Transport Workers' Union of Australia v Clark's Logan City Bus Services (Qld) Pty Ltd
[2023] FWC 1721
•17 JULY 2023
| [2023] FWC 1721 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Transport Workers' Union of Australia
v
Clark's Logan City Bus Services (Qld) Pty Ltd
(B2023/710)
| DEPUTY PRESIDENT HAMPTON | ADELAIDE, 17 JULY 2023 |
Proposed protected action ballot of employees of Clark's Logan City Bus Services (Qld) Pty Ltd
This is an application by the Transport Workers' Union of Australia (TWU) made under s.437 of the Fair Work Act 2009 (FW Act) for a protected action ballot order in relation to certain employees of the Respondent, Clark's Logan City Bus Services (Qld) Pty Ltd (Clark’s Logan City Bus or Respondent).
On 14 July 2023, the Commission was advised that the Respondent objected to the Application on a number of grounds. These included that some of the questions proposed to be put to the relevant employees did not constitute industrial action within the meaning of s.19 of the FW Act. Further, the Respondent opposed a number of elements of the proposed Order that would require it to provide employee information to the eligible protected action ballot agent.
In the circumstances, I have conducted a hearing to deal with these matters and the application more generally. Having heard the parties, I subsequently issued the PABO, largely in the terms as sought by the TWU.
On the basis of the material before me, including the declaration of Mr James Wilkinson, TWU Organiser, setting out the steps taken by the TWU in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with Clark’s Logan City Bus, I was satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the FW Act have been met. These aspects were not in dispute.
As to the dispute associated with the form of action proposed to be put to the employees, the Respondent objected to 2 of the questions, as follows:
“7.A ban on the performance of work unless wearing badges and/or hats and/or face masks with TWU branding and or TWU EBA campaign messages and or High Visibility clothing instead of, or in addition to the employer's uniform either periodically or indefinitely?
Yes [ ] No [ ]
……
9.A ban on the performance of work unless handing out TWU Campaign materials to passengers boarding and/or disembarking buses and/or awaiting services?
Yes [ ] No [ ]”
Section 437(3) of the FW Act relevantly requires that the following matter be specified in the application (and the Order):
437 Application for a protected action ballot order
…
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; and
(c)the name of the person or entity that the applicant wishes to be the protected action ballot agent for the protected action ballot.
Note: The protected action ballot agent for the ballot must be an eligible protected action ballot agent unless there are exceptional circumstances: see section 444.
Section 19 of the Act defines industrial action as follows:
19 Meaning of industrial action
(1) Industrial action means action of any of the following kinds:
(a)the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b)a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c)a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d)the lockout of employees from their employment by the employer of the employees.
Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.
(2) However, industrial action does not include the following:
(a)action by employees that is authorised or agreed to by the employer of the employees;
(b)action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;
(c) action by an employee if:
(i)the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and
(ii)the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.
Note: In this section, employee and employer have their ordinary meanings (see section 11).
The Full Bench in Mornington Peninsula Shire Council v Australian Municipal, Administrative, Clerical and Services Union[1] (Mornington Peninsula) described the present task in the following manner:
“[48]It will be apparent from our consideration of the ASU’s appeal below, that we agree. We also respectfully agree with the construction of s.19(1)(a) and (b) of the FW Act by Ross J in Easy which was as follows:
153. The first element of s 19(1)(a) is that the performance of work by the employee must be in a manner different from that in which it is customarily performed. The second element, which is an alternative to the first, is that there must be the adoption of a practice in relation to the work. In both instances, the action must result in a restriction or limitation on, or a delay in, the performance of the work.
154. In the context of this case, I do not consider that the wearing of campaign clothing falls within either limb of the definition of industrial action in s 19(1)(a) of the Act. Wearing particular clothing whilst performing work has nothing to do with the manner in which the work is performed. There is no evidence that MFB non-operational staff were required to wear a particular uniform, nor is there any evidence of a policy proscribing the wearing of union t-shirts. There may conceivably be situations where particular work can only be performed whilst wearing certain clothing and the refusal to wear that clothing could affect the manner in which the work is performed and result in a restriction or limitation on, or a delay in, the performance of the work. But this is not such a case. Thus Ms Antonakis’ wearing of the UFU t-shirt did not fall within s 19(1)(a) of the definition of ‘industrial action’.
155. Under s 19(1)(b) there must be a ban, limitation or restriction on the performance of work by the employee engaging in the conduct or on the acceptance of or offering of work by the employee.
156. The meaning of the expression ‘a ban, limitation or restriction on the performance of work ... or on acceptance of or offering for work’, was considered by the Full Court in Davids Distribution Pty Ltd v National Union of Workers, albeit in a different statutory context (i.e. the definition of ‘industrial action’ in s 4(1)(c) of the Workplace Relations Act 1996 (Cth)). In their judgment, with which Burchett J relevantly agreed, Wilcox and Cooper JJ adopted the tentative view expressed by the Full Court in Construction, Forestry, Mining and Energy Union and Ors v Giudice and Ors and said:
‘... we think the paragraph [s.4(1)(c)] ought to be read as applying only to limitations on the work of those imposing the ban.’
157. If an employee is only prepared to perform work if they are wearing a particular item of clothing then they are placing a limitation or restriction on the performance of work or on the acceptance or offering for work. But that is not this case.
[49] Turning then to the action described in 9 and 10 of the question, we consider that neither describes action that is capable of being a, ban, limitation or restriction on the performance of work by an employee”. Similarly, a ban on the wearing of a uniform or a name badge, in and of itself does not amount to a “ban, limitation or restriction on … the acceptance of or offering for work by an employee.” Though this might be the consequence in some circumstances, the ban on the wearing of the particular items of clothing in and of itself does not describe “the nature of the proposed industrial action”. The industrial action that might follow, namely a ban, limitation or restriction on the acceptance of or offering for work in uniform or while wearing a name badge, must in our view be described in the action for which authorisation through the ballot is sought. It should not be left to inference.
[50] Thus, as Ross J reasoned in Easy, if an employee is only prepared to perform work if they are wearing a particular item of clothing then the employee is placing a limitation or restriction on the performance of work on the acceptance or offering for work. But that action must form part of the description of the nature of the proposed industrial action contained in the question to be put to employees in the ballot. The action described in 9 and 10 of the question does not do so. To the extent that the Commissioner concluded at of her decision to the contrary, she was in our opinion in error. To the extent that the majority in ANF v Mornington could be said to have concluded that wearing of campaign clothing will at work be a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for the work by the employee for the purposes of s.19(1)(b), without more, then we respectfully disagree.”
Footnotes omitted.
The reference to Easy is to the Decision[2] of Ross J, sitting as a member of the Federal Court of Australia.
The Full Bench in Mornington Peninsula had earlier confirmed that the statutory approach required the Commission to find that the questions concern action that at least has the potential to be industrial action if taken by all or some of the groups of employees to be balloted.[3]
In respect of the 2 disputed questions here, I consider that the question in each case describes action that has the potential to be industrial action if taken by all or some of the groups of employees to be balloted. Each question involves a ban on the (normal) performance of work unless certain other (different) activities are also performed. This is the precisely the form of question that the Full Bench in Mornington Peninsula suggested[4] differentiated potential industrial action. Indeed, Mr MacDonald for the Respondent confirmed that the proposed questions would involve the performance of work other than (different from) that as normally required. In each case, normal work performance would be delayed, restricted or banned.
To the extent that the Respondent relied upon the note in s.19 of the FW Act and its reference to Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, there was no proper suggestion here that the proposed action did not fall within the scope of disputation and bargaining and the performance of work. Indeed, the substantive concerns expressed on behalf of the Respondent was that the proposed action would interfere with the ordinary and safe performance of work. In that regard, any question of safety arising from industrial action is a matter to be potentially addressed in the context of any actual endorsed and notified industrial action and the remedies that may be available to the Respondent in that respect.
The ballot is to be conducted by the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has recently been approved as an eligible protected action ballot agent under s 468A of the Act[5] and consequently is authorised to conduct the ballot. The scheme of the Act[6] is now that where named in the PABO application and proposed orders, the Commission will, subject to the Act, be obliged to, in effect, appoint that eligible protected action ballot agent to conduct the ballot concerned.
As to the employee information required by the Order, the Respondent opposed that part of the proposed Order that would require to it to provide to the eligible protected action ballot agent employee information concerning the employees that would be covered by the proposed enterprise agreement. The objection was based upon 3 grounds.
Firstly, that the provision of the information would be in breach of the relevant privacy legislation and principles. Secondly, that the information required was not information about the group of employees to be balloted as this would also include the names and details of employees that were not members of the TWU. Thirdly, that it would not be reasonable to require the “private” information to be provided.
Section 450 of the FW Act is directly relevant and provides:
450 Directions for conduct of protected action ballot
(1)This section applies if the protected action ballot agent is not the Australian Electoral Commission.
(2)The FWC must give the protected action ballot agent written directions in relation to the following matters relating to the protected action ballot:
(a) the development of a timetable;
(b)the voting method, or methods, to be used (which cannot be a method involving a show of hands);
(c) the compilation of the roll of voters;
(d) the addition of names to, or removal of names from, the roll of voters;
(e)any other matter in relation to the conduct of the ballot that the FWC considers appropriate.
Note 1: For the purposes of paragraph (2)(b), examples of voting methods are attendance voting, electronic voting and postal voting.
Note 2: A protected action ballot agent must not contravene a term of a direction given by the FWC in relation to a protected action ballot (see subsection 463(2)).
(3)A direction given under subsection (2) may require the protected action ballot agent to comply with a provision of this Subdivision (other than subsection 454(5)) in relation to a particular matter.
Note: Subsection 454(5) provides for the Australian Electoral Commission to vary the roll of voters on its own initiative.
(4) To enable the roll of voters to be compiled, the FWC may direct, in writing, either or both of the following:
(a) the employer of the employees who are to be balloted;
(b) the applicant for the protected action ballot order;
to give to the FWC or the protected action ballot agent:
(c)the names of the employees included in the group or groups of employees specified in the protected action ballot order; and
(d)any other information that it is reasonable for the FWC or the protected action ballot agent to require to assist in compiling the roll of voters.
Section 452 to 454 of the FW Act also provides some broader context (noting that in this case Directions principally under s.450 to the ballot agent have been made) as follows:
452 Compilation of roll of voters
(1) This section applies if:
(a)the protected action ballot agent is the Australian Electoral Commission; or
(b)the FWC has directed the protected action ballot agent to comply with this section.
Note: If this section does not apply, the protected action ballot agent must comply with directions given by the FWC in relation to the matters dealt with by this section (see section 450).
(2)As soon as practicable after receiving a copy of the protected action ballot order, the protected action ballot agent must compile the roll of voters for the protected action ballot.
(3)For the purpose of compiling the roll of voters, the protected action ballot agent may direct, in writing, the employer of the employees who are to be balloted, or the applicant for the order (or both), to give to the ballot agent:
(a)the names of the employees included in the group or groups of employees specified in the protected action ballot order; and
(b)any other information that it is reasonable for the protected action ballot agent to require to assist in compiling the roll of voters.
453 Who is eligible to be included on the roll of voters
An employee is eligible to be included on the roll of voters for the protected action ballot only if:
(a)the employee will be covered by the proposed enterprise agreement to which the ballot relates; and
(b)the employee is included in a group of employees specified in the order and either:
(i)is represented by a bargaining representative who was an applicant for the order; or
(ii)is the bargaining representative for himself or herself but is a member of an employee organisation that was an applicant for the order.
454 Variation of roll of voters
Variation by protected action ballot agent on request
(1) Subsections (2) to (4) apply if:
(a)the protected action ballot agent is the Australian Electoral Commission; or
(b)the FWC has directed the protected action ballot agent to comply with those subsections.
Note: If subsections (2) to (4) do not apply, the protected action ballot agent must comply with directions given by the FWC in relation to the matters dealt with by those subsections (see section 450).
Adding names to the roll of voters
(2)The protected action ballot agent must include an employee’s name on the roll of voters for the protected action ballot if:
(a) the protected action ballot agent is requested to do so by:
(i) an applicant for the protected action ballot order; or
(ii) the employee; or
(iii) the employee’s employer; and
(b)the protected action ballot agent is satisfied that the employee is eligible to be included on the roll of voters; and
(c)the request is made before the end of the working day before the day on which voting in the ballot starts.
Removing names from the roll of voters
(3)The protected action ballot agent must remove an employee’s name from the roll of voters for the protected action ballot if:
(a) the protected action ballot agent is requested to do so by:
(i)an applicant for the protected action ballot order; or
(ii) the employee; or
(iii) the employee’s employer; and
(b)the protected action ballot agent is satisfied that the employee is not eligible to be included on the roll of voters; and
(c)the request is made before the end of the working day before the day on which voting in the ballot starts.
(4)The protected action ballot agent must remove a person’s name from the roll of voters for the protected action ballot if:
(a)the person (the former employee) is no longer employed by the employer (the former employer) of the employees who are to be balloted; and
(b)the protected action ballot agent is requested to do so by:
(i) an applicant for the protected action ballot order; or
(ii) the former employee; or
(iii) the former employer; and
(c)the request is made before the end of the working day before the day on which voting in the ballot starts.
Variation by Australian Electoral Commission on its own initiative
(5)If the protected action ballot agent is the Australian Electoral Commission, the Commission may, on its own initiative and before the end of the working day before the day on which voting in the ballot starts:
(a)include an employee’s name on the roll of voters for the protected action ballot if the Commission is satisfied that the employee is eligible to be included on the roll of voters; or
(b)remove an employee’s name from the roll of voters for the protected action ballot if the Commission is satisfied that the employee is not eligible to be included on the roll of voters; or
(c)remove a person’s name from the roll of voters for the protected action ballot if the person is no longer employed by the employer of the employees who are to be balloted.
The TWU sought that the normal employee information be provided by both parties. However, in light of the concession made by the Respondent about the validity of the information that would be provided by the TWU and that it (the Respondent) was not seeking that this be verified by reference to its own information, the TWU indicated that it would not necessarily press for the full normal orders.
The identifying information from both parties is normally required for the eligible protected action ballot agent to properly conduct the ballot. That is, to enable it to compile a proper and auditable list of eligible voters. In the normal course, although the information provided by the employer may provide information beyond the group of employees to be balloted (some employees for whom the applicant TWU is not the bargaining representative) that information would reasonably be required to enable the eligible voters list to be independently assessed and confirmed by the ballot agent. The Act and the regulations contemplate the Commission issuing directions of this kind and I consider that the terms of the order in this respect are unremarkable and in general terms appropriate.
In terms of the Privacy Act 1988 (Cth) (Privacy Act) and the Australian Privacy Principles (principles), these permit[7] the use or disclose personal information for another purpose (a secondary purpose) in specified circumstances, including where that use or disclosure is required or authorised by or under an Australian law, such as the FW Act, or otherwise required or authorised by a court/tribunal order.
I have carefully considered whether, in light of the somewhat uncommon concession made by the Respondent, the eligible protected action ballot agent could reasonably rely upon just the employee information being provided by the TWU. Section 450(4) of the FW Act does on face value provide that either the applicant or the employer, or both, may provide the required information. However, given the importance of the ballot and the potential legal and industrial consequences for those involved, and the need to ensure that the integrity of a Commission endorsed ballot process is maintained, including by providing a proper reference point against which the eligible protected action ballot agent can resolve any subsequent request for changes[8] to the eligible voter list, I consider on balance that the normal terms of the Order are reasonably required.[9] There is a strong public interest in maintaining the integrity and robust nature of these ballots.
In reaching that view I am also concerned that if the eligible protected action ballot agent sought additional employee contact or other information that only the employer could provide or verify, it may not, at least directly, be able to subsequently apply to have the PABO varied.[10] The fact that the ballot will be conducted electronically, using email addresses that might well need to be provided or at least confirmed by the employer, is particularly important in this respect. I would also observe that the potential “détente” about the provision of the employee information and related actions of the parties associated with this matter barely lasted the duration of the hearing, and this did not bode well for the entirety of the ballot period or a non-controversial ballot.
I emphasise that the employee information required of the employer by the Order will be provided to the eligible protected action ballot agent and not to the TWU. The information provided by the TWU will also only be provided to the Agent. The Agent is itself bound by the Privacy Act and principles and has been approved by the Commission on the basis of the integrity and independence of its systems and the fit and proper nature of those individuals who will conduct the ballot.[11] See also the strict obligations upon the eligible protected action ballot agent in terms of the disclosure of certain information.[12]
For the purposes of s.443(3)(c) and s.448A(2) of the FW Act, a ballot period of 10 working days[13] from the date of the Order (17 July 2023) has been approved by the Commission. This gives effect to the statutory objective that the ballot be conducted expeditiously,[14] noting the obligations that now exist for the Commission to conduct the s.448A compulsory conciliation conference involving all bargaining representatives involved in negotiating for the proposed enterprise agreement during that period. In this case, there are other bargaining representatives, and the Commission will seek to provide reasonable notice of the conference to all of those concerned.
An order has been separately issued in PR764243.
This matter will be assigned to another Member of the Commission to conduct the s.448A conference and this Member will issue the Order requiring attendance at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.
DEPUTY PRESIDENT
Appearances:
H Dalton-Bridges with J Wilkinson for the Transport Workers’ Union of Australia.
I MacDonald of the Australian Public Transport Industrial Association with K Lewis and J Muir for Clark’s Logan City Bus Services Pty Ltd.
Hearing details:
Adelaide (by video)
2023
July 17
[1] [2017] FWCFB 4740.
[2] United Firefighters’ Union of Australia\ v Easy [2013] FCA 763.
[3] [2017] FWCFB 4740 at [46].
[4] Ibid at [49] and [50].
[5] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400.
[6] Including s.444 of the FW Act.
[7] Privacy Act Sch 1, Part 3. APP 6.2(b).
[8] Such as under s.454 of the FW Act.
[9] Section 452(3) of the FW Act.
[10] Section 447 of the FW Act appears to only contemplate that the protected action ballot agent applying to varying the Order with respect to the ballot period.
[11] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400.
[12] For example s.467 of the FW Act.
[13] See the definition of working days in s.12 of the FW Act – does not include weekends or public holidays.
[14] Section 449 of the FW Act.
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