Transport Workers’ Union of Australia

[2013] FWC 9744

[2013] FWC 9744

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
(B2013/1545)

COMMISSIONER GREGORY MELBOURNE, 11 DECEMBER 2013

Application by TWU for protected action ballot of employees of Zip Airport Services Pty Ltd.

[1] The Transport Workers’ Union of Australia (TWU) has made application for a protected action ballot order in respect of its members employed by ZIP Airport Services Pty Ltd at Melbourne Airport. The employees are primarily involved in aircraft refuelling operations at the Airport.

[2] The application was heard by the Commission on 10 December 2013. Various approaches were explored in those proceedings as to whether agreement could be reached in terms of how the application was dealt with. However, ultimately an agreed outcome could not be reached. The TWU indicated it now sought an order in the terms proposed and I indicated in response I intended to grant the application, subject to one further consideration.

[3] ZIP Airport Services objects to the proposed wording of the second question to be put in the proposed ballot which is in the following terms:

“2. Work Bans – employees will refuse to perform part of the usual work duties.”

[4] It submits this does not provide enough detail for it to know what form the bans will take. The TWU indicated in response it was prepared to enter into discussions to see whether agreement could be reached on this issue. I accordingly indicated I would defer a decision until 12 noon the following day to enable those discussions between the parties to take place. In the event an agreed position was reached the details of that agreement were to be communicated to me. If no agreement was reached I asked the parties to provide me with their respective views about the form of question 2 and I would determine the matter.

[5] I have since been advised that agreement was not able to be reached. The TWU has indicated in response it now proposes the second question be put in the following terms:

“2. Work bans – employees will refuse to perform part of their usual work duties. Employees will maintain aircraft safety at all times and perform their aircraft refuelling duties in accordance with standard operating procedures.” 1

[6] It submits work bans are a legitimate part of protected industrial action and similar questions have been approved by the Commission in other protected action ballot applications.

[7] ZIP Airport Services submits in response that the proposed wording is inappropriate and should not be included in any order. In its submission the Fair Work Act 2009 intends:

“...the nature of any such action to be voted on by employees or faced by employers should be sufficiently clear.” 2

[8] In its submission the proposed wording is too vague and leaves it to the judgement of the employees as to whether and how aircraft safety is to be maintained. In its submission this is inappropriate, both from the perspective of the employees who are being asked to vote on the proposed questions and for ZIP Airport Services who may be confronted by subsequent industrial action. In its submission question 2 should be deleted in its entirety.

[9] Issues to do with the form of a question(s) to be put in a protected action ballot have been considered in a number of decisions of this Commission and it predecessors. The recent Full Bench decision in John Holland Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 3 dealt with several grounds of appeal, including that the application was not a valid one because the question to be put was ambiguous and did not adequately specify the nature of the industrial action for which endorsement of the employees was sought.

[10] In dealing with the issue the Full Bench noted, firstly, an application under s.437 is only the first step in a process leading to the possible initiation of protected industrial action. It referred to other relevant sections of the Act, including sections 409, 413 and 414. The Full Bench then stated at paragraph 16 of the decision:

“We draw attention in particular to the requirement for notice in ss.414(1) and (6). If the action specified in the notice is not authorised by the relevant ballot, any action taken pursuant to the notice will not be protected industrial action. For this reason there will be a natural tendency for bargaining representatives to frame ballot questions in a way which minimises the possibility that the industrial action eventually taken will fall outside the action authorised by the ballot. If the ballot questions describe industrial action in a general way it might subsequently be held that specific types of industrial action were not authorised. No doubt, for that reason, a number of bargaining representatives have drafted ballot applications containing very detailed questions.” 4

[11] The Full Bench then examined the intent of s.437 and stated at paragraph 19:

“Moving now to the construction of s.437 itself, seen in its statutory context, all that the section requires is that the questions should describe the industrial action in such a way that employees are capable of responding to them. If the questions are ambiguous or lack clarity there may be consequences for the bargaining representative and the employees if reliance is placed on the result of the ballot in taking industrial action. If the question or questions give rise to ambiguity, the conclusion may be reached that the industrial action specified in a notice under s.414 was not authorised by the ballot and that the action is not protected for the purposes of s.409(2). It is true that ambiguity or lack of clarity in the description of the industrial action is undesirable, but these are matters more appropriate for consideration under other provisions. It follows that in most cases the drafting of the questions will be a matter for the applicant.” 5

[12] The decision in John Holland was followed more recently by Deputy President Smith in Australian Education Union v The State of Victoria (Department of Education and Early Childhood Development) 6 in a matter that involved a different form of question. It proposed a variety of forms of proposed action described in a single sentence followed by a single “Yes/No” answer as follows:

“In support of reaching an enterprise agreement, do you endorse taking protected industrial action in the form of an unlimited number of State wide or Regional or Sub Branch stoppages of work of 1 to 24 hours in duration or bans or limitations on the manner in which work is undertaken?” 7

[13] Deputy President Smith indicated at paragraph 13 of the decision:

“I do not doubt that the phrase bans or limitations on the manner in which work is undertaken would be well understood by teachers. Indeed, such language is very similar to that used by the Act (s.19) which provides the gateway for other action to be taken by the employer. These are experienced industrial parties and this path, upon which they are about to embark, is not novel.” 8

[14] Deputy President Smith continued to indicate that the appropriate course was to follow the decision in John Holland. I am also satisfied, based on these authorities that in most cases the nature of the question or questions in a protected ballot application will be a matter for the Applicant’s to determine, provided the plain meaning of the words is able to be understood. The open ended reference to “...bans or limitations on the manner in which work is undertaken” in the question approved by Deputy President Smith is similar to the open ended reference to “Work Bans - employees will refuse to perform part of their usual work duties” in the TWU’s proposed question 2, and I am also satisfied employees will understand what this intends. In addition, given the requirements about notice of any action in s.414 of the Act if subsequent action specified in a notice is not authorised by the ballot it would be open to the employer to make application, in response, that the action is not protected industrial action.

[15] Section 443 of the Fair Work Act 2009 provides that I must make an order if an application has been made under section 437 and the Commission is satisfied the Applicant is genuinely trying to reach agreement. I am satisfied that the TWU is a bargaining representative of employees sought to be covered by the proposed agreement. I am also satisfied based, in part, on my own involvement in chairing negotiations between the parties that the TWU is genuinely trying to reach agreement. The application also specifies the group of employees to be balloted and the questions to be put, including the nature of the proposed action. I am also satisfied that section 440 of the Act has been satisfied.

[16] I accordingly propose to make an order in the terms sought by the TWU, including the revised wording of question 2 provided to the Commission by email by the TWU on 11 December 2013. That order will be issued in conjunction with this decision.

Appearances:

J Parker on behalf of the Transport Workers’ Union of Australia.

R Bunting of Ashurst on behalf of Zip Airport Services Pty Ltd.

Hearing details:

2013.

Melbourne:

10 December.

 1   Email from John Parker to Commissioner Gregory, 11 December 2013, 1.

 2   Email from Richard Bunting to Commissioner Gregory, 11 December 2013, 1.

 3   [2010] FWAFB 526

 4   Ibid at [16]

 5   Ibid at [19]

 6   [2012] FWA 3729

 7   Ibid at [3]

 8   Ibid at [13]

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