United Voice v Animal Welfare League of South Australia Inc

[2011] FWA 8300

[2011] FWA 8300

FAIR WORK AUSTRALIA

DECISION

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

United Voice
v
Animal Welfare League of South Australia Inc
(B2011/4012)

DEPUTY PRESIDENT BARTEL ADELAIDE, 5 DECEMBER 2011

Proposed protected action ballot by employees of the Animal Welfare League of South Australia Inc.

[1] This decision concerns an application by the United Voice (the Union) for a protected action ballot order pursuant to s.437 of the Fair Work Act 2009 (the FW Act). The application is opposed by the Animal Welfare League of South Australia Incorporated (AWLSA or the respondent).

[2] The relevant employees to be balloted are those employees of the respondent for whom the Union is the bargaining representative and who are currently covered by the Animal Welfare League of South Australia Incorporated Union Collective Agreement 2009-2011.

[3] At the hearing Ms L Harrison appeared for the Union and Mr J Parker, of counsel, appeared for the respondent, with leave granted by the Tribunal pursuant to s.596(2) of the Act.

[4] The respondent advanced two grounds in opposition to the order sought. Firstly, it was argued that the Union was not genuinely trying to reach agreement and therefore the requirement in s.443(1)(b) of the Act had not been met. Secondly, it was submitted that the terms of the first question to be put to the ballot of members as contained in the draft order provided by the Union lacked the necessary specificity which would enable the employees to be clear on the extent of the action they were being asked to endorse.

[5] The Union argued that it had been and remained genuinely trying to reach an agreement with the employer and called Boyd MacRae, the organiser with carriage of the negotiations on behalf of the Union, to give evidence in relation to the course of the negotiations to date. Ms Harrison submitted that the question in the draft ballot order addressed by Mr Parker was clear and did not create confusion.

[6] Section 443 of the Act relevantly provides;

“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).
...
(5) ... ”

It is common ground that the requirement of s.443(1)(a) has been met, that is, that the application is consistent with the requirements set out in s.437 of the Act.

Genuinely trying to reach agreement

[7] The relevant facts of this matter can be briefly stated. An initial meeting was held on 28 August 2011. The parties had not submitted any claims at this stage and I understand that the meeting was to discuss how bargaining would proceed.

[8] The Union forwarded a log of six claims to AWLSA on 1 September 2011, including claims directed to wages, staffing levels, income protection, and allowances. On 19 September, AWLSA provided the Union with a copy of the existing agreement with tracked changes representing the changes it sought. Most of the changes related to formatting and drafting, but substantive changes to some clauses were also included. The respondent also addressed each of the items in the Union log of claims. None of the claims were agreed but an explanation of AWLSA’s position was provided and a counter offer on the issue of wages was put forward for the Union’s consideration.

[9] On 14 October the Union responded seeking further information on changes proposed by AWLSA and rejecting its counter offer on wages.

[10] A meeting took place on 28 October 2011 and the outcome of that meeting was recorded in correspondence from AWLSA dated 23 November 2011. Twelve items had been agreed and a further 7 conditions that existed in the award prior to the introduction of the Animal Care and Veterinary Services Award 2010 were accepted for inclusion in the proposed enterprise agreement, as requested by the Union. The parties remained in dispute over several issues including the quantum of wages, income protection insurance and allowances.

[11] In relation to s.443(1)(a) of the Act, Mr Parker referred to the delay in the Union responding to AWLSA’s draft agreement and the failure of the Union to respond to all matters put forward by AWLSA. While acknowledging that the concepts of good faith bargaining and genuinely trying to reach agreement are not the same, Mr Parker submitted that in the context of the short time frame over which the parties had been engaged in discussions and the fact that only one meeting had been held where negotiations took place, these features of the Union’s conduct were significant in assessing whether they were genuinely trying to reach agreement.

[12] It was submitted that the negotiations had not proceeded to a stage where it was appropriate for the present application to be made and that the Union’s time would be better spent in negotiations with the respondent rather than before the Tribunal. Mr Parker submitted that AWLSA had demonstrated its willingness to bargain and has sought advice from the Union on suitable meeting dates to continue the discussions.

[13] Ms Harrison submitted that there was no evidence that the Union was not genuinely trying to reach agreement, and at its highest, the respondent was attempting to equate tardiness in responding to the employer’s claims with not genuinely trying to reach agreement. Such an approach was said to seek to import an additional requirement into the concept of genuinely trying to reach agreement which is not contemplated by the Act.

[14] The parties referred to various decisions of the Tribunal concerning the assessment of whether a party is genuinely trying to reach an agreement. The approach considered in Total Marine Services Pty Ltd v Maritime Union of Australia (Total Marine) 1 requires that the Tribunal makes an assessment of the circumstances of the particular negotiations. The Full Bench in Total Marine stated that:

“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.” 2

[15] Ms Harrison submitted that the decision in Total Marine is inconsistent with and has been superseded by the approach in JJ Richards & Sons v The Transport Workers’ Union of Australia and Ors (JJ Richards). 3 It was argued that Total Marine stands for the proposition that a party has to be at a certain point in negotiations before a protected action ballot application can be made, whereas JJ Richards has no such requirement and the only test is whether the applicant has been and is genuinely trying to reach agreement.

[16] Each of these decisions was arrived at in the context of the particular facts and issues that fell for determination. JJ Richards considered whether a union could be genuinely trying to reach agreement and have the right to engage in protected action where the employer refused to bargain. The Full Bench considered and rejected employer arguments that the scheme of the Act provided other avenues for the union to pursue an enterprise agreement in these circumstances, and concluded that:

“Whether an applicant is genuinely trying to reach an agreement is a question of fact to be decided on the material before the tribunal. In this case the TWU served an outline of its main demands on the company and sought its agreement to bargain. The company said it did not wish to commence bargaining. The TWU repeated its request and the company again rejected it. In the circumstances it was open to the Commissioner to draw the conclusion that the TWU was genuine. The company’s submissions sought to give a priority to the seeking and obtaining of a majority support determination. But those submissions ignore the right of a union, on compliance with the relevant requirements, to attempt to bring an employer to the bargaining table by resort to the protected industrial action provisions.” 4 (emphasis added)

[17] I can see no contradiction or inconsistency between the rationale in JJ Richards and the approach in Total Marine, as set out in paragraph [14], above.

[18] The relevance of the delay in the Union’s response to AWL’s position as set out in its letter and attachment of 19 September, is not that it took the Union 6 weeks to request further information, which was unfortunate to say the least and may bear on whether the Union is bargaining in good faith. It is the entirety of the interactions between the parties that must be assessed, and the delay is one aspect of the pattern of discussions and correspondence between the parties over the relevant period.

[19] The Union has articulated its position on the log of claims and has considered the response of the AWLSA. It has entered into discussions with AWLSA in respect to its proposals and the Union has consulted members about the position put forward by the respondent. Of significance, each party is maintaining its original position on the key claims advanced by the Union and they remain in dispute. It may be the case that further negotiations between the parties will bring them closer together and both parties have indicated a willingness to meet and continue the discussions. However this state of affairs does not mean that the present application is premature.

[20] The Union wants to gauge the support of its members for various forms of protected action. Whether this is the best strategy or the one most likely to lead to an agreement being reached is not a matter that is relevant to the assessment of the conduct of the Union for the purposes of s.443(1)(a) of the Act. Moreover, the application for a protected action ballot does not mean that the Union is no longer genuinely trying to reach an agreement with AWLSA. 5

The form of the ballot question

[21] The question opposed by the respondent is framed as follows:

“In support of reaching an enterprise agreement with your employer, do you wish to organise and/or engage separately, concurrently, and/or consecutively in the following action against your employer:

1. An unlimited number of stop work meetings of varying lengths?

Yes [ ]   No[ ]”

[22] The respondent is concerned with the phrase “of varying lengths” and Mr Parker submitted that the question is ambiguous and not sufficiently clear for employees to understand the extent of the industrial action contemplated and to therefore make an informed choice when voting. 6 He submitted that the Union should amend the question by specifying different lengths of stop work meetings in separate questions or by deleting the question altogether.

[23] Ms Harrison submitted that the question in the draft ballot order was clear and that decisions of this Tribunal have endorsed questions where the duration of the industrial action is not specified.

[24] As intimated at the hearing of this matter, there is in my mind a distinction between the clarity of a question and the ability of the employee to make an informed decision about it on the one hand; and on the other, the specificity of the question or questions and the ability of the employee to know, at the time of voting, the exact duration of the action that may be proposed at a later date. The latter situation is rarely achieved, not in the least due to the introductory paragraph to the ballot questions which almost invariably contemplates each and every form of action being taken separately, consecutively and/or concurrently.

[25] There is nothing in the wording of the question in issue that would cause confusion to an employee or that contemplates outcomes not apparent on an ordinary reading of the question. I am satisfied that employees reading this question will be able to make an informed and genuine choice whether to vote in favour of the proposed action.

Conclusion

[26] For the reasons outlined earlier, I conclude that the Union has been and is genuinely trying to reach an agreement with AWLSA and that the other requirements of the Act in order to obtain a protected action ballot order have been satisfied. I also consider that the questions as framed in the draft order provided by the Union are clear and enable employees to make an informed decision when they cast a vote in the ballot that will be conducted.

[27] The protected action ballot order is issued with this decision.

DEPUTY PRESIDENT

 1   [2009] FWAFB 368

 2   Ibid at [32]

 3   [2011] FWAFB 3377

 4   Ibid at [40]

 5   See National Union of Workers - New South Wales Branch v ACCO Australia Pty Ltd, [2009] FWA 226 at [26]

 6   Australian Workers’ Union v John Holland Pty Ltd, [2009] FWA 576

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