United Firefighters' Union of Australia

[2013] FWC 5360

[2013] FWC 5360

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Firefighters' Union of Australia
(B2013/1082)

COMMISSIONER WILSON MELBOURNE, 5 AUGUST 2013

Proposed protected action ballot by employees of The Metropolitan Fire and Emergency Services Board (MFB).

[1] This is an application for a protected action ballot order by the United Fire Fighters’ Union of Australia (“UFU”), Mr Justin Ward, Mr Wilson Chong, and Mr Nick Perkins (“the individual applicants”) for persons employed by The Metropolitan Fire and Emergency Services Board (“MFB”) in administrative and operational support roles.

[2] Mr W. Friend SC, of counsel, with Ms C. Kazakoff appeared with permission with Mr C. Lee for the UFU and the individual applicants. Ms S Millackey and Ms S Burns appeared with permission with and Mr M. Minucci for the MFB.

[3] The application in this matter was filed in the registry on Wednesday, 31 July 2013 and heard the following day.

[4] The applicants seek to ballot those employees employed by the MFB on the date of the order who would be covered by the proposed agreement and have either appointed the UFU or Mr Ward, Mr Chong or Mr Perkins as their bargaining representative. The proposed agreement replaces the Metropolitan Fire and Emergency Services Board Administrative and Operational Support Staff Agreement 2005 (as varied in Order PR983901). If granted, the application would put 73 questions to be balloted employees for their consideration.

[5] The material before me in this matter, which I have taken into account in making my decision, consists of the application itself, the submissions of Mr Friend and Ms Millackey and the witness statement of Mr Casey Lee which contains 35 attachments. The MFB did not seek to either object to the tendering of the witness statement or to cross-examine Mr Lee about its content.

[6] In considering this matter I must apply s.443 of the Fair Work Act which provides:

443 When the FWC must make a protected action ballot order

(1) The FWC 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) the FWC 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) The FWC 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) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

[7] I am satisfied that the application has been made in accordance with section 437.

[8] The provisions of s.438 of the Act include that 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. I find this provision to have been met. The nominal expiry date of the existing agreement is 30 June 2011 and the NUW’s application for a protected action ballot order was made on 31 July 2013.

[9] The UFU submitted it has been genuinely trying to reach agreement with the MFB in this matter. Mr Lee’s witness statement expands on the submission in detail, especially in relation to the material produced in the statements attachments.

[10] The MFB’s submissions on this point are that it does not say either that the union is genuinely trying to reach an agreement, or that it is not. The MFB did not provide material on this point beyond this submission.

[11] In relation to this subject is the decision of the Full Bench in Total Marine Services Pty Ltd v Maritime Union of Australia which was called upon to consider whether or not a party was genuinely trying to reach an agreement. In that matter, the Full Bench said relevantly:

[31] 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. 2 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 all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.

[32] We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. 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.

[12] I have considered the circumstances of bargaining put to me and have considered the extensive material provided to Mr Lee’s witness statement regarding the progress in negotiations and the steps taken in order to try and reach an agreement. As a result of these considerations, I am satisfied that each applicant in this matter has been and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[13] In their submissions the parties indicated agreement about many, but not all, of the questions proposed to be put to employees. A dispute was identified in the hearing by the MFB about certain questions for one of 3 reasons.

[14] The categories of dispute and the questions which are in dispute in each category are as follows:

The industrial action the UFU wants to pursue is not clear

Questions: 1, 2, 3, 4, 5, 7, 8, 13

The industrial action referred to within the question is not within the scope of section 19 of the Act (which defines the meaning of industrial action)

Questions: 23, 24, 25, 39, 40, 41, 42, 43

There are exceptional circumstances of the nature envisaged in section 443 (5) which justify an extended period of written notice

Questions: 16, 17, 18, 19, 20

Clarity

The submissions of the MFB about the clarity of the industrial action indicated in each question identified in this category surrounded the view that the characterisation of industrial action should be clear. Employees should know that what they are doing (or not) amounts to industrial action, as should their employer.

[15] The UFU argued the terminology of the questions was precise to the employees involved. After reviewing each question identified as lacking clarity, together with the submissions of each party, I concur with this view.

[16] In Mornington Peninsula Shire Council 1, the majority of the Full Bench held as follows;

[40] We think the second criticism of question 5 by MPSC is also unfounded. All that s.437 requires is that the questions should describe the industrial action in such a way that employees are capable of responding to them. The question of sufficient specificity of the industrial action to allow employers to take remedial or response action arises in relation to the notice requirements for industrial action in s.414 of the Act. Whilst it may be that any s.414 notice issued at some future time would need to be more specific, question 5 is expressed adequately to enable employees to respond to it, seeking authorisation of industrial action in the form indicated. (Endnote omitted)

[17] Each of the identified questions is sufficiently specific to allow the employee undertaking the work to be capable of responding to the matter it contains. As a result, I find these questions are sufficiently clear as set out in the application and that they may be included in the ballot.

Industrial action within the meaning of section 19

[18] The submissions of the MFB regarding this category of question were that the mooted action would not meet the definition of “industrial action” contained within s.19(1) of the Act. The subsection reads 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.

[19] The MFB’s proposition is that the mooted action would not result in work being done differently nor affect the performance of work. By way of examples, they submitted that parking cars in a car park against customary practice (question 23) was something done before work, not at work or as part of work and that the changed practice would not affect performance of work. They submitted that wearing any clothing the employee chose to wear (question 24) would similarly not affect the performance of work, since uniforms were not required.

[20] I note that the majority in Mornington Peninsula Shire Council held the wearing of campaign clothing is capable of constituting 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 2, and that the ceasing or interrupting of work in order to communicate the reasons for industrial action to clients or the media were capable of constituting industrial action within the meaning of s.19 of the Act3. I note also the findings by the majority in that matter about the meaning of “performance of work”4.

[21] After reviewing each of the questions and having taken into account the provisions of section 19(1) and the reasoning in Mornington Peninsula Shire Council, I am satisfied that each question in this category of proposed questions sufficiently relates to “industrial action”.

Exceptional circumstances

[22] The MFB contends that 5 questions give rise to the exceptional circumstances test set out in s.443(5) which reads as follows:

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

[23] The MFB submits the needs of the community for fire fighting services creates the necessary exceptional circumstances and that insufficient notice of industrial action increases the risk the MFB may not be able to properly protect the community. The MFB submits the 3 working day period should be increased to 7 working days.

[24] The disputed questions are as follows;

“16. bans on driving MFB appliances (e.g. out of commission Fire Trucks).

17. bans on decommissioning MFB vehicles and any work related to decommissioning or disposing of such vehicles.

18. bans on organising and delivering training on new appliances and equipment.

19. bans on performing design modification work on appliances which are not in commission.

20. bans on commissioning new appliances.”

[25] I have reviewed the questions that fall into this category and discern a difference between questions 16 and 20 and the remainder. The proposition advanced by the MFB about community protection for these 2 questions is more compelling than the remainder, since they go potentially to the question of what equipment might be out-of-service, but needs to be brought within service.

[26] In contrast, the subject matter of questions 17, 18 and 19 go to issues of what equipment is presently in-service, but is due to be taken out-of-service; and to issues of training and design modification for appliances not in commission. I have insufficient material before me from the MFB on these aspects for me to conclude there are exceptional circumstances that would warrant extending the period of notice for the taking of industrial action.

[27] The driving of an MFB appliance or the commissioning of new appliances conceivably has closer or more immediate connection to the community interest than do the decommissioning of vehicles, the provision of training new appliances; or design modification work. As a result, I find there are exceptional circumstance relating to questions 16 and 20 that would warrant extending the period of notice for the taking of industrial action.

[28] The parties are agreed that exceptional circumstances arise in question 46, which reads as follows;

“46. an unlimited number of stoppages of the performance of all work for up to 4 hours duration”

[29] In indicating their agreement, Mr Friend submitted that the UFU agreement to the extension to the notice period for this question went only to four categories of employee, namely;

● Information Communications Services Technicians
● Information Communications Help Desk Employees
● Scientific Officers
● Emergency Control Centre Employees

[30] Accordingly, I find there are exceptional circumstances in relation to questions 16 and 20, as well as question 46, and that accordingly the period of written notice referred to in paragraph 414(2)(a) should be 7 working days instead of 3 working days. In respect of question 46, the extension will apply only to the four categories of employees indicated above.

[31] Having found that an application has been properly made and that each applicant has been and is genuinely trying to reach an agreement with the employer of the employees who are to be balloted, I must make a protected action ballot order.

[32] An order consistent with my reasoning above is issued at the same time as this decision. That order;

a) grants a ballot of employees as sought by the UFU and the individual applicants on the questions indicated in the application;

b) will specify that the period of written notice referred to in paragraph 414(2)(a) is extended to 7 working days in respect of the proposed industrial action set out in questions 16, 20 and 46, and that the extension in respect of question 46 will be in respect of the four categories of employee referred to in the body of this decision.

COMMISSIONER

Appearances:

Mr W. Friend SC, of counsel and Ms C. Kazakoff and Mr C. Lee for the United Firefighters’ Union of Australia

Ms S. Millackey and Ms S. Burns and Mr M. Minucci for the Metropolitan Fire and Emergency Services Board (MFB).

Hearing details:

2013.

Melbourne:

August 1.

 1   [2011] FWAFB 4809, Watson SDP, Gooley C (in the majority), Kaufman SDP (dissenting)

 2   ibid, at [24]

 3   ibid, at [23]

 4 ibid, [25] to [35]

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