Transport Workers' Union of Australia v JJ Richards & Sons Pty Ltd
[2011] FWA 973
•16 FEBRUARY 2011
Note: Appeals pursuant to s.604 (C2011/90, C2011/3563) were lodged against this decision - refer to Full Bench decision dated 1 June 2011 [[2011] FWAFB 3377] for result of appeals.
[2011] FWA 973 |
|
DECISION |
Fair Work Act 2009
s.437—Protected action
Transport Workers’ Union of Australia
v
JJ Richards & Sons Pty Ltd
(B2011/2543)
COMMISSIONER HARRISON | SYDNEY, 16 FEBRUARY 2011 |
Proposed protected action ballot by employees of JJ Richards & Sons Pty Ltd.
[1] The Transport Workers’ Union of Australia (TWU) has made an application pursuant to s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to employees of JJ Richards & Sons Pty Ltd (JJR) who perform garbage collection for the Canterbury City Council in NSW.
[2] Mr O Fagir appeared for the TWU and Ms K Richards and Mr K Whalan appeared for JJR. Permission to intervene was given to Mr G Bull representing the Australian Mines & Metals Association (AMMA) and Mr D Wedgwood representing the Australian Higher Education Industrial Association (AHEIA).
Background to the application
[3] This application follows an earlier decision by me on 12 November 2010 granting an order on application by the TWU. 1 That decision and order was the subject of an appeal to the Full Bench in December 2010.
[4] On 23 December 2010, the Full Bench upheld the appeal and quashed the decision and order 2 on jurisdictional grounds related to entities of the NSW and Federal branches of the TWU, a technicality not before me at first instance.
[5] On 24 December 2010, the TWU wrote to JJR again seeking to commence bargaining and attached a draft agreement. On 7 January 2011, JJR replied and requested the TWU to reconsider its request on the grounds that the contract with Canterbury City Council will expire in February 2012 and that the Council would not accept JJR passing on increased wage costs.
[6] On 17 January 2011, the TWU wrote to JJR and provided an amended version of a draft agreement. JJR replied on 24 January 2011 reiterating its position.
[7] The facts and circumstances of this current application have changed to some degree since the first application. The TWU have particularised the details of the proposed enterprise agreement and JJR have given further reasons why it is not prepared to bargain.
[8] Ms K Richards, appearing for JJR, submitted the company was not refusing to bargain but nor has it agreed:
“We do have reservations in regard to entering bargaining due to the fact that, at this stage, there is no contractual certainty.
So we don’t believe that there’s been a refusal. Obviously we haven’t accepted, we have not engaged in bargaining and we do not wish to engage in bargaining at this time. However, we believed that we were in the process of discussing whether negotiations should or should not commence; we have not, as such, given a direct refusal. However, as I’ve explained, we definitely have not assented to agree to bargaining.” 3
[9] Ms Richards challenged the genuineness of the TWU in trying to reach an agreement where it claims to have the majority support of the employees, yet has not utilised s.237 of the Act to obtain a “majority support determination”. Consistent with the submissions advanced in the first application before me, JJR argued the TWU was precluded from making an application for a protected action ballot order as bargaining had not commenced.
[10] AMMA and AHEIA both supported the contention that the intent of the legislation is that if bargaining is not taking place, the bargaining agent must obtain a majority support determination to force bargaining before protected action can take place.
[11] AMMA submitted that, “...there are some absurdities and ambiguities that clearly arise if we give this ‘genuinely trying to reach an agreement’ its plain English language meaning.” 4
[12] AHEIA submitted the current Act is clear and consistent with the provisions of the Workplace Relations Act 1996 (the 1996 Act) which required a party to initiate bargaining. “The obligation to initiate bargaining in a formal sense, to ensure that every employee that’s relevant is aware of their rights, is the notification of representational rights. Now, if you haven’t got to that point, you can’t get any further.” 5
[13] The TWU submitted the course which an applicant must take to gain a majority support determination is vastly different to gaining a protected action ballot order. The former involves issues of determining proper scope, the method of proving a majority and, in this case in particular, handing over a lot of employee names agitating for a wage increase:
“Setting that aside, there are circumstances where a majority support determination might be useful but we know, from abundant experience, that when you’re dealing with an employer like this, an anti-union employer, 1600 employees, no collective agreements with obviously no intention whatsoever of making an agreement, the simple fact of getting them to sit down in a room and say, ‘No, no, no, no, no’, gets us no closer to making an agreement, gets us no closer to advancing the conditions of our members.
In the circumstances of this case, a majority support determination, in the absence of the industrial strength that’s created by a protected action ballot order and preparedness of employees to take protected action, that exercise, in this case, would be largely futile. It’s perfectly legitimate for us to decide, in this case, as we might in many, that forcing an employer to just sit down and talk without the sword of Damocles hanging over their head, as it were, is a waste of time and at the end of going through everything we need to do to get the determination and then going though some number of steps of bargaining, we’re going to end up right back at the start, where we need to procure a protected action to get any sort of result.” 6
Consideration
[14] The Legislation
“Division 8—Protected action ballots
Subdivision A—Introduction
....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.
Subdivision B—Protected action ballot orders
437 Application for a protected action ballot order
Who may apply for a protected action ballot order
(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to FWA for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.
(2) Subsection (1) does not apply if the proposed enterprise agreement is:
(a) a greenfields agreement; or
(b) a multi-enterprise agreement.
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.
(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.
Note: The protected action ballot agent will be the Australian Electoral Commission unless FWA specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).
(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:
(a) will be covered by the proposed enterprise agreement; and
(b) are represented by a bargaining representative who is an applicant for the protected action ballot order.
Documents to accompany application
(6) The application must be accompanied by any documents and other information prescribed by the regulations.
438 Restriction on when application may be made
(1) If one or more enterprise agreements cover the employees who will be covered by the proposed enterprise agreement, an application for a protected action ballot order must not be made earlier than 30 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be).
(2) To avoid doubt, making an application for a protected action ballot order does not constitute organising industrial action.
[....]
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....”
[15] Having regard to the wording of the above extracts of the Act there is nothing in the legislation which expressly precludes a protected action ballot order other than that the applicant is genuinely trying to reach agreement. The tribunal must make an order if it is satisfied the applicant has been and is genuinely trying to reach an agreement. (my emphasis)
[16] There are no absolute indicators in assessing whether an applicant is genuinely trying to reach agreement. Instead, all of the relevant circumstances of a particular application must be considered.
[17] The Full Bench in Total Marine Services Pty Ltd v The Maritime Union of Australia 7 held:
“The requirement that an applicant for a ballot order genuinely try to reach an agreement and be continuing to do so at the time an application for a ballot order is made was a requirement in the Workplace Relations Act 1996. The wording of the relevant section has been altered because of the removal of a process establishing a bargaining period during which protected action may be taken. The concept of genuinely trying to reach an agreement was dealt with in other parts of the Workplace Relations Act 1996, specifically in relation to the grounds for terminating a bargaining period.
In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. 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. In the course of examining of all of the circumstances it may be relevant to consider related matters but ultimately the test in s.443 must be applied.”
[18] In the above, it is also of note that reference is made to the absence of the requirement of a “bargaining period” in the current Act. The provisions of the 1996 Act which provided for a bargaining period was a codification of the commencement of bargaining. The absence of such codification in the current Act is in my view no mere oversight by the Parliament.
[19] The Explanatory Memorandum at paragraph r285 refers to “streamlined and simplified” provisions relating to protected industrial action whilst retaining penalties on unauthorised action. At paragraph r290 it states:
“When making an application for a secret ballot, there will still be a requirement for applicants to be genuinely trying to reach agreement, but the current complex and prescriptive procedural requirements will be streamlined reducing the red tape burden on applicants, Fair Work Australia (FWA), the Australian Electoral Commission (AEC) and alternative approved ballot agents.”
[20] I find it inconceivable that in the course of removing complex and prescriptive procedural requirements, the Parliament intended to add a raft of new complexity of the nature urged by JJR and the intervenors.
[21] The scheme of the Act at Parts 2-4 and 3-3 deal with the regulation and facilitation of enterprise bargaining and protected industrial action respectively. Both parts provide for orders to be granted by FWA as a means to induce bargaining, subject to the conditions imposed by the Act.
[22] In my opinion there is nothing in the Act which gives primacy to one part over another. Taken as a whole, both Parts 2-4 and 3-3 can be seen as a menu of options rather than a lock step process.
[23] I have no reason to believe one course of inducement excludes any other. In the circumstances of this matter, the TWU has chosen to apply for a protected action ballot order, as is its right as a bargaining agent.
[24] In my opinion the Act does not require a bargaining agent to seek a majority support determination, good faith bargaining orders, or scope orders as a prerequisite to seeking a protected action ballot order where an employer refuses to commence bargaining.
[25] The preconditions asserted by JJR and the intervenors as being necessary to exercise jurisdiction in a s.443 application are not requirements of the Act, nor does it follow that bargaining only commences when one or more of the preconditions are met.
[26] The following passage from the Explanatory Memorandum at paragraph 1664 makes clear the approach to be taken in considering an order under s.443 of the Act:
“...Specified persons organising or engaging in industrial action must be genuinely trying to reach an agreement (subclause 413(3)). The question whether a person is genuinely trying to reach an agreement requires a subjective assessment of the actual intention of the person and the overall circumstances. It is not limited to an assessment of whether the person is complying with the good faith bargaining requirements.”
[27] The TWU has been seeking to negotiate an enterprise agreement to cover employees of JJR employed on the City of Canterbury (NSW) waste removal contract since February 2010.
[28] I am satisfied that the TWU has been, and is, genuinely trying to reach an agreement with JJR.
[29] In all of the circumstances of this application I am satisfied that the statutory requirements in s.443(1)(a) and (b) have been met and I will accordingly issue an order [PR506438] in the terms sought by the TWU.
COMMISSIONER
Appearances:
O Fagir for the Transport Workers’ Union of Australia
K Richards and K Whalan for JJ Richards & Sons Pty Ltd
G Bull for the Australian Mines & Metals Association (intervening)
D Wedgwood for the Australian Higher Education Industrial Association (intervening)
Hearing details:
2011.
Sydney/Brisbane (via videolink):
February 4.
1 [2010] FWA 8766
2 [2010] FWAFB 9963
3 Transcript PN75-76
4 Ibid. PN163
5 Ibid. PN169
6 Ibid. PN181-182
7 [2009] FWAFB 368, PN 30,31
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