Transport Workers' Union of Australia v J.J. Richards & Sons Pty Ltd
[2010] FWA 8766
•12 NOVEMBER 2010
Note: An appeal pursuant to s.604 (C2010/730) was lodged against this decision - refer to Full Bench decision dated 23 December 2010 [[2010] FWAFB 9963] for result of appeal.
[2010] FWA 8766 |
|
DECISION |
Fair Work Act 2009
s.437—Protected action
Transport Workers’ Union of Australia
v
J.J. Richards & Sons Pty Ltd
(B2010/3580)
COMMISSIONER HARRISON | SYDNEY, 12 NOVEMBER 2010 |
Proposed protected action ballot by employees of J.J. Richards & Sons Pty Ltd.
[1] The Transport Workers’ Union of Australia (TWU) has made application pursuant to s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot in relation to employees of J.J. Richards & Sons Pty Ltd (JJR).
[2] The application was listed for hearing on 8 November 2010. At the hearing Mr Fagir and Ms Walton appeared in Sydney for the TWU and Ms Richards and Ms Forster appeared for JJR in Brisbane via video link.
The Legislation
[3] Fair Work Australia’s power to make a protected action ballot order is set out in s.443 of the Act:
“(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.”
[4] The application is opposed by JJR on the grounds that an order is premature given that bargaining has not commenced. It is conceded that an application pursuant to s.437 has been made.
Background
[5] On 24 February 2010 the TWU wrote to the Sydney Operations Manager of JJR advising that employees of JJR, members of the TWU had requested the TWU to initiate negotiations for an enterprise agreement in NSW.
[6] On 3 March 2010 JJR replied in the following:
“We hereby advise that at this stage, the Company declines to enter into discussions with the Transport Workers Union to negotiate and Enterprise Agreement for New South Wales. At this time the Company is of the belief that the Award, legislative protections and individual benefits afforded by the Company are sufficient.”
Submissions
[7] JJR submitted that protected industrial action is only available to the parties during the bargaining process. By virtue of its refusal to enter into discussions with the TWU it was said bargaining had not commenced.
[8] In support of this submission JJR sought to rely upon the majority in Ford Motor Company of Australia Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and others 1 [Ford]
“The emphasis on past and present conduct in s.443 suggests a continuum during which “genuinely trying to reach an agreement” must occur. In other words, bargaining must be in process at the time that the bargaining representative has been, and is, genuinely trying to reach an agreement.” 2
“If, indeed, protected industrial action may only be taken during bargaining for an enterprise agreement it would seem odd that an application for a protected action ballot to authorise such action could occur prior to bargaining commencing. In our view the scheme of the Act demonstrates that that is the case. There is nothing to indicate that it was intended that a protected action ballot order be made, or that protected action be able to be taken, prior to bargaining commencing.” 3
[9] JJR further submitted that the employees who are nominated to be balloted have not been notified of their representational rights pursuant to s.173 of the Act:
- a majority support determination pursuant to s.237 of the Act has not been made;
- the TWU does not have standing to apply for a protected action ballot because it has not been appointed pursuant to s.178 of the Act.
[10] It was submitted by JJR that the TWU and itself are not genuinely trying to reach agreement pursuant tos.431(1)(b) of the Act. In support of this submission JJR relied upon Total Marine Services Pty Ltd and Maritime Union of Australia 4 [TMS] as authority.
“All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement. At the very least one would normally expect the applicant to be able to demonstrate that it has clearly articulated the major items it is seeking for inclusion in the agreement, and to have provided a considered response to any demands made by the other side. Premature applications, where sufficient steps have not been taken to satisfy the test that the applicant has genuinely tried to reach an agreement, cannot be granted.” 5
“We submit that JJR has not engaged in, nor been directed by FWA to engage in negotiations to reach an Enterprise Agreement. As such the Applicant cannot demonstrate that it has “clearly articulated the major items it is seeking for inclusion in the Agreement.” JJR has not been provided with any information on what the Applicant may or may not want to include in a proposed Enterprise Agreement. We submit that this application has been brought prematurely.” 6
[11] JJR’s final submission in opposition was that the questions for determination in the proposed ballot must meet the requirements of an employee claim action pursuant to s.409 of the Act.
“Section 409(1)(a) prescribes that an employee claim action for a proposed agreement is industrial action that is organised or engaged in for the purposes of supporting or advancing claims in relation to the agreement that are only about, or are reasonably about, permitted matters.
The question posed by the TWU in its application does not refer to a claim per se, the subject of bargaining negotiations, and certainly does not advance or support any type of claim. J.J. Richards has never been served notice of any claims made by the TWU and we have not engaged in the process of bargaining. We respectfully submit to the court that the TWU may be misusing this process, as outlined at Division 8 of Part 3-3 of the Act, to initiate negotiations with J.J. Richards, and as such that this is the incorrect mechanism with which to achieve their intentions. The Fair Work Act does not authorise or provide for the use of industrial action to force an employer to engage in enterprise bargaining with an employee representative body such as the TWU.” 7
[12] The TWU submitted that the majority reasoning in Ford had been overtaken by subsequent Full Bench decisions in Stuartholme School and others v Independent Education Union of Australia 8 and MSS Security Pty Ltd v Liquor, Hospitality and Miscellaneous Union.9
[13] It was submitted that scope orders, majority support determinations, notification of representational rights or employer agreement to bargain are not pre-requisites for the granting of a protected action ballot.
[14] It was said that the Objects of Division 8 - Protected action ballots are simply about allowing employees to determine whether they wish to take protected action.
“....The idea that employees’ capacity to take protected action depends in some way on some level of employer compliance, whether through agreeing to bargain or through some other mechanism, issuing the notice or anything else, simply has no foundation in the text of the Act. Simply as a matter of commonsense the proposition fails. To say that employees can’t take protected action until the employer agrees to bargain or agrees to issue a notice of representational rights. It is simply antithetical to the scheme of the Act.
If we want to force the employer to meet us or to give us information, or otherwise bargain in good faith, then we have to go through the process of forcing them to agree to bargain. But the path of protected industrial action is quite a separate one and that all is required is a genuine attempt or genuine attempts to reach agreement. There is absolutely nothing in the Act that would suggest anything to the contrary, and of course the text of section 443(1) is simple. It might also be useful to consider the objects of the division set out at section 436. The object 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...” 10
[15] I agree with the submissions of the TWU above.
[16] In this matter it is clear that bargaining has not commenced because JJR has refused to engage with the TWU, but the question for decision, having regard to the ordinary meaning of the words of s.443 is whether the applicant, not the respondent, is genuinely trying to reach an agreement.
[17] The object of s.436, referred to above, is not only predicated on a simple notion but is also a facilitative provision to ascertain employee support or otherwise for engaging in protected action.
[18] In my view the preconditions JJR assert as necessary to the granting of an order for protected action are supported by the Act or by the Explanatory Memorandum’s text at paragraph 1755, paraphrased above.
[19] JJR’s reliance on the TMS decision is of little relevance in this matter. The Bench in TMS stated that the concept of genuinely trying to reach an agreement will be determined by the circumstances of particular negotiations. The Bench stated: “It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s.443 which must be applied.” 11
Conclusion
[20] I am satisfied that the TWU has been and is genuinely trying to reach an agreement with JJR. I am satisfied that s.443(1)(c) has been complied with and that an application for a protected action ballot order has been made pursuant to s.437 of the Act.
[21] JJR have been notified of the application as required by s.440.
[22] Accordingly, I grant the application in the terms sought by the TWU and order accordingly.
[23] An order will issue in PR503546.
COMMISSIONER
Appearances:
O Fagir and T Walton for the Transport Workers’ Union of Australia
K Richards and H Forster for J.J. Richards & Sons Pty Ltd
Hearing details:
2010.
Sydney:
November 8.
1 [2009] FWAFB 1240
2 Ibid., PN33
3 Ibid. PN39
4 [2009] FWAFB 368
5 Ibid., PN32
6 JJR Written Submissions, PN5.4
7 Transcript, PN30-31
8 [2010] FWAFB 1714
9 [2010] FWAFB 6519
10 Transcript PN42-44
11 [2009] FWAFB 368 at 31
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