloted. These two state awards are former state awards which transferred across to the federal system and became federal instruments, known as “notional agreements preserving state awards” (NAPSAs). Mr Brotherson also referred to evidence pertaining to The AWU’s log of claims, as showing that it was The AWUNSW that was pursuing those claims during the bargaining negotiations, and therefore The AWUNSW (and not the federal body (The AWU)), should have made the two applications.
[13] In respect of both Companies, Mr Brotherson opposed the form of the question going to the type of industrial action to be put to the balloted employees. He put submissions that the form of the question should not be in the format of a rolled up question. In my Decision of 12 July 2012 (FWA) 5780, I rejected Mr Brotherson’s argument on this very point as to the five applications by the remaining three trade unions and I determined that the question to be put to the balloted employees was to be in the format of the rolled up question.
[14] Be that as it may, as to my Decision, Mr Brotherson put a submission that the employees of BlueScope Steel (AIS) Pty Ltd, warranted a different consideration and outcome on the format of the question to be put. This arose out of clause 37 of the BlueScope Steel (AIS) Pty Ltd - Port Kembla Steel Works Employees Award 2006. That clause spelt out the parties’ recognition in respect of the Company’s hot metal production arrangements arising out of its blast furnace operations and meeting urgent customer needs. Thus, in years past, the hot metal production arrangements had been maintained by some employees during industrial action. That maintenance of hot metal production avoided loss/destruction of the Company’s product.
[15] In order to maintain that hot metal production arrangement, then a rolled up question format was inappropriate. That format included taking industrial actions of greater than four hours duration for employees in the blast furnace operation. Industrial action greater than four hours would result in hot metal production ceasing and cause the loss of tonnes of hot metal which would have to be dumped on site. That submission was based on the evidence of Mr Heycott. Accordingly the question on the type of industrial action to be put should be broken up into separate YES/NO questions and those questions going to industrial action of greater than four hours duration should still be put to the employees of BlueScope Steel (AIS) Pty Ltd.
[16] As to the employees of BlueScope Steel Limited, which did not have a blast furnace - hot metal production, the form of the question should still not be in the rolled up format.
CONSIDERATION
Prerequisites for Section 437 Application
There are certain prerequisites for obtaining a protected action ballot order. Those prerequisites are considered below.
[17] The AWU asserts that it is a bargaining representative for different categories of employees and hence is entitled to make the applications for protected action ballot orders: section 437(1). Mr Brotherson asserts that The AWU (the federal body) is not the bargaining representative, but rather The AWUNSW. This issue will be considered below. The applications are not in respect of a Greenfields agreement or multi-enterprise agreement operations: s.437(2).
[18] The applications specify the group or groups of employees to be balloted: s.437(3)(a) and the question to be put to the employees to be balloted including the nature of the proposed industrial action: s.437(3)(b). Mr Brotherson takes issue with the rolled up form of the question to be put to the employees and takes issue with some of the questions to be put to the employees covered by the BlueScope Steel (AIS) Pty Ltd - Port Kembla Steel Works Employees Award 2006 (B2012/1115). FWA will deal with that issue below.
[19] The Australian Electoral Commission is conducting the ballot and hence s.437(4) has no application.
[20] Mr Brotherson did not submit that the applications infringed s.437(5).
[21] The AWU had complied with sections 441 and 440.
[22] There were multiple applications before FWA but this was not an issue of concern for FWA: s.442.
[23] Section 443 is headed: When FWA Must Make a Protected Action Ballot Order. There are two limbs to s.443(1). The first limb is satisfied in that applications have been made for protected action ballot orders: s.443(1)(a).
[24] The second limb requires that FWA must be satisfied that each applicant is genuinely trying to reach an agreement with the employer of the employees to be balloted: s.443(1)(b). Mr Brotherson submitted, as put above, that it was The AWUNSW and not The AWU that was genuinely trying to reach an agreement.
Issue: Legal Standing of The AWU
[25] One ground of objection to the applications for protected action ballots, was the claim by Mr Brotherson for both Companies, that The AWU (the federal body) did not have standing to bring the two applications. The AWUNSW was/is, he said, the only legal entity that could bring the two applications.
[26] Thus, he said that the AWUNSW is named in the NAPSAs as a party to the two former state awards that govern the wages and conditions of employment of the employees to be balloted. In being so named, that meant that The AWUNSW became the default bargaining representative and therefore The AWUNSW should have made the two applications.
[27] Further evidence in support of The AWUNSW being the correct legal entity to bring the two applications, is found in the bargaining negotiations.
[28] Thus, Mr Phillips’ witness statement cited the outstanding negotiating issues (Ex. 3, para 8) and one such issue was the “removal of the no dumping and customer supply clause” (clause 37). This was the clause going to maintaining hot metal production. Mr Brotherson submitted that this was a clause/issue for negotiations that was relevant for The AWUNSW (and not The AWU federal body) and hence that negotiation issue showed that it was The AWUNSW that was negotiating a proposed enterprise agreement.
[29] Mr Brotherson also referred to other evidence, such as the logo of The AWU and The AWUNSW as being the same, and this caused confusion as to the legal identity of which body was making the two applications.
[30] Mr Brotherson referred to a Full Bench Decision in support of the importance of determining the legal standing of the “applicant”: JJ Richards & Sons Pty Ltd v Transport Workers Union of Australia [2010] FWAFB 9963. In the majority judgement of Vice President Lawler and Commissioner Bissett but with concurrence on this point in the minority judgement, the Full Bench dealt with the issue as to whether the entity that made an application for a protected action ballot order was also the same entity that was involved in the negotiations, that is, was the same entity trying to reach an agreement. In that case, the Bench held that there were two entities involved: the Federal TWU made the application (para 7 of the Decision) but it was the NSW TWU that was involved in negotiations and hence genuinely trying to reach an agreement. There was no evidence that the NSW TWU acted as an agent for the Federal TWU in those negotiations, which would then show a connection between the two entities. Also, the Federal TWU had not done anything in pursuit of an enterprise agreement before lodging its application in order to show a connection between the Federal TWU as the “applicant” and being involved in genuinely trying to reach an agreement (paras 98 to 101).
[31] Mr Brotherson said that legal reasoning/distinction applied to the circumstances of the two applications before FWA as to The AWU versus AWUNSW entities. And it should have been The AWUNSW which made the application for protected action ballot orders.
[32] Having considered the submissions and evidence on this issue, FWA does not agree with the objection of the two Companies on the ground of standing, as put by Mr Brotherson.
[33] FWA rejects the submission of Mr Brotherson that The AWU should have made the application for protected action ballot orders because The AWUNSW is a party to the two NAPSAs. An indusrial instrument does not determine who is a bargaining representative and hence an industrial instrument does not determine who has the power to make an application, under the Act, for a protected action ballot order.
[34] The Act (s.176) sets out which persons can be bargaining representatives for a proposed enterprise agreement. That section does not say that a named party to an industrial instrument is a bargaining representative. Thus, section 176(1)(b) states that “an employee organisation is a bargaining representative of an employee who will be covered by the agreement if: (i) the employee is a member of the organisation; and ...” .
[35] The Membership Application form was put in as evidence (Ex. 11 and 12). That form shows that the applicant for union membership applies to become “a member of the Australian Workers Union Port Kembla, South Coast and Southern Highlands Branch.” In evidence was the Rules of The Australian Workers’ Union (Ex. 13). Rule 33 deals with THE BRANCHES AND DIVISIONS OF THE UNION. Rule 33(7) states that The Australian Workers Union is divided into certain Branches and Divisions. Rule 33(7)(e) advises that the Port Kembla, South Coast and Southern Highlands Branch is a branch of The Australian Workers Union.
[36] Accordingly, the members of the Port Kembla, South Coast and Southern Highlands Branch have nominated that organisation to be their bargaining representative and that organisation is a branch of the federal organisation called The Australian Workers Union.
[37] Section 437 of the Act deals with an application for a protected action ballot order and who may make that application. Section 437(1) states that it is a bargaining representative who makes the application. The section of the Act does not say that a named party to an industrial instrument can make an application. Only a bargaining representative can make an application and in this case, that is The Australian Workers Union.
[38] Mr Brotherson for the two Companies referred to aspects of the log of claims as evidence that it was The AWUNSW (a state registered body and hence not a branch of the federal AWU) that was negotiating the proposed enterprise agreement and therefore The AWUNSW should have made the protected action ballot application. That submission is rejected. Section 437 is predicated on the basis of who can make an application and not on the content of the log of claims. Consistent with that, is the reasoning of the Full Bench in JJ Richards & Sons Pty Ltd, which relevantly was about identifying who was the applicant and who was involved in the negotiations, that is, genuinely trying to reach an agreement.
Issue: Format of the Question
[39] Mr Brotherson submitted that the question to be put to the balloted employees as to the types of industrial action that could be taken, should not be in the format of the rolled up question, as proposed by The AWU. The rolled up format required one vote only: YES to all types of industrial action or NO to all types of industrial action. He submitted that there should be a YES/NO against each type of industrial action.
[40] The rolled up format of the question to be put (as sought by The AWU) is set out below:
“In support of reaching an enterprise agreement with your employer do you endorse the taking of protected industrial action by AWU members against your employer, which may involve taking separately, concurrently and/or consecutively any or all of the action set out below:
1 hour stoppages of work; 2 hour stoppages of work; 3 hour stoppages of work; 4 hour stoppages of work; 8 hour stoppages of work; 12 hour stoppages of work; 24 hour stoppages of work; 48 hour stoppages of work; 72 hour stoppages of work; stoppages of work for a period of one week; indefinite stoppages of work; indefinite or periodic bans on overtime.”
[41] As to the format of the question (rolled up or broken up), I decide that the format will be the rolled up format. My reasoning is set out in my Decision of 12 July 2012 (Ex. 24) in respect of the applications by three trade union organisations for protected action ballot orders in respect of the employees of the same two Companies involved in these matters.
Issue: Protected Industrial Action
[42] Further to the question to be put to the balloted employees of BlueScope Steel (AIS) Pty Ltd (B2012/1115), Mr Brotherson submitted that certain types of industrial action, being industrial actions greater than four hours in duration, should not be put to the employees in the ballot question for their consideration. The reasoning being that these employees were involved in working with a blast furnace that produced hot metal. If the employees took industrial action greater than four hours duration, then this would lead to business consequences such as the dumping of the hot metal in the yard. If the hot metal was not dumped, then it would solidify in or in connection with the business assets, such as the torpedo ladles which conveyed the hot metal. Mr Brotherson also placed reliance on clause 37 of the BlueScope Steel (AIS) Pty Ltd - Port Kembla Steel Works Employees Award 2006 (Ex. 14) which clause goes to the parties’ recognising the importance of protecting the security and integrity of the Company’s assets and not wastefully destroying product.
[43] Mr Brotherson submitted that the dumping of hot metal fell within the parameters of clause 37 with respect to the parties recognition to not wastefully destroy product. That led Mr Brotherson to take FWA to section 415 of the Act: Immunity provision. Section 437(1) deals with immunity from prosecution for protected industrial action, except where the industrial action has involved or is likely to involve: “(b) wilful or reckless destruction of, or damage to, property; or ...”. Accordingly, Mr Brotherson submitted that this was a reason, as well, to restrict certain types of industrial action being put to the balloted employees.
[44] Mr Brotherson was not able to provide any case law in support of his submission for the relief his client was seeking in restricting the types of industrial action that could be asked of the balloted employees in question.
[45] On my reading of section 415, it is saying that industrial action is protected unless the industrial action has involved or is likely to involve certain stipulated criteria. What comes first, on my reading of section 437(1) is the protected industrial action. Having gained protected industrial action, the employee(s) is/are immune from prosecution for the consequence(s) of their industrial action except for certain stipulated criteria. The exceptions where immunity from prosecution no longer applies only kick in after FWA has granted protected industrial action. Thus section 415 has application after the protected action ballot orders have been granted by FWA and has no application beforehand.
[46] Given that interpretation of section 415(1), I reject Mr Brotherson’s submission that I should exercise my discretion to restrict the types of questions that can be put to the balloted employees of BlueScope Steel (AIS) Pty Ltd.
[47] Similarly, any reliance on clause 37 is rejected as a ground for restricting the types of questions that can be put. To adopt that submission would put a straight-jacket on The AWU and its members or any employee(s) who are not AWU members or any AWU members who chose not to have The AWU as a bargaining representative, from being able to raise that clause as part of the negotiating process for a proposed enterprise agreement.
CONCLUSION
[48] For the reasons set out above, I issued the two Protected Action Ballot Orders on 20 July 2012.
COMMISSIONER
Appearances:
Mr M de Carne with Mr W Phillips represented The AWU
Mr K Brotherson, solicitor and Mr A Dearden, solicitor, with Ms P Renkin represented BlueScope Steel (AIS) Pty Ltd and BlueScope Steel Limited
Hearing details:
Sydney
2012
July 13 and 16
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