Transport Workers' Union of Australia v Suez Recycling and Recovery Pty Ltd T/A Suez

[2018] FWC 6733

[2018] FWC 6733

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v
Suez Recycling and Recovery Pty Ltd T/A Suez
(B2018/1001)

COMMISSIONER HAMPTON SYDNEY, 31 OCTOBER 2018

Proposed protected action ballot of employees of Suez Recycling and Recovery Pty Ltd T/A Suez.

[1] This is an application by Transport Workers' Union of Australia (the TWU) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order (PABO) in relation to certain employees of Suez Recycling and Recovery Pty Ltd T/A Suez (Suez).

[2] On 29 October 2018, the Commission wrote to Suez seeking its position on the application and requested advice if the matter was to be contested. The Commission subsequently received submissions from Suez setting out its response to the application.

[3] On the basis of the submissions provided by Suez, the matter was listed for hearing by telephone on 31 October 2018.

[4] As confirmed at the hearing, Suez did not oppose the application and indicated that the parties are bargaining in good faith and have genuinely been trying to reach an Enterprise Agreement. It did however raise concerns in relation to one of the questions in the proposed ballot. Those concerns relate to a question about the taking of industrial action which would permit non-compliance with company policy with respect to interviews with mainstream media. Suez contended that those employees participating in any such industrial action should not be able to circumvent the company’s policies and procedures. It also indicated that non-compliance with Suez policies and procedure would be considered appropriately.

[5] The TWU contended that if supported through the ballot following the making of a PABO, any such action would become protected industrial action.

[6] The role of the PABO, and consequently the role of the Commission in considering any such application, is established by the terms of the Act. Essentially, a PABO is a necessary step for a bargaining representative to ultimately seek the capacity to take protected industrial action in support of bargaining for a single enterprise agreement.

[7] The PABO is part of the bargaining regime of the Act. The scheme of the Act is outlined in various decisions of the Commission including in John Holland v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and The Australian Workers’ Union 1 and by the Federal Court in J.J. Richards & Sons Pty Ltd v Fair Work Australia.2

[8] The taking of protected industrial action by both employees and employers, that is designed to advance claims and to persuade the other party to change their position, is part of that scheme.

[9] Whether any proposed industrial action becomes protected will ultimately depend on compliance with the statutory parameters including whether a relevant question is supported by the ballot,³ whether the action is notified in accordance with the requirements of the Act,⁴ and whether it is industrial action within the meaning of the Act.⁵ Further, an employer who is subject to threatened, impending or probable industrial action may seek to have such action suspended or terminated on various grounds including whether it endangers the life, the personal health or safety, or the welfare, of the population or of part of it or causes significant damage to the Australian economy or an important part of it,⁶ or causes significant economic harm.⁷ Industrial action that is not protected industrial action may be prevented.⁸

[10] Given the undisputed facts of this matter, there is no contest that a valid application has been made pursuant to s.437 of the Act.

[11] It is apparent from the terms of the Act that in order to succeed with this application the TWU must satisfy the Commission that it has been, and is, genuinely trying to reach an agreement with Suez as required by s.443(1)(b) of the Act. It is also apparent from s.443 of the Act, that where this requirement is met (along with the other prerequisites that are not in dispute here) the Commission must make a PABO.

[12] It is common ground that the TWU has been and is genuinely trying to reach an Enterprise Agreement with Suez within the meaning of the Act.

[13] I have also considered all of the material before me, including the statutory declaration of Mr Ned Pollitt of the TWU setting out the steps taken by it in bargaining with Suez. I am satisfied that there is a notification time in relation to the proposed agreement 9 and that all of the requirements in s.443(1) of the Act have been met. Accordingly, I am obliged to issue an order in this matter.

[14] In relation to the concerns raised about one of the questions it is not necessary or appropriate for the Commission to form any view about the potential consequences of that question at this juncture. I am satisfied that the question could form the basis for protected industrial action, depending upon when, how and in what form any action is supported by the ballot and notified to the employer. On that basis, there are no grounds to remove or modify the ballot question and Suez did not contend otherwise. As to whether any action is ultimately protected, whether the employer has any capacity to take action to suspend or cancel any notified action or take disciplinary steps, may be matters for another time having regard to the provisions of the Act including those provisions discussed at paragraph [9] of this decision, s.19 Meaning of industrial action, and the General Protections set out in Part 3-1. The parties should take appropriate advice about these matters.

[15] An order in conformity with the Act is being issued in conjunction with this decision. 10

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR701932>

 1   [2010] FWAFB 526.

 2 [2012] FCAFC 53.

3 Section 437, section 408 and 409 of the Act.

4 Section 414 of the Act.

5 Section 19 of the Act.

6 Section 424 of the Act.

7 Section 423 of the Act.

8 Section 418 of the Act.

 9 Section 437(2A) of the Act. The notice of Employee Representational Rights has been provided by the employer and bargaining has commenced.

 10   PR701933.