United Firefighters' Union of Australia v Transfield Services (Australia) Pty Limited T/A Transfield Services (Australia) Pty Ltd

[2015] FWC 6922

[2015] FWC 6922

FAIR WORK COMMISSION

DECISION

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

United Firefighters' Union of Australia
v
Transfield Services (Australia) Pty Limited T/A Transfield Services (Australia) Pty Ltd
(B2015/1434)

COMMISSIONER WILSON MELBOURNE, 8 OCTOBER 2015

Proposed protected action ballot of employees of Transfield Services (Australia) Pty Limited.

Application

[1] This is an application for a protected action ballot order of members of the United Firefighters' Union of Australia – West Australia Branch (UFU WA) employed by Transfield Services (Australia) Pty Ltd (Transfield) and whose employment is presently covered by the Transfield Services (Australia) Pty Limited GSS (WA) and United Firefighters' Union of Australia (WA Branch) Fire and Rescue Enterprise Agreement 2011, 1 (the 2011 Agreement) the nominal expiry date of which was 12 September 2015.

[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 Transfield who will be covered by the proposed enterprise agreement and for whom the UFU WA is their bargaining representative. The material filed in this application by the UFUWA asserts that it is a bargaining representative for the purposes of s.176 (1).

Threshold requirements

[4] 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.

[5] 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.

[6] Since the nominal expiry date of the 2011 Agreement is 12 September 2015, and date of the union’s application was 5 October 2015, the application is consistent with s.438 which requires 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.

[7] 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.

[8] The question that the UFU sought to be put to those who are to be balloted in its original application is the following;

“For the purposes of supporting or advancing claims in respect of the proposed enterprise agreement with your employer, do you endorse the following protected industrial action against your employer (to be taken either separately, concurrently and/or consecutively):

1. A ban or limitation on the performance of overtime, including deployments and any hours outside the rostered shifts roster.

2. Bans or limitations on the performance of administrative work (except for the performance of any work required to be undertaken by legislation including any action, process or work consistent with Occupational Safety and Health legislation)”

[9] In the course for hearing before me, the UFU WA clarified that its intention with the above is that voters indicate “yes” or “no” firstly in respect of item 1 above and secondly in respect of item 2 above.

[10] After the hearing was conducted in this matter, the UFU WA provided an amended draft order to my Chambers which not only is consistent with the foregoing splitting of items 1 and 2, but amended the particulars of the question sought so that there are three elements. I take this amendment to be a response to one of the objections raised by Transfield, and in particular to provide clarity of the union’s original item 1. That objection is discussed in greater detail at a later point in this decision. The ballot question in the union’s amended draft order is as follows;

“For the purposes of supporting or advancing claims in respect of the proposed enterprise agreement with your employer, do you endorse the following protected industrial action against your employer (to be taken either separately, concurrently and/or consecutively):

1. Bans or limitations on the performance of overtime.

Yes No

2. Bans or limitations on the performance of deployments.

Yes No

3. Bans or limitations on the performance of administrative work (except for the performance of any work required to be undertaken by legislation including any action, process or work consistent with Occupational Safety and Health legislation).

Yes No”

[11] The Respondent, Transfield, has advised that it does not consent to the application and order being made on the basis that the UFU WA is not genuinely trying to reach an agreement, in a manner which means the Commission would not be satisfied of the criteria within s.443 (1).

[12] In addition, Transfield put forward that if the Commission were to grant the application made by the UFU WA, it should exercise the discretion allowed under s 443 (5) that there are exceptional circumstances justifying the period of written notice for the commencement of protected industrial action being longer than three working days and instead, in Transfield’s view, a period of seven working days for the provision of such notice should be allowed. Finally, Transfield put forward that there is a case for clarification to one part of the proposed question, which argument is addressed by the union in its amended draft order.

[13] Transfield have submitted that the phrase “a ban or limitation on the performance of overtime, including deployments and any hours outside the rostered shift roster” within the question referred to above is ambiguous. It is argued by the Respondent, that this question could be viewed either as a ban or limitation on the performance of overtime, or in the alternative a ban on undertaking both of overtime and deployments. The submissions of the parties indicated that “deployments” within the context in which the parties work means a requirement for employees to work anywhere in the State of Western Australia, and physically outside of the two Department of Defence bases at which permanent firefighting services are provided by Transfield, namely RAAF Base Pearce and HMAS Stirling.

[14] The principal objection to the UFU WA’s application by Transfield is that, in its view, the union has not been, genuinely trying to reach an agreement with the Respondent.

[15] In this regard, the Respondent put forward essentially that it is yet to respond in writing to the UFU WA’s log of claims which it received in final form on 11 September 2015.

Consideration

[16] The submissions and evidence in this matter are limited to the application made by the UFU WA and a short response filed by Transfield. The material provided by the union at the time of making the application and to which I have had regard, comprises the relevant application form and several attachments being an email from 10 July 2015, and an email from 11 September 2015 which has attached to it amended log of claims and a marked up proposed agreement and the draft order sought by the union. The material provided by Transfield and to which I have had regard consists of an email from Mr Costi, it’s Employee Relations Manager – SA/NT/WA. In addition both parties have had the opportunity to provide submissions to me in the course of a hearing on 7 October 2015.

[17] The following chronology associated with bargaining for a new agreement is discerned from these materials and submissions;

• In July and August 2014, the union corresponded with Transfield about the commencement of bargaining negotiations. There was further correspondence on the same matter apparently in April 2015. Even so, negotiations did not commence and a timetable for negotiations was not agreed.

• On 10 July 2015, the union wrote to Transfield seeking to recommend bargaining for a new agreement and provided the company with its log of claims and a proposed amended agreement. The same correspondence sought Transfield indicate its availability for meetings to discuss and progress bargaining.

• The meeting between the parties was held on 13 August 2015 when the union outlined and explained its log of claims. The parties agreed to a second meeting on 30 September 2015 which was subsequently agreed to include a second day on 1 October 2015.

• At around the same time, between August and September, there was engagement between the parties about the prospect of a backpay offer from Transfield. On 10 September 2015 the union advised Transfield it did not want to accept a backpay offer made by the company and that “the membership expressed a desire to pursue protected industrial action in support of their claim”. 2

• An amended log of claims and marked up replacement agreement was provided by the union to Transfield on 11 September 2015.

• The nominal expiry date for the existing agreement was reached on 12 September 2015.

• On 30 September 2015 the parties met in negotiations. The union’s application in this matter records that the negotiation meeting scheduled for 1 October 2015 was postponed because the union had not received a written response to its log of claims from Transfield. Both parties, it seems, anticipated that the step after the meeting on 30 September 2015 would be for Transfield to provide its written response to the union, both as to its views about the union’s log of claims as well as to put forward any claims that the company itself wish to make of employees and that each would meet again, tentatively on 23 October 2015.

• An application for a protected action ballot order was filed by the UFU WA in the Commission on 5 October 2015 at 3 PM.

[18] In defence of the argument put forward by Transfield that the UFU WA has not been genuinely trying to reach an agreement with the Respondent, the UFU WA argues that the requirements of the Act for the issuing of a protected action ballot order have been sufficiently met by the union. In particular, the union puts forward that bargaining has started and is progressing and will continue to progress irrespective of the product of this application.

[19] Transfield have rejected these submissions, arguing instead that there has been a failure by the UFU WA to allow an opportunity for the company to respond.

[20] The provision requiring consideration in this matter is set out in s.443(1) and (2), which provides as follows;

“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) – (5) (omitted)”

[21] The Full Bench in Esso Australia Pty Ltd v AMWU, CEPU & AWU 3 (Esso) has held that this application of this section, and the phrase ‘has been, and is, genuinely trying to reach an agreement’ in particular, requires the Commission to have regard to all the circumstances of the matter;

“[54] The reference to the Commission being ‘satisfied’ means that whether or not the requisite circumstance exists is a discretionary decision. Section 443(1)(b) directs attention to the conduct of the applicant. The expression ‘has been, and is’, imports temporal considerations. The Commission’s attention is thereby directed to the applicant’s prior conduct at the time the application for a protected action ballot order is determined. Given the context the reference to ‘an agreement’ is plainly a reference to an enterprise agreement within the meaning of Part 2-4 of the FW Act. The clear inference from s.172(1) is that the substantive terms of enterprise agreements should be confined to permitted matters, though the Commission is not required to scrutinise each agreement to ensure that all its terms are about permitted matters and the statutory requirements for the approval of an agreement (ss 186-187) make no express reference to the concept of permitted matters (also see s.253).

[55] Section 443(1)(b) does not contain any words which limit the circumstances in which the Commission may be satisfied that an applicant ‘has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted’. Further, the Explanatory Memorandum to what became s.443 supports the proposition that the legislature did not intend that any one factor would necessarily be determinative of the question of whether the applicant is genuinely trying to reach an agreement with the employer. The relevant parts of the Explanatory Memorandum to what became s.443 states:

1771. For joint applications, each applicant must be and must have been, genuinely trying to reach an agreement with the relevant employer. A finding by FWA that there is no majority support for collective bargaining is not of itself intended to be determinative of the question of whether the applicant is genuinely trying to reach an agreement with the employer.

1772.It could be the case that an applicant engaged in pattern bargaining (as defined in clause 412) in relation to the relevant employer would not be genuinely trying to reach an agreement, based on the indicia listed in subclause 412(3) (e.g., the applicant may not have been prepared to take into account the individual circumstances of the employer in bargaining for the agreement). (emphasis added)

[56] Neither of the paragraphs set out above support the proposition that it was intended that any one factor would be determinative of the issue in s.443(1)(b).

[57] Whether an applicant ‘has been, and is, genuinely trying to reach an agreement’ is a question of fact to be decided having regard to all of the facts and circumstances of the particular case. Such a construction of s.443(1)(b) is consistent with the judgment of the Full Court in JJ Richards and with a number of Full Bench decisions of the Commission (see Total Marine; Pelican Point Power Limited v ASU; JJ Richards No.1; Alcoa; JJ Richards No.2; and Farstad).” 4 (references omitted)

[22] The above matter was decided by the Full Bench after the Full Federal Court judgement in J.J. Richards & Sons Pty Ltd v Fair Work Australia, 5 in which Flick J held the following about the operation of s.443(1);

“58. It is ultimately concluded that s 443(1)(b) is to be construed such that Fair Work Australia cannot reach a state of satisfaction that an “applicant ... is ... genuinely trying to reach an agreement with the employer” unless:

• an applicant has approached the employer and informed the employer of the general ambit of that for which agreement is sought; and



• the employer has foreshadowed – even in the most general of terms – its attitude as to the proposed agreement.

More may be required. Much may well depend upon the factual scenario in which the terms of s 443(1)(b) are to be applied. But such a minimum statement of that which is required is sufficient to dispose of the present Application. Contrary to the submissions advanced on behalf of the Applicants, the terms of s 443(1)(b) do not require:

• bargaining to have commenced within the meaning of and for the purposes of s 173, found within Part 2-4, of the Fair Work Act.

59. So much, it is concluded, follows from the natural and ordinary meaning of the phrase “trying to reach an agreement ...”. It is difficult to conclude that any person can try to reach an agreement with another in the absence of a disclosure of that for which consensus is sought. One person may wish to reach an agreement with another. But, until the general content of the proposed agreement is disclosed, it cannot be said that he has even attempted to reach an agreement. Until disclosed, it is not known whether the other person will readily embrace the proposed agreement or shun it or (perhaps) embrace the concept of an agreement but wish to vary one or other of its terms. Until disclosed, the person seeking agreement has not even tried to solicit the response of the other. Unless the disclosure is genuinely with a view to reaching agreement, it could well be said that the attempt to reach an agreement falls short of a person even trying to reach agreement. The addition of the word “genuine” – on one approach to construction – perhaps adds little. But the addition of that term serves to emphasise the importance of a person actually trying to solicit agreement. Until a proposed agreement has been disclosed to the prospective parties, and a response solicited, an applicant has not even tried to reach agreement – let alone genuinely tried to reach agreement.” 6

[23] The matter of J.J. Richards & Sons Pty Ltd v Fair Work Australia related to a matter in which bargaining had not commenced, with Tracey J summarising the law thus;

“The legislature has required that FWA must make a protected action ballot order if the two conditions prescribed by s 443(1) are satisfied even if bargaining between an employer and employees has not commenced.” 7

[24] The Full Bench’s consideration of s.443(1) was largely in the context of whether pursuing a substantive claim which is not about a permitted matter, is not genuinely trying to reach an agreement within the meaning of s.443(1)(b). 8 That issue does not arise here.

[25] Instead the matter requiring determination here is whether or not, in the context of the interactions that have taken place between the Applicant and Transfield so far, might indicate that the UFU WA is not genuinely trying to reach an agreement.

[26] In forming a view about that test, I am required to have regard to all of the facts and circumstances of the case.

[27] In order to do this, I have first had regard to the chronology set out above which indicates the process the parties have been going through to commence and then progress bargaining.

[28] Further I have had regard to the content of the 2011 Agreement and the proposed agreement provided by the union in marked-up form to Transfield and which is included as an attachment to the union’s application. I note that most, if not all, pages of the marked up document include proposed changes. While, of course, the proposed changes might be seen as demands by the UFU WA that must be met by Transfield, such would not be consistent with the material before me, which instead indicates a preparedness on the part of the UFU WA to at least receive the views of Transfield about the proposals as well as to receive counterproposals from the company.

[29] Finally, I have had regard to several findings that may be drawn about the conduct of the respective parties from the material which is before me;

• Firstly, the material before me allows a finding that bargaining has commenced. While bargaining may be at an early stage and while it may even be that the Respondent has had limited opportunity to put to the Applicant what it thinks about the Union’s log of claims or what it seeks employees to agree to, finding that bargaining has commenced is nonetheless open to the Commission.

• Secondly, it is the case that some aspects of the respondent’s views have been disclosed to the UFU WA, and apparently sufficiently so, for the union and its members to form a view on certain matters, including the question of backpay to be provided to employees by Transfield.

• Thirdly, the material allows a finding that the UFU WA still wishes to receive a full and considered response from Transfield and that the parties are now exchanging views about when that will occur.

[30] On the basis of this consideration, I find that, for the purposes of s.443 (1) that the Applicant has been, and is, genuinely trying to reach an agreement with Transfield, being the employer the employees who are to be balloted.

[31] Two further matters arise for consideration, namely whether the proposed question is capable of being misunderstood by those called upon to vote in relation to it; and whether or not there are exceptional circumstances, pursuant to s.443 (5), that would satisfy the Commission that there should be a period of greater than 3 working days for the notification of protected industrial action, which Transfield argue should be a period of 7 working days.

[32] The argument put forward by Transfield in respect of the question is whether or not item 1 of the proposed question contained an ambiguity in as much as it could be that “a ban or limitation on the performance of overtime, including deployments and any hours outside the rostered shifts roster” could be viewed potentially as either about a limitation on overtime performed during deployments, or bans or limitation on deployments, separate and distinct to a ban on overtime. The submissions of the parties indicated that “deployments” within the context meant the requirement for employees to work physically outside of the two Department of defence bases at which permanent firefighting services are provided by Transfield, namely RAAF Base Pearce and HMAS Stirling.

[33] In response to the Transfield argument, the UFU WA put forward that all deployments would be overtime and that a splitting of the question in the manner put forward by Transfield would be redundant. Transfield contested that deployments will always be conducted on overtime and argued that there was some in which ordinary hours would be worked.

[34] 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 WA 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.

[35] In matters of this type, the presumption is that the drafting of the question is matter for the applicant. 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, with it following that in most cases the drafting of the questions will be a matter for the applicant. 9 I further note the findings of the Full Bench in the matter of National Tertiary Education Industry Union v RMIT University,10 in which it was held that the nature of the action as identified in the protected action ballot order does not require a high level of specificity and that once proper notice of action has been given in accordance with the Act, the industrial action will be protected under the Act subject to any application to suspend or terminate it.

[36] In any event, I am satisfied that the amended draft order provided by the UFU WA adequately addresses the problem perceived by Transfield. The Respondent did not make further submissions to the Commission about the amended draft order despite being given an opportunity to do so. As a result, I find that the question as proposed by the Applicant union in its amended draft order meets the relevant requirements of s.437 of the Act.

[37] In relation to the Transfield proposal that the period of notification for the taking of protected industrial action should be extended from three working days to 7 working days, the Respondent puts forward that its work as an essential service provider to the Department of Defence’s air operations is an exceptional circumstance in the manner envisaged within s.443 (5). The parties accept that an extension would not be granted in the event that the Commission is not satisfied that exceptional circumstances exist.

[38] Transfield’s submissions in this regard are those already referred to, together with the prospect that Department of Defence operations sometimes arise at short notice. In the event that the Respondent was faced with Protected Industrial Action, given the criticality of the Department’s operations generally and firefighting in particular, it may be necessary to give additional time both to the Respondent and the Department to make alternative arrangements.

[39] The UFU WA contests whether there are exceptional circumstances that would warrant an extension of the notification period. In this regard, it pointed to the content of the protected action ballot order questions which, in effect, contains two elements; a ban or limitation on overtime and the related activity of deployments; and the undertaking of certain administrative duties. It noted that the “purpose of the notice is to enable the employer to have some time to take steps to respond to or ameliorate the effects of the industrial action that is to be taken”. 11 The UFU WA argues that in such case, any bans or limitations to be put on by its members are unlikely to impact on the Department of Defence in the way Transfield puts forward.

[40] For the reason that Transfield will, if the ballot is passed and protected industrial action is notified, be required to take responsive action in a way that is not only effective, but presumably also acceptable to its client, the Department of Defence; that the nature of its work as a service provider in any event is of a high risk nature in an unpredictable environment; that its work is likely to be carried out in any part of Western Australia; and that the needs of Transfield’s client are likely to arise at both short notice and be subject to change, I am satisfied that there are exceptional circumstances of the manner contemplated by s.443 (5). I am satisfied those exceptional circumstances warrant the period of written notice referred to in s.414(2)(a) for protected industrial action to be longer than three working days. The order that I make will require the notice period to be given to be seven working days.

Order

[41] 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 WA on the questions as set out in the union’s amended draft order;

b) will specify that the period of written notice referred to in paragraph 414(2)(b) is extended to 7 working days.

COMMISSIONER

Appearances:

Mr Nolan, Mr Jolly & Ms Anderson, on behalf of the Applicant

Mr Costi & Ms Fuller on behalf of the Respondent

Hearing details:

2015

Melbourne (via telephone)

October 7

 1   AE891300

 2   Form F34 – Application for a Protected Action Ballot, para 4.1.9

 3   [2015] FWCFB 210

 4   Ibid, at [54] - [57]

 5   J.J. Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53, (2012) 218 IR 454

 6   Ibid, at [58] – [59], per Flick J

 7   Ibid, at [33], per Tracey J

 8   [2015] FWCFB 210, at [59]

 9   John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union[2010] FWAFB 526, (2010) 194 IR 239, at [19]

 10   [2013] FWCFB 9549, at [24] – [ 25]

 11   AMWU, CEPU and Anor v Skilled Offshore Pty Ltd[2015] FWC 6727, at [74]

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