United Firefighters' Union of Australia v Country Fire Authority

[2015] FWC 5173

[2015] FWC 5173

FAIR WORK COMMISSION

DECISION

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

United Firefighters' Union of Australia
v
Country Fire Authority
(B2015/764)

COMMISSIONER WILSON MELBOURNE, 29 JULY 2015

Proposed protected action ballot of employees of Country Fire Authority.

Application

[1] This is an application for a protected action ballot order by members of the United Firefighters Union of Australia – Victoria Branch (UFU) employed by the Country Fire Authority (CFA) and whose employment is presently covered by three agreements, namely;

• Country Fire Authority/United Firefighters Union of Australia Operational Staff Enterprise Agreement 2010 1, the nominal expiry date of which was 30 September 2010;



• Country Fire Authority/United Firefighters Union of Australia Managers Community Safety Enterprise Agreement 2005, 2 the nominal expiry date of which was 1 October 2010; and



• CFA Professional, Technical and Administrative Agreement 2011, 3 the nominal expiry date of which was 21 December 2013.

[2] The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act).

[3] The Applicant seeks to ballot all employees of the CFA who will be covered by a single proposed enterprise agreement and for whom the UFU is their bargaining representative. The group of employees to be balloted is described in the Applicant’s proposed draft order as being the following;

“Recruit Firefighters, Firefighters Level 1, Firefighters Level 2, Firefighters Level 3, Qualified Firefighters, Senior Firefighters, Leading Firefighters, Station Officers, Senior Station Officers, Fire Service Communications Controllers, Operations Officers, Operations Manager, Managers Community Safety, Communications Technical Service Officers, Protective Equipment Technicians, Pad Operators, PAD Supervisors and Technical Officers, IT Field Operations, and Instructors who are represented by the United Firefighters Union and who are employees of the Respondent in this application.”

[4] The material filed in this application by the UFU advises that it is a bargaining representative for the purposes of s.176(1).

[5] In the course the hearing, the UFU tendered an amended question for consideration by employees, which comprises a single proposed question for those being balloted to either vote for or against. The proposed question contains 35 elements.

Threshold requirements

[6] In considering this matter I must apply s.443 of the Act which provides when the Fair Work Commission must make a protected action ballot order.

[7] To begin, I am satisfied that the application has been made in accordance with s.437 of the Act. The section requires that the Applicant is a bargaining representative, and I am satisfied that is the case (s.437(1)). The section also requires the application specify the group or groups of employees who are to be balloted (s.437(3)(a)). I am satisfied that this criterion has also been met by the Applicant.

[8] Section 437(3)(b) requires the application to specify the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action. The application made by the UFU proposes a single question with 35 elements, to which balloted employees are required to indicate either “yes” or “no” to the proposition;

“In support of reaching an Enterprise Agreement with your employer the Country Fire Authority do you wish to engage in protected industrial action against your employer separately, concurrently and/or consecutively in the form of ...”

[9] I note the requirement of s.438 to the effect that 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 and I am satisfied that such obligation is not contravened.

Consideration

[10] In order to be protected, industrial action must be authorised by a protected action ballot. 4 The principles to be followed by the Commission in determining whether the questions to be put to balloted employees are permissible are well settled. The Full Bench has held that all that s.437 requires is that the questions in a proposed order should describe the industrial action in such a way that employees are capable of responding to them.5

[11] The CFA has advised that it does not consent to the application and order being made on two grounds;

• Firstly, that proposing a single question in the manner set out in the draft order means that employees will be asked to approve or not approve an engaging in the action which has no application to their employment, rendering the proposed question impermissible; and



• In relation to item 8 of the amended question, the proposed question lacked sufficient clarity to enable employees to understand what work would not be taken and what work would remain to be done.

[12] The first of the objections arises because of the conjunction of there being a single question to be put to employees, albeit one containing 35 elements, together with the fact that the agreement proposed by the UFU would replace three existing agreements, as referred to above.

[13] The problem identified by the CFA is that the employees being balloted will be faced with a single question meaning that they are asked to approve or not approve as a block every element contained within the question. In a practical sense this means that certain employees will be called upon to vote upon industrial action which could not be taken by them, because of their occupational or other grouping, and which they are only being asked to approve because of the existence of a single rolled up question, combined with the union’s desire for there to be a single agreement replacing the current three. The CFA’s submissions in this regard included the following;

“8. As is apparent from section 437(1), the purpose of the ballot is to determine whether employees wish to engage in particular protected industrial action (or put differently industrial action of a particular type) in support of the making of the agreement. The ballot is not directed to determining whether employees wish that other employees engage (or do not engage) in industrial action of a particular type. The structure of the current question requires employees to express a view as to whether other groups of employees should engage in types of industrial action that have no application to the work being performed by them.

9. For example:

(a) items 21 – 23 are types of industrial action which are necessarily confined to Practical Area Drill Supervisors;

(b) items 24 and 25 are confined to Managers Community Safety; and

(c) items 26 – 35 are confined to Instructors.

The structure of the ballot question means that the issue of whether these discrete groups of employees approve the taking of the proposed action concerning them will be influenced, if not determined, by employees for whom the proposed action can have no application. The fact that only a single yes/no question has been asked means that it is impossible for the balloted employees to differentiate between particular protected industrial action that they may wish to engage in and particular protected industrial action, which has no application to their employment.” 6

[14] It was further argued that the use of the words “employees” in s.437(1) is to be read as a reference to the collective of employees that is actually capable of taking the industrial action. The submission was made that the Explanatory Memorandum to the Fair Work Bill 2008 allows such referencing with the following being said in relation to the purpose of a protected action ballot order;

“1756. A bargaining representative may apply to FWA for an order (a protected action ballot order) requiring a protected action ballot to be conducted (clause 437). The purpose of such a ballot is to determine whether certain employees wish to engage in particular protected industrial action for a proposed enterprise agreement”

[15] As a result, the CFA argues that the provision in s.437(1) to the effect that a bargaining representative “may apply to the FWC 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” requires a construction to the effect that the ballot is for the determination of whether certain employees would vote for the industrial action, being those capable of implementing industrial action.

[16] The CFA also put forward that had the question been put to balloted employees in a different form, perhaps as several questions, the problem would likely not arise because the employees could then discern, upon the natural and ordinary meaning of the words used in each question, about whether the question applied to them or not, and then mark the ballot paper accordingly.

[17] In response, the UFU argued that the matter being considered by the Commission in this instance is quite different from that under question in the earlier cases. In particular, it was argued that since the position of the Full Bench in John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, 7 (John Holland) the Commission has followed a non-technical approach to deciding questions about the proposed questions in protected action ballot order matters, with the focus being upon whether the balloted employees could understand the meaning of the question before them and be capable of implementing the action to which the question refers.

[18] It was also argued by the UFU that, to follow the CFA’s proposition within its first ground, would lead to the view that a rolled up question containing several elements would be in many cases impermissible, for the simple reason that it could be expected that there were many enterprises in which certain industrial action might be applicable to some employees, but not to others.

[19] The CFA’s second ground of objection was to item 8 of the amended question which would provides the following;

“In support of reaching an Enterprise Agreement with your employer the Country Fire Authority do you wish to engage in protected industrial action against your employer separately, concurrently and/or consecutively in the form of :

…

8. A ban on creating a record of any employee’s participation in protected industrial action;

…”

[20] The CFA’s argument in this respect is that implementation of the question would require the exercise of judgement on the part of the employee as to what was or was not protected industrial action, with its submissions providing the elaboration that;

“paragraph [8] provides no insight into the types of records to which the ban relates. This problem is exacerbated by the multiple types of industrial action being proposed. Once again an employee responding to this paragraph would have no meaningful idea of what records he was allowed to create and what records were the subject of the ban” 8

[21] In its submissions, the CFA noted that it had been held by the Full Bench in United Firefighters Union of Australia v Country Fire Authority 9 (UFU v CFA), a decision made under the Workplace Relations Act 1996, that the Commission should not approve a question that did not sufficiently specify the nature of the proposed industrial action. In this regard, the Full Bench was considering the question set out as follows;

“5. Industrial action in the form of bans on complying with any orders, directions and/or instructions issued by the employer to act in a way that is contrary to the protected industrial action that is taking place.” 10

[22] The Full Bench held in relation to this question;

“[29] In our view, the submissions by the CFA, in respect in paragraph 5 at least, are correct. Paragraph 5 does not specify any particular industrial action - but rather is an attempt to adopt a catch-all category of bans on complying with directions from the employer where the effect of the direction is to act in a way contrary to the protected industrial action. This may involve directions to perform alternate duties to those subject to protected action bans. A ban on such alternate duties may change from time to time depending on the nature of directions given by the employer to respond to protected action. We do not believe that proposed industrial action described in that manner satisfies the requirement in s.452(1) that the question in the application include the nature of the proposed industrial action. Rather the description is a general category of unspecified action. In our view, it is vague and meaningless.

[30] We also have significant concerns about the description of the proposed industrial action in several of the other paragraphs. While some of the bans are specified, others are expressed by reference to vague concepts.

[31] In determining whether to engage in protected action it is reasonable to expect, and in our view a requirement of the Act, that the nature of the proposed industrial action is specified. In our view, this requires employees who will be voting on the questions to understand what work would not be undertaken and what work would remain to be done. The description of the nature of the industrial action in the questions they are asked in the ballot should enable employees to understand the implications for them while at work, and other relevant circumstances.

[32] For the reasons outlined above we are of the view that the proposed industrial action contained in Schedule 1 did not satisfy the description of ‘the question to be put to the relevant employees in the ballot including the nature of the proposed industrial action’. We therefore are of the view that Commissioner Foggo was in error in finding that the application complied with s.452 of the Act.” 11

[23] It was argued that the decision in UFU v CFA had been relied upon in several single member decisions, leading to the refusal of the Commission to make orders in circumstances where a ballot proposes multiple forms of proposed industrial action and one single “yes/no” question, 12 with the following being said about the risks of a single question;

“It is appropriate in my view to follow the approach taken in John Holland and to adopt the view that, in most cases, the nature of the question or questions to be proposed in a protected ballot application will be a matter for the applicants to determine, providing the plain meaning of the words is able to be understood. I have no doubt this is the case in the present matter, particularly as it involves employees who have previous experience with these processes.

Clearly, some applicants have adopted the approach of including a “Yes/No” question for each type of action being proposed. Others have adopted the practice of listing various types of action and posing a single “Yes/No” question at the conclusion. It is for each to explain why these different approaches have been taken, however, based on the Full Bench decision in John Holland, and decisions that followed, both approaches are acceptable.

It can be argued it is preferable to have separate questions in respect of each type of proposed action. There are also risks inherent for an applicant in posing several types of proposed action but only a single question. In such cases an employee participating in the ballot, who supports some types of action but not others, might vote “no” and effectively reject all forms of action. Bargaining representatives presumably weigh up these considerations in drafting the questions included in their applications and the form they take.” 13

[24] It was also submitted by the CFA that the reasoning in John Holland, to the effect that “in most cases the drafting of questions will be a matter for the applicant”, 14 while decided after UFU v CFA, is not in conflict with the earlier case, principally for the reason that John Holland was concerned with a different question, namely whether the phraseology in the preamble to the question was permissible.

[25] In response, the UFU noted the findings of the Full Bench in National Tertiary Education Industry Union v RMIT University 15 that it is not the case that the nature of the action proposed in a protected action ballot order requires a high level of specificity, with the Act and John Holland making it clear that the question should be specific enough for employees to be capable of responding, and;

“[24] Once a PABO is issued by the Commission and industrial action gains support from the employees eligible to vote, the action is an “employee claim action” - assuming the other prerequisites are met. Once proper notice is given in accordance with s.414 of the Act, the industrial action which is supported by the PABO and notified will be protected under the Act, subject of course to any application made pursuant to Part 3-3, Division 6 of the Act to suspend or terminate the protected industrial action.” 16

[26] In this regard, the UFU noted that implementation of the action intimated by item 8 was an issue for consideration at a later time. Not only did the ballot need to be approved by the employees, but also at some later stage the CFA needed to be notified in accordance with the Act of industrial action that related to the matters in item 8, namely “a ban on creating a record of any employee’s participation in protected industrial action”. It would be at that time, and within that context, that employees would need to make an assessment of what was and what was not participation in protected industrial action. It was submitted that the notice to be given to the CFA would inform the way in which the matters in item 8 would be implemented.

[27] Having considered the matters raised by the CFA in relation to its first ground, that it would be impermissible to ask employees to approve engaging in an application which has no action to their employment, I am not satisfied that I am required to, or should, refuse the application for the reasons advanced. I find in favour of the submissions of the UFU that it is up to them as the bargaining representative to define the group of employees for whom they wish to bargain for an enterprise agreement and that, having defined that group, it is up to them as the applicant to propose industrial action to the employees to be balloted. All they are required to do, on the basis of prevailing authority, is to ensure that the question put to employees is specific enough for employees to be capable of responding.

[28] In addition, I do not consider the provisions of s.437(1), together with the form of the Explanatory Memorandum, to lead to the construction advanced by the CFA; namely that the provision should be read as being a ballot to determine whether certain employees wish to engage in particular protected industrial action, with the questions within the ballot being referable to those employees only.

[29] I also consider the CFA's objections regarding the amended item 8 as not forming an impediment to the issuing of the proposed order. In particular, I am not satisfied that the reasoning within UFU v CFA has direct application to the matters I am required to consider here. The question under consideration by the Full Bench in that matter is very different to the one in contention in this matter. The 2006 question went to a ban on compliance with demands by the employer “to act in a way that is contrary to the protected industrial action that is taking place” 17 whereas the matter in contention in this application is more limited, proposing only a ban on creating a record of participation in protected industrial action. The Full Bench’s description of the 2006 question as being a general category of unspecified action which was vague and meaningless does not appear to have application in this matter.

[30] The preamble to the proposed question creates the context of whether the employee wishes to engage in protected industrial action against the CFA “separately, concurrently and/or consecutively” and provides precision within the item itself that the ban is upon the creation of a record, with that record pertaining to any employee’s participation in protected industrial action. Such description is specified with some precision and is not in a category of being vague and meaningless.

[31] After consideration of all the materials before me in this matter and with reference to the earlier decisions of the Commission, I consider that the application made by the UFU and the question to be put to the employees to be balloted sufficiently describes the particular industrial action. I find that the proposed question is not so wide or vague as to not be capable of being understood by those called upon to vote in relation to the question.

Exceptional circumstances

[32] Pursuant to s.443(5) of the Act, if the Commission is satisfied that there are exceptional circumstances justifying the period of written notice to be longer than three working days, the protected action ballot order may specify a period of up to seven working days.

[33] In this regard I note that the CFA has not sought an extended period of notice for the taking of industrial action as contemplated by s.443(5) of the Act.

Order

[34] An order consistent with my reasoning above was issued by the Commission on 29 July 2015. 18

COMMISSIONER

Appearances:

Mr M Harding (of counsel) for the UFU

Mr C O’Grady (of counsel) for the CFA

Hearing details:

2015.

Melbourne:

28 July

 1   AE881690

 2   AG847853

 3   AE894903

 4   John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union[2010] FWAFB 526, (2010) 194 IR 239, at [14]

 5   Ibid, at [19]; see also Re: Mornington Peninsula Shire Council[2011] FWAFB 4809, at [40]

 6   Exhibit R1, paras 8 - 9

 7   [2010] FWAFB 526, (2010) 194 IR 239

 8   Exhibit R1, para 11(b)

 9   AIRCFB (2006) (unreported), Print PR973841

 10   Ibid, at [3]

 11   Ibid, at [29] – [32]

 12   Health Services Union v Victorian Institute of Forensic Mental Health[2012] FWA 4633, 222 IR 8

 13   Ibid, at [47] – [49]

 14   [2010] FWAFB 526, (2010) 194 IR 239, at [19]

 15   [2013] FWCFB 9549

 16   Ibid

 17   AIRCFB (2006) (unreported), Print PR973841

 18   PR 569907

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