The Australian Workers' Union v Downer EDI Works

[2010] FWA 8720

[2010] FWA 8720

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Downer EDI Works
(B2010/3573)

Building, metal and civil construction industries
COMMISSIONER CONNOR	WOLLONGONG, 10 NOVEMBER 2010

Proposed protected action ballot by employees of Downer EDI Works.

[1] On Monday, 1 November, 2010 the Australian Workers Union lodged an application under s.437 of the federal Fair Work Act 2009 (the Act) for an order for a protected action ballot for its members employed by Downer EDI Works Pty Limited at its Mogo site. The matter has been allocated to me. I set the AWU application down for proceedings on Monday, 8 November, 2010 in the premises Fair Work Australia now shares with the New South Wales Industrial Commission at 90 Crown Street, Wollongong. Downer EDI Works indicated over the telephone that it was opposed to the orders being made according to the draft order provided to me.

[2] It is a requirement of s.441 that applications for protected action ballot orders be dealt with expeditiously but the material on which Downer EDI Works relied in its opposition to the AWU application for a protected action ballot order had not been provided to me until later on Monday, 8 November, 2010. Nor had it been provided to the AWU until I handed it to the representative of the AWU in the hearing on Monday, 8 November, 2010. Moreover, Downer EDI Works, who were represented by way of a telephone conference, sought that it be represented in person. I therefore adjourned the proceedings for a hearing to consider the objections by Downer EDI Works to the AWU application for a protected action ballot on Wednesday, 10 November, 2010, also in Wollongong. In the hearing Mr Hancock represented the AWU and Mr Barton represented Downer EDI Works.

[3] There are 34 Downer EDI Works employees based at the Mogo site and 26 of those employees are presently covered by the terms of the Downer EDI Works (South Coast Area) Enterprise Agreement 2007. I understand that the remaining employees are casual employees. Negotiations for a new enterprise agreement [EBA] commenced in the middle of 2010 and the AWU has been nominated as bargaining agent for the employees. The AWU has made frequent contact with the management of Downer EDI Works over the proposed EBA, principally be e-mail.

[4] There are certain procedural requirements for protected action ballots. In that respect s.443 of the Act reads as follows:

“(1) FWA must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under s.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;

(b) the group or group of employees who are to be balloted;

(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) If FWA decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that FWA decides, under subsection 444(1) is to be the protected action ballot agent; and

(b) the person (if any) that FWA decides, under subsection 443(3) is to be the independent advisor for the ballot.

(5) If FWA is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1) before a person engages in employee claim action for proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[5] The opposition of Downer EDI Works to the protected action ballot is principally on the basis that it is its understanding that there is likely to be agreement between the company and the employees to the proposed EBA that is being negotiated, making any protected action ballot, in its opinion, unnecessary. Mr Colin Dopson, the surfacing manager of Downer EDI Works situated at Mogo, provided a statutory declaration in which he indicated that on Monday, 1 November, 2010 a toolbox meeting of all employees took place at the Mogo depot. Mr Dopson recorded in his statutory declaration that Downer EDI Works:

“...clearly explained the changes that had currently been proposed in the EBA to date. We then requested that all employees have discussions and give us an indication whether or not they believed that the proposals would be voted for or against to enable us to gain the (chief executive officer’s) approval and hence there would be no time wasted in the process for either party. They agreed to do this and the union representatives (Mr Steven Bradfield and Mr Chris Gatehouse) met with me and gave the indication that the EBA would more than likely be voted in favour of as the general feeling was that the employees did not want to lose any shifts or overtime as a result. It was then agreed that Downer EDI Works would supply a draft document on Monday, 8 November, 2010 and a vote would be held seven days after this on Monday, 15 November, 2010...”

[6] That is not the AWU’s understanding, however. Mr Hancock outlined in the hearing the steps which had been made in the negotiations and indicated that a stalemate had now arisen with respect to some of the claims put forward by the AWU on behalf of the employees. Indeed, it is Mr Hancock’s understanding that Downer EDI Works had on Tuesday, 12 October, 2010 announced that it had reached a final offer on the matter. It is the AWU position that the employees—or at least those employees who are members of the AWU who are all that concerns the AWU—have at this stage indicated some opposition to that purported final offer on the EBA made by Downer EDI Works at meetings on Wednesday, 20 October, 2010 and Thursday, 21 October, 2010.

[7] It is also Mr Barton’s assertion that the AWU has not genuinely been attempting to reach agreement which he claimed to be a pre-requisite for a protected action ballot order. He drew my attention in that respect to a decision on Friday, 9 October, 2009 by a Full Bench of FWA (Watson VP, Hamberger SDP and Roberts C) in Total Marine Services Pty Limited v. Maritime Union of Australia[2009] FWAFB 368 which quashed an order for a protected action ballot because, among other things, the trade union in that case had not been genuinely trying to reach an agreement. In particular, the trade union was prepared to “park” certain industrial matters and was waiting for general pay increases to be developed, had limited face-to-face meetings with management, had not specified the nature of claims made and therefore was not acting, in the Full Bench’s view, in genuinely trying to reach agreement. The Full Bench commented [at para.37]:

“....We are therefore of the view that the pre-requisite for the application under s.443(1)(b) was not satisfied and the Commissioner did not have jurisdiction to make the order...”

[8] Notwithstanding the fact that much of the negotiations between Downer EDI Works and the AWU has been conducted by e-mail, I am satisfied that the circumstances described in Total Marine Services Pty Limited v. Maritime Union of Australia do not arise in this case. The evidence before me from Mr Dopson’s statutory declaration and from what Mr Hancock has submitted supports the contention that the AWU has been active and acting genuinely in the negotiations for a new EBA. The fact that no agreement appears to date to have been reached between the parties—according to Mr Hancock, if not Mr Barton—does not mean that the negotiations have not been conducted genuinely from the outset.

[9] Independent of any action an employer may chose to take with respect to negotiations for a new EBA, which is its right, the Act also gives the employees certain rights through their trade union, including the right to take part in a protected action ballot to determine their attitude in those negotiations. It does not necessarily follow that they will chose to take any industrial action and, if Mr Barton is correct in his assertions concerning the views of the employees to the new enterprise agreement, they are unlikely to embark on any industrial action at all, which is certainly the wise course. But the protected action ballot provides a method by which their collective view may be obtained, through their trade union, to the state of the negotiations. There may be conflicting views advanced before me as to the agreement or lack of agreement in the negotiations for a new enterprise agreement but I see no reason to delay the arrangements available to the AWU, and the employees it represents, by virtue of s.437.

[10] It is a requirement of s.441 that I be satisfied that within 24 hours after making an application for a protected action ballot order, a copy of the application is provided to the employer. That has been done. I am also satisfied that the application for a protected action ballot before me complies with the requirements of ss.437 and 440. The applicant and the employees have been identified in the draft order provided to me by the AWU. The protected action ballot closes no later than 20 working days from the date of the order. The question to be put in the ballot is whether or not, for the purpose of supporting or advancing claims made in respect of current negotiations for a proposed enterprise agreement, a range of specified industrial action—work stoppages of varying duration, an indefinite strike or indefinite or periodic overtime bans. The ballot is to be conducted by the Australian Electoral Commission as the ballot agent.

[11] The language of s.443 makes it mandatory for a protected action ballot order be made (“...FWA must make a protected action ballot order...”) provided there is compliance with jurisdictional and procedural requirements for such an order. I see no grounds for rejecting the protected action ballot and I make the protected action ballot order in the terms which I will issue separately. Of course, since Mr Barton remains convinced that agreement will, in fact, be reached on Monday, 15 November, 2010, it may be that the protection action ballot order following that date is otiose. But that does not mean that, in the meantime and failing agreement on Monday, 15 November, 2010, the employee’s rights, through their trade union, under s.437 should be denied them.

COMMISSIONER

Appearances:

Dave Hancock for the Australian Workers Union

Brett Barton for Downer EDI Works Pty Limited

2010

Wollongong

November, 10

Printed by authority of the Commonwealth Government Printer

<Price code A, PR503814>