The Australian Workers' Union v John Holland Pty Ltd

[2009] FWA 576

Note: An appeal pursuant to s.604 (C2009/10723) was lodged against this decision - refer to Full Bench decision dated 28 January 2010 [[2010] FWAFB 526] for result of appeal.

[2009] FWA 576

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

The Australian Workers' Union
v
John Holland Pty Ltd
(B2009/10771)

COMMISSIONER SPENCER BRISBANE, 12 OCTOBER 2009

Proposed protected action ballot by employees of John Holland Pty Ltd – whether question is ambiguous – need for question to be unambiguous – Fair Work Act 2009, ss 436, 437, 443.

Introduction

[1] This decision relates to an application by the Australian Workers Union (AWU) filed on 7 October 2009, for an order under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order at the John Holland Richlands’ site.

[2] At the hearing before me on 8 October 2009 Mr Broanda appeared for the AWU and Mr Herbert for John Holland Pty Ltd (the employer).

[3] The application sought an order that a ballot be held of AWU members employed at the John Holland Richlands’ site who would be covered by a proposed enterprise agreement. The Application did not identify these employees with the requisite specification as the name of the workplace was absent from the nominated particulars, but it was recognised that Fair Work Australia could remedy this matter pursuant to s.599 of the Act. A witness statement made by Mr Chambers an organiser for the AWU indicated that the AWU has been conducting negotiations for a new enterprise agreement covering employees presently covered by John Holland Richlands Fabrications and Coatings Agreement 2007-2009. I have as foreshadowed at the hearing, exercised the powers pursuant to s.599 to rectify this deficiency in the application.

Background

[4] The employer objected to the orders on the basis that the questions in the ballot were ambiguous and that the AWU was not genuinely trying to reach agreement, as they were seeking the incorporation of the whole Metal Engineering and Associated Industries Award 1998 (the Award) in the proposed agreement and that this was pattern bargaining.

[5] The application sought that the following questions be put to employees:

“In support of reaching an Enterprise Agreement with John Holland Pty Ltd do you endorse the taking of any and all protected industrial action against your employer which is authorised by this ballot, separately, concurrently and/or consecutively in the form of:

Question 1

Stoppages of work for a 1 hour period?

Yes / No

Question 2

Stoppages of work for 2 hour periods?

Yes / No

Question 3

Stoppages of work for 4 hour periods?

Yes / No

Question 4

Stoppages of work for 8 hour periods?

Yes / No

Question 5

Stoppages of work for 10 hour periods?

Yes / No

Question 6

Stoppages of work for 24 hour periods?

Yes / No

Question 7

Stoppages of work for 48 hour periods?

Yes / No

Question 8

Indefinite or periodic bans on overtime?

Yes / No”

[6] The employer submitted that the preamble to the questions to be put to the employees, made the questions ambiguous and confusing. The AWU had declined to modify the questions and both parties stated that these questions were identical to the questions considered in a ballot application (B2009/10738) made by the AMWU of employees at the same site against the same employer. This application was determined in the prior week by Senior Deputy President Richards in PR989657, 1 wherein he issued the order and sanctioned the questions in this form.

[7] This decision also considered the other objection raised by the employer, that being that the union was not genuinely trying to reach agreement as the AMWU (in B2009/10738) was seeking the inclusion of all of the Award in the agreement, and Mr Herbert argued that contravened s.412(3)(a) of the Act.

Relevant Legislation

[8] Protected action ballots are governed by Chapter 3, Part 3-3, Division 8 of the Act. The object of this Division is expressed as follows:

“436 Object of this Division

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.

Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.”

[9] Section 437(3) provides:

“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.”

[10] Section 443(1)-(3) provides:

“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;

(b) the group or groups 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.”

The requirement for questions to be unambiguous

[11] It was contended on behalf of the employer that the questions were ambiguous and that an employee might not be able to discern the nature of a “yes’ or “no” answer, in so far as it may be a response to the multiple proposals for industrial action imbedded in the premise. The premise questions whether to take industrial action, “separately, concurrently and/or consecutively” or to not include that particular industrial action in such a course of industrial action.

[12] Senior Deputy President Richards in his decision dealt with the issue of the ambiguity of the questions. I rely on his reasoning which also refers to the decisions of Vice President Watson’s decisions in National Union of Workers—New South Wales Branch v FreshExchange Pty Ltd 2 andthe Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Coates Hire Operations Pty Ltd3. Senior Deputy President Richard’s decision in part states:

“Upon reflection, I am not of the view that the question that is currently before me is ambiguous in the same sense, or in any sense, that His Honour found above. [in FreshExchange] The question before me plainly invites employees to authorise any of a number of particularised forms of industrial action for purposes of the approach stipulated in the premise to the questions.

The questions before me do not appear to me to be a (sic) ambiguous such that they might invariably lead an employee into confusion. Nor are the questions as structured likely to yield a confusing result.

I am fortified in this approach by the approach adopted by His Honour, Vice President Watson in his decision in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Coates Hire Operations P/L[2009] FWA 262 (10 September 2009), which was published some 3 days after his decision in NUW v Fresh Exchange.

In his decision in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Coates Hire Operations P/L[2009] FWA 262, His Honour approved an amended set of questions which were in the following terms:

“Do you, for the purpose of supporting or advancing claims for a proposed Enterprise Agreement with Coates Hire Operations Pty Limited, authorise the taking of any of the protected industrial action, or part of the protected industrial action, or all of the protected industrial action against Coates Hire Operations Pty Limited, which is authorised by this ballot, separately, concurrently and/or consecutivelyin the form of: (emphasis added)

1. Indefinite or periodic bans of varying length on overtime?

Yes / No

2. Indefinite or periodic bans of varying length on call outs?

Yes / No

3. Indefinite or periodic bans of varying length on paper and administrative work required or otherwise necessary in respect of the maintenance, preparation and repair of machinery for hire

Yes / No

4. An indefinite number of work stoppages of 4 hours?

Yes / No

5. An indefinite number of work stoppages of 8 hours?

Yes / No

6. An indefinite number of work stoppages of 12 hours?

Yes / No

7. An indefinite number of work stoppages of 24 hours?

Yes / No

8. Indefinite bans on work related to specific events and/or particular customers?

Yes / No”

These questions are structured and premised on the same terms as the questions that are now before me.

In respect of these questions, His Honour concluded as follows:

“The amendments made by the AMWU are in response to submissions of the employer regarding these matters. The AMWU does not concede the necessity for the changes but agrees to make the changes to avoid complicating the approval of its application. To some extent the amendments are a complete answer to the objections of the employer. Objections remain however, particularly as to the wording of the question and certain forms of proposed industrial action.

In my view the amendments to the specification of the groups of employees to be balloted and the questions to be put satisfy the requirement that the application and questions are expressed in a sufficiently clear manner to enable employees who will be voting in the ballot to make an informed choice on the nature of the action they are being asked to approve and its general implications.

Not all details of the action are particularised. However in my view the generic descriptions are clear. Employees who vote on these questions will understand the general nature of the industrial action they are asked to approve. If action falling within the descriptions is subsequently proposed to be taken it will need to be notified to the employer in sufficiently clear terms. Union members who are covered by the ballot would have no legitimate grounds for surprise at the specific instances of action falling within these descriptions.”” 4

[13] There were no salient submissions that an employee would not be able to understand the possible outcomes of answering “yes” to a question. I find the questions proposed to be put to the employees are in the terms of ordinary industrial english and are expressed clearly enough to enable employees to make an informed choice regarding the type of action they might sanction, and as to whether they would agree to this action being taken separately, concurrently or consecutively with the action as expressed.

[14] Mr Herbert was asked if the questions were ambiguous as he suggested, how could they be amended? Whilst not exhaustive, proposals were put to him and it seems alternative contructions would make the set of questions much longer and actually confusing in contrast to the current questions.

[15] The questions as framed in the application allow employees to make an informed choice. The form of these questions is distinct from that as addressed by Vice President Watson in NUW v FreshExchange Pty Ltd 5, where the authorisation was in response to a question that included 12 types of industrial action, and accordingly he did not consider the question was expressed in sufficiently clear terms. Whereas in AMWU v Coates Hire Operations Pty Ltd the Vice President considered the same preamble to the questions of industrial action as are currently sought. Vice President Watson confirmed that “the questions were expressed in a sufficiently clear manner to enable employees to make an informed choice on the nature of the action they were being asked to approve and its general implications.”6

[16] He agreed that whilst not all of the details of the action were particularised, that the “employees who vote on these questions will understand the general nature of the industrial action they are asked to approve.” 7 This composite form of the questions would not cause employees to be surprised at the “specific instances of action falling with these descriptions.”8 There was nothing in the evidence before me to demonstrate that the employees would not comprehend the questions; that would justify departing from the reasoning as referred to.

Genuinely trying to reach agreement

[17] The second issue referred to was whether the AWU had been genuinely trying to reach agreement, as required by s.443(1)(b). The argument was progressed in like terms as before Senior Deputy President Richards where it was addressed as follows:

“Mr Herbert contended that the AMWU was seeking at all times to include in the agreement all the terms of the Metal Engineering and Associated Industries Award 1998 (“the Award”), such that they operate as terms of the agreement.

Mr Herbert argued that such a course of action, in effect, was inimical to enterprise level bargaining, derivative of pattern bargaining (or was a species there of or else contained the vice inherent in pattern bargaining), established a large number of provisions irrelevant to the enterprise, and was indicative of not genuinely trying to reach agreement.” 9

[18] Mr Chambers of the AWU provided evidence on this issue and he conceded that the membership was seeking the incorporation of the whole Award and that some clauses maybe irrelevant to this worksite. However Mr Broanda clarified that the employees were simply seeking to roll-over the current agreement that included the whole Award.

[19] Mr Herbert argued that the AWU was engaging in pattern bargaining within the terms of s.412(1). Section 412 (1)-(5) states as follows:

412 Pattern bargaining

Pattern bargaining

(1) A course of conduct by a person is pattern bargaining if:

(a) the person is a bargaining representative for 2 or more proposed enterprise agreements; and

(b) the course of conduct involves seeking common terms to be included in 2 or more of the agreements; and

(c) the course of conduct relates to 2 or more employers.

Exception—genuinely trying to reach an agreement

(2) The course of conduct, to the extent that it relates to a particular employer, is not pattern bargaining if the bargaining representative is genuinely trying to reach an agreement with that employer.

(3) For the purposes of subsection (2), the factors relevant to working out whether a bargaining representative is genuinely trying to reach an agreement with a particular employer, include the following:

(a) whether the bargaining representative is demonstrating a preparedness to bargain for the agreement taking into account the individual circumstances of that employer, including in relation to the nominal expiry date of the agreement;

(b) whether the bargaining representative is bargaining in a manner consistent with the terms of the agreement being determined as far as possible by agreement between that employer and its employees;

(c) whether the bargaining representative is meeting the good faith bargaining requirements.

(4) If a person seeks to rely on subsection (2), the person has the burden of proving that the subsection applies.

Genuinely trying to reach an agreement

(5) This section does not affect, and is not affected by, the meaning of the expression “genuinely trying to reach an agreement”, or any variant of the expression, as used elsewhere in this Act.

[20] Two witness statements were tendered at the commencement of the hearing; that of Mr Chambers of the AWU and Mr Stephen Patten, Employee Relations Manager Northern Region, John Holland Group Pty Ltd. Both witnesses were cross-examined. There was no evidence before me that the Applicant was engaged in pattern bargaining against the requirements of s.412(1). Mr Herbert argued that the approach by the Union to seek the inclusion of the whole award in the proposed agreement contravened s.412(3)(a), in that given the irrelevant provisions in the Award they were not taking into account “the individual circumstances of the employer” and therefore not genuinely trying to reach Agreement.

[21] However as per s.412(4) the employer has the burden of proof to demonstrate that pattern bargaining is applicable, such has not been discharged against s.412(1). Given that the definition of pattern bargaining in s.412(1)(a) is not met, the employer is unable to rely on s.412(3)(a). Furthermore s.412(5) specifies that this provision does not affect the test in regard to ‘genuinely trying to reach agreement’ elsewhere in the Act.

[22] Pursuant to s.443(1)(b) of the Act prior to issuing an order FWA must be “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”. This is to be determined by examining the circumstances of each case. The embodiment of all Award terms in the agreement does not negate the negotiations. In fact the parties had previously reached agreement on similar terms. I agree with SDP Richards assessment of this same situation in his matter that:

“The course of conduct in which the AMWU and its members are involved was and remains an effort to embody the Award in the agreement. Arguably, from the Employer’s point of view, because they represent industry standards, the Award provisions may well have marginal utility in relation to enterprise level needs.

But be that as it may, while the Employer will perceive the incorporation of the Award as a sub optimal outcome to agreement making, the conduct of the AMWU and its members is not pattern bargaining, nor is it evidence of the AMWU not genuinely trying to reach an agreement (on the terms it had in the past). I add that there was no submission that the inclusion of the Award, or any of its terms, in the Agreement is not otherwise non-allowable for the Act’s purposes.

Further, given the history of this matter in relation to previous agreements, just because there is an impasse on the issue of incorporation, and one side or the other has failed to make a concession to this point, I see no reason (on what is before me) to conclude the AMWU is not genuinely trying to reach an agreement.” 10

[23] There was also evidence before me that negotiations had been occurring and that an impasse had been reached on the issue of the Award terms; however such does not mean the parties are not genuinely trying to reach Agreement, particularly in the circumstances where the submissions relied on s.412 and allegations of pattern bargaining.

[24] The assessment of whether the parties were genuinely trying to reach agreement involves a finding of facts on the circumstances. Mr Herbert’s submissions on the objection that the Union had not been generally trying to reach agreement were based on the actions of the Union seeking to include all of the Award in the proposed agreement. Whilst Mr Patten’s witness statements addressed the nature of the negotiations to date, Mr Herbert did not progress other deficiencies in the conduct of the negotiations as the basis for the objection. Mr Chambers stated the AWU’s members wanted the inclusion of the whole award as reflected in their current agreement. The insistence on the incorporation of the Award may represent a hard-line position in the bargaining, but it does not represent pattern bargaining on the current facts or in the circumstances support the assertion that the AWU is not genuinely trying to reach agreement.

Conclusion

[25] Accordingly I will issue the order for a protected action ballot which appears at PR989793.

COMMISSIONER

Appearances:

Mr D Broanda for the Australian Workers Union

Mr A Herbert, counsel, for John Holland Pty Ltd

Hearing details:

2009.

Brisbane:

8 October

 1   Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v John Holland Pty Ltd, PR989657, Richards SDP, 2 October 2009.

 2  PR989068, Watson VP, 7 September 2009.

 3  PR989166, Watson VP, 10 September 2009.

 4  PR989657, Richards SDP, 2 October 2009 at 12-17.

 5  PR989068, Watson VP, 7 September 2009.

 6   Ibid at [7].

 7   Ibid.

 8   Ibid at 8.

 9  PR989657, Richards SDP, 2 October 2009 at 20 to 21.

 10   Ibid at 24-26.

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