The Australian Workers' Union v Mount Buller Ski & Snowboard School

[2015] FWC 5975

[2015] FWC 5975

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Mount Buller Ski & Snowboard School
(B2015/1182)

COMMISSIONER LEE MELBOURNE, 1 SEPTEMBER 2015

Application for a protected action ballot of employees of Mount Buller Ski & Snowboard School.

[1] This matter involves an application by The Australian Workers’ Union (the Applicant) for a protected action ballot order in relation to certain employees of Mount Buller Ski and Snowboard School (the Respondent), pursuant to section 437 of the Fair Work Act 2009 (the Act).

[2] Section 443(1) of the Act states:

“(1) The FWC 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) the FWC 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) The FWC 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.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC 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 the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC 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 a 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.”

[3] This matter was initially before Commissioner Gregory. The Commissioner listed the matter for hearing together with an application to vary the existing agreement pursuant to section 217 of the Act that applies to the Mount Buller Ski and Snowboard School (matter AG2015/4610).

[4] On the face of the file, it appears the Commissioner commenced the hearing in conference. After some discussion, the Commissioner canvassed a further conference with the agreement of the parties. That further conference was not ultimately listed, as the Commissioner had, during the initial conference, disclosed to the parties of a potential conflict of interest regarding the related matter AG2015/4610. The Applicant considered the disclosure of the Commissioner and by email dated 18 August 2015, sought that the related matter be re-allocated. It was determined then that both matters would be allocated to me.

[5] I listed both matters for conference before me on 26 August consistent with the apparent agreement reached before Commissioner Gregory.

[6] During the conference held on 26 August 2015, the Applicant filed a Form F50 in respect of the related matter (matter AG2015/4610), discontinuing that application. The Respondent indicated that it objected to this protected action ballot order application and sought to be heard. The parties, in conference, agreed to the following directions for the filing of materials in the matter as follows;

1. The Respondent was to file and serve an outline of submissions and affidavit of Mr Blampied by close of business 27 August 2015; and

2. The Applicant was to advise if they wished to exercise a right of reply to the materials filed, by 10:00am 28 August 2015; and

3. If the Applicant advised that they wished to exercise a right of reply, they were to do so by 5:00pm 28 August 2015.

[7] The Respondent complied with the directions issued and filed written submissions and witness statement of Mr Blampied.

[8] The Applicant did not advise me that they wished to exercise a right of reply.

[9] Consistent with the agreement reached in conference I have determined to deal with the matter on the papers.

[10] The Applicant has lodged a statutory declaration of Mr Kim Shepherd, Organiser with the Australian Workers Union, addressing the requirements of the Act.

[11] The Respondent objects to the application being granted on the following grounds:

“1. The AWU is not genuinely trying to reach an agreement with the employer in that key aspects of its agreement claims:

a) are fanciful in the context of the Ski industry; and/or

b) do not involve “permitted matters” and/or

c) are mere precursors to an industry wide claim being pursued as part of the 4 Yearly Review of modern awards.

2. The proposed orders sought by the AWU do not provide employees with the opportunity to make an informed ballot choice – indeed the orders are misleading in relation to the workplace rights of the relevant employees in that the proposed action derives no relevant protection or immunity from suit. In this context, the orders sought would operate in breach of the General Protections provisions of the Act and must be declined by the Commission as a matter of both jurisdiction and discretion.

3. The proposed orders sought by the AWU do not relate to “industrial action” within the meaning of the Act.” 1

[12] The Respondent placed reliance upon the evidence of Mr. Blampied, the information contained in the Applicant’s application and the Applicant’s related matter (AG2015/4610).

Is the AWU genuinely trying to reach an agreement?

[13] In dealing with this matter, I have had regard to the recent decision Esso Australia Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and others 2 where the Full Bench observed that the object of Division 8 of Part 3-3 and scheme of the Act reflects the legislative intention that applications for protected action ballot orders be heard and determined quickly and in that context I have had regard to their rejection of a construction of section 443(1)(b) that it would require the Commission to scrutinise each of the claims advanced by an Applicant to determine whether they are about permitted matters.3 Further, I note the Full Bench, on the question of whether an Applicant for a protected action ballot has been and is genuinely trying to reach an agreement with the relevant employer, outlined that this is to be determined having regard to all of the relevant facts and circumstances of a particular case.4 I will adopt that approach in this matter.

Fanciful Claims

[14] The basis for this objection is essentially that as the Applicant has pressed for a 10% pay increase and “more pertinently” the Applicant’s claim for treatment of ski instructors as “piece workers”, entitled to a guaranteed weekly payment regardless of the weather. It is said by the Respondent that these claims are massively out of line with the structure of engagement of instructors in Australia and around the world.

[15] I note that the submission of the Respondent misrepresents the actual wage claim. The log of claims shows that the claim is for 10% in the first year followed by two 3% wage increases. In effect, this is a claim of 16% over 3 years. Perhaps it is an ambitious claim but hardly fanciful.

[16] The log of claims does not refer to piece workers, but does refer to a “safety net wage” equivalent to the minimum rate in the Alpine Resorts Award 2010. Again, I do not believe this is a fanciful claim. I understand that the desire to include “piece worker” provisions was a feature of the related s.217 application (AG2015/4610) which was allocated to me and now discontinued. I note that the related matter was discontinued prior to me setting directions for the filing of materials in this matter. As that matter has been discontinued, it is does not provide a sound basis for a finding that the Applicant is not genuinely trying to reach an agreement.

[17] However, the “piece worker” claim is referred to in the email at Attachment F of Mr. Blampied’s statement. In that email, Mr. Shepherd for the Applicant presses the Respondent for a range of categories of employment to be included in an agreement; full time; part time seasonal and casual, as well as a piece work arrangement. Consistent with this, Mr. Blampied's evidence is that Mr. Shepherd, in a conversation on 24 July 2015, stated that members wanted to continue negotiations regarding the piece worker rate.

[18] A term that describes an employee as a piece worker is capable of being included in an enterprise agreement subject to the Fair Work Commission being satisfied of the requirements of s.197 of the Act. I note that the Respondent states that it will not accept the claim as it is incapable of accepting it. They may well reject the claim. The rejection of claims in bargaining is common but it does not make the claim a fanciful claim.

[19] I reject the contention that the claims of the Applicant are fanciful.

Claims do not involve permitted matters

[20] This objection also turns on the reference to the “piece worker” claim. The Respondent submits that whether ski instructors can properly be categorised as piece workers is a matter of fact and law. I agree with that proposition. The Respondent submits that as a matter of fact and law they cannot be. I am not in a position to agree or not agree to that proposition. What is clear, as already discussed, is that piece worker provisions can be included in an agreement. The Respondent rejects their inclusion. However, a term that describes an employee as a piece worker is a permitted matter.

Industry Wide 4 Yearly Review

[21] It is submitted by the Respondent that the Applicant intends to pursue its claim for a safety net/”piece worker” arrangement through the process of the 4 yearly review of modern awards and that the Applicant has no realistic expectation that any ski resort would concede those claims through enterprise bargaining.

[22] This submission is not consistent with the evidence of Mr Blampied that Mr Shepherd said that he wanted to pursue the claim with this enterprise agreement and with other resorts as well as through the award review. I am not aware of any authority for the proposition that pursuing a claim through an award variation as well as through bargaining would lead to a conclusion that the party was not genuinely bargaining.

[23] Having considered the totality of all the relevant facts and circumstances, set out in the evidence of Mr Shepherd and Mr Blampied, as well as the objections of the Respondent, for the reasons set out above, I am satisfied that the Applicant is genuinely trying to reach an agreement.

The orders sought by the AWU are misleading and do not provide employees with the opportunity to make an informed ballot choice

[24] This submission relates to the particular industrial action sought to be protected under the terms of the order. The questions to be put to members are as follows:

“In support of reaching an enterprise agreement with your employer, do you wish to organise and/or engage in separately, concurrently and/or consecutively the following protected industrial action against your employer:

a) That Australian Workers Union, delegates and organisors provide unlimited number of briefings and interviews over an unlimited duration to media and the public regarding enterprise bargaining issues.

[ ] YES [ ] No

b)_ That Australian Workers Union members, delegates and organisors distribute an unlimited number of comments, blogs, photographs, slogans and campaign materials using any or all forms of media including social media throughout the Mt Buller ski resort and the wider community for unlimited duration

[ ] YES [ ] No

c) Wear or display campaign materials and campaign clothing at work including materials and clothing displaying campaign slogans and insignia for an unlimited duration

[ ] YES [ ] No”

[25] The Respondent submits that this action will damage the brand of the organisation, that the brand of the organisation is a valuable piece of intellectual property and that the immunity provision in the Act excludes wilful damage to property and defamation. Accordingly, the Respondent asserts that all and any potential harm to the “Mt Buller brand” or the reputation of its management is completely without protection.

[26] It is further submitted that the orders sought by the Applicant constitute misleading representations. The basis for this assertion is that the Respondent submits that protection via the immunity provisions of s.415 of the Act do not exist for these questions. The Respondent asserts that the Commission would be facilitating a contravention of the Act were it to grant the orders. It is further submitted that the proposed orders do not relate to “industrial action” under the Act.

[27] There are many forms of industrial action that may well have a negative effect on a company’s reputation or brand. In this matter, there is no evidence as to the specifics of the industrial action contemplated that would allow a conclusion to be drawn that it will damage the brand or be defamatory. The claim is speculative. Nor am I aware of any authority for the proposition that a possible risk of brand damage or defamation is a matter that would prevent the Commission from issuing an order. I do not accept that this is a basis for not making the orders sought.

Orders do not relate to industrial action under the act.

[28] The Respondent submits, and I agree that an application under s.437 of the Act must seek orders in respect of action which is capable of constituting industrial action. The respondent submits that;

“The instructors at Mt Buller work on a casual basis. While instructing they are not in a position to issue media briefings, social media briefings or blogs. To the extent that these activities are undertaken in non-work time, or via AWU officials, they do not involve the performance of work in a manner different to, or a relevant ban or restriction on, the normal performance of work for purposes of s19 of the Act. Further, even during work time, the performance of additional conduct through comments or issuance of information, over and above nomal duties, is not industrial action under the Act: Ambulance Victoria v United Voice [2014] FCA 119 via Tracey J at paragraphs 18 to 25.

…

Order pursuant to s437 Applications cannot relate to action which is not “industrial action” as defined in s19 of the Act: Ambulance Victoria v United Voice [2014] FCA 119. Orders 5(a) and (b) of the Draft Orders sought by the AWU relate to action which is not “industrial action” as defined and should not be granted ” 5

[29] The Respondent conceded that the wearing of campaign clothing can in some circumstances constitute industrial action. I find no impediment to the order sought at 5(c) of the Draft Order.

[30] Commissioner Hampton canvassed the legal position on these matters in Health Services Union v Clinical Laboratories Pty Ltd T/A Healthscope Pathology 6. I refer to and adopt the Commissioners position. In that matter Commissioner Hampton concluded that the action he was considering in that case may or may not be protected action depending on who, how and when the proposed action was taken. The same applies here. The provision of information may involve an interruption to work such as it is not performed in the customary manner. Or it may not. Similarly the wearing of badges (and other things) if on a uniform may be industrial action, it may not. On balance, I find that the questions as proposed are capable of being included as part of a protected action ballot order.

Procedural Fairness

[31] At the conclusion of their written submissions, the Respondent states the following;

“Mt Buller is prepared for the evidence and submissions of both parties to be tested via hearing…Fair process in this matter arguably requires a hearing.”

[32] As discussed above, this matter was listed for conference before me on 26 August. At that conference, I discussed with the parties the programming of the matter, including canvassing with the parties holding a hearing to determine the matter. In consultation with the parties, it was agreed that directions for filing would be made and the decision made on the papers. I note in particular, that the Respondent asked for and was given time to consider their preference for how the matter would be dealt with, written submissions or by way of hearing. After taking some time to consider their options, the Respondent indicated a preference for written submissions and affidavit.

[33] Despite this agreement, I must now deal with the request of the Respondent for a hearing. This request was contained in their submissions, outlined above.

[34] Section 593 of the Act provides that the Commission is not required to hold a hearing in performing functions or exercising powers, except as provided by the Act.

[35] I have determined to deal with this matter on the papers as there is little if any contested evidence. I have accepted the evidence of Mr Blampied, contained in his witness statement. The Applicant did not seek to cross examine Mr Blampied, and indeed filed no submissions in reply to the Respondent’s materials. The evidence of Mr Blampied and Mr Shepherd on the conduct of bargaining thus far were similar in nature. I did not receive a request to cross examine Mr Shepherd.

Conclusion

[36] I am satisfied that the statutory requirements of the Act have been met. In particular, I am satisfied that the Applicant is a bargaining representative and eligible to make the application. I am satisfied that the requirements of section 443 of the Act have been met, that the Applicant has been and is genuinely trying to reach an agreement with the Respondent. The Australian Electoral Commission is to be the protected action ballot agent.

[37] The Draft Order submitted by the Applicant seeks the ballot to close no later than 14 working days from the date of the Order. The Fair Work Commission received correspondence from the Australian Electoral Commission seeking the timeframe be extended in any order issued to be 20 working days from the date of the order. This correspondence was provided to the parties by email 13 August 2015. I have considered the request of the Applicant and the views of the Australian Electoral Commission and have determined to allow the ballot to conclude no later than 20 working days from the date of the Order. I note the requirements s.449 of the Act that a protected action ballot agent must conduct the protected action ballot expeditiously.

[38] I am satisfied that the draft order meets the requirements of section 443(3) of the Act. I note however, that I have amended the form of the questions to be asked. I am not satisfied that employees are able to authorise the actions of organisers (which is referred to in the draft questions). Questions at clause 5(a) and (b) will be altered as follows;

“In support of reaching an enterprise agreement with your employer, do you wish to organise and/or engage in separately, concurrently and/or consecutively the following protected industrial action against your employer:

a) Providing unlimited number of briefings and interviews over an unlimited duration to media and the public regarding enterprise bargaining issues.

[ ] YES [ ] No

b) Distributing unlimited number of comments, blogs, photographs, slogans and campaign materials using any or all forms of media including social media throughout the Mt Buller ski resort and the wider community for unlimited duration

[ ] YES [ ] No”

[39] I confirm clause 5(c) will not be altered.

[40] As I am satisfied that the requirements of the Act have been met, pursuant to section 443 of the Act, the Order must be made. The Order [PR571404] will be issued concurrently with this decision.

COMMISSIONER

 1   Written submissions of the Employer, filed 27 August 2015, [1.1]

 2   [2015] FWCFB 210

 3   Esso Australia Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and others[2015] FWCFB 210 [63] – [64]

 4   Esso Australia Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and others[2015] FWCFB 210 [69]

 5   Written submissions of the Employer, filed 27 August 2015, [5.2] and [5.4]

 6   [2014] FWC 8809, [30] – [57]

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