United Voice v Wilson Security Pty Ltd
[2011] FWA 5828
•29 AUGUST 2011
[2011] FWA 5828 |
|
DECISION |
Fair Work Act 2009
s.437—Protected action
United Voice
v
Wilson Security Pty Ltd
(B2011/3297)
COMMISSIONER BISSETT | MELBOURNE, 29 AUGUST 2011 |
Proposed protected action ballot by employees of Wilson Security Pty Ltd.
[1] An application has been made by United Voice under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot with respect to its members employed by Wilson Security Pty Ltd (Wilson Security) that work in Victoria and would be subject to the proposed enterprise agreement.
[2] The matter was first heard on 23 August 2011 when Mr O’Grady for Wilson Security made an application for an adjournment of the matter pending a decision by Lewin C on an application under s.229 of the Act for good faith bargaining orders by Wilson Security (and others) arising from the same bargaining. I rejected that application for an adjournment but did grant a brief adjournment to enable the Respondent in this matter consider voluminous material lodged by United Voice just prior to the hearing and to file appropriate witness evidence on which it sought to rely.
[3] The matter came back on for hearing on 26 August 2011. At this time Mr O’Grady advised that Wilson Security does not dispute that United Voice is genuinely trying to reach agreement but seeks that, in making an order for the protected action ballot under s.443(3) of the Act, I include in that order a direction pursuant to s.449(2)(d) to the Australian Electoral Commission (AEC) to not commence the ballot for 21 days from the commencement of the order.
[4] It is not disputed that United Voice has met the obligations under s.443(1) such that I can make the order sought. This decision deals with the application of Wilson Security that I provide further direction to the AEC, in addition to those matters to be included in the ballot order under s.443(3) of the Act, with respect to the commencement of the ballot.
Background
[5] Prior to considering the submissions and evidence before me it is necessary to outline briefly the background to this matter.
[6] United Voice has been bargaining with Wilson Security and a number of other security companies (the companies) with respect to employees in Victoria. The outcome sought is not a single agreement across all companies. During this bargaining the bargaining representative for the companies made application under s.240 of the Act for Fair Work Australia (FWA) to deal with a bargaining dispute. Following a conference convened by FWA, United Voice issued a press release that stated in part that the companies had ‘confirmed plans to cut the pay of thousands of guards by more than $3000 a year, deepening a crisis that is seeing many of our most experienced guards quit their jobs.’ The companies sought correction of the press release and when this did not eventuate wrote to United Voice advising they considered the press release to be a breach of good faith bargaining and requesting a correction be published. No response was received and the companies subsequently made application under s.229 of the Act for bargaining orders. 1
[7] The application for bargaining orders was heard by Lewin C over a number of days, concluding on 22 August 2011. The order sought by the companies, and hence by the Respondent to this matter (paraphrased and abbreviated), is that the United Voice issue a correction press release in the same manner as the original press release including to all bargaining representatives and members of the United Voice negotiating group, that the correction be sent to all employees who would be covered by the proposed agreement and that United Voice direct all officials, employees and delegates and members of the United Voice negotiating group to not make statements to the effect that the companies’ proposal would constitute a pay cut and that each reference to a number of specific matters be accompanied by greater and full descriptive information. 2
[8] A decision in that matter has not been issued.
Submissions and evidence
[9] The witness statements and associated material lodged by both the Applicant and Respondent was not objected to, nor were the witnesses required for cross examination.
United Voice
[10] United Voice submits firstly that there is no jurisdiction to issue the directions sought by the Respondent but that if I find I have jurisdiction I should exercise my discretion to not issue such a direction.
[11] United Voice submits that s.449(2) does not provide me with the jurisdiction to issue the order as sought by Wilson Security. Section 449(2) requires that a ballot be conducted in accordance with any order, the timetable for the ballot, the Subdivision, any directions given by FWA and any other procedure prescribed by the regulations. Section 450 is not relevant to this matter as it relates to ballots conducted by other than the AEC. Section 451 sets out the requirements when the AEC conducts the ballot and s.451(2) gives exclusivity to determining the timetable for the conduct of the ballot to the AEC who must determine the timetable in consultation with the applicant and employer of the employees to be balloted.
[12] United Voice referred me to a decision of Thatcher C in National Union or Workers - New South Wales Branch v ACCO Australia Pty Ltd 3(ACCO) in which it was found that Fair Work Australia has no power to issue a direction with respect to the voting method (s.451(2)(b)). The same reasoning as relates to the voting method can be applied, it is submitted, to the matter of the timetable for the conduct of the ballot.
[13] On this basis United Voice says I do not have the power to issue a direction with respect to the timetable for the ballot which includes when the ballot should commence.
[14] Should I find I do have the power to issue a direction United Voice submits that I should exercise my discretion not to issue such a direction.
[15] On the assumption that the reasons for seeking the direction go to those matters before Lewin C with respect to the application for good faith bargaining orders, United Voice submits that there is no evidence to suggest that any orders issued by Lewin C will have any impact on the conduct of the ballot arising from these proceedings.
[16] United Voice submits that the press release subject to the good faith bargaining proceedings was available on the website of ‘Safeguard’ for the period 6 July - 1 August 2011, it was in any event not directed to members of the union likely to vote in this ballot and there is no evidence that anyone likely to vote in this ballot actually saw or has been influenced by the press release.
[17] United Voice submits that to justify any delay in this ballot where it is agreed that the union is genuinely trying to reach agreement the Respondent needs to show that members who will vote in the ballot heard or saw the press release and were influenced by it in how they will vote in the ballot.
[18] United Voice also submits that the taking of industrial action, where that action is approved by members through a ballot and where it meets the requirements of the Act, is a legitimate tool for employees whilst engaged in bargaining and that to deny them access to a protected action ballot will unfairly prejudice them in attempting to reach agreement with the Respondent.
Wilson Security
[19] Mr O’Grady says I do have the power to issue a direction as to when the ballot should commence under s.449(2)(d) of the Act and that I should issue the direction sought. Mr O’Grady submits the decision ACCO can be distinguished on the basis that it is directed to whether Fair Work Australia can issue directions with respect to the form of the method of voting and this matter is with respect to when the ballot should commence. In this respect Mr O’Grady submits that the ‘timetable’ referred to it s.451(2)(a) does not encompass all matters associated with the timing of the ballot.
[20] In ACCO Thatcher C also considered whether or not he had the discretion to amend the form of the question proposed under s.443(3)(d). Whilst determining that he should not alter the form of the question the Commissioner found that, in accordance with the provisions of s.599 of the Act he did have such a discretion. 4
[21] Mr O’Grady alternatively seeks to rely on this reasoning to have me determine a commencement date for the ballot. He says it was recognised in ACCO that Fair Work Australia retains power under s.599 of the Act to alter the form of the order granted from that contained in the application.
[22] Mr O’Grady submits that it would be an absurdity if I could set an extended date of the closure of the ballot under s.443(3)(c) (by virtue of the power to grant the application in some form other than that applied for) but could not establish the commencement date of the ballot.
[23] Given that I do have the power to issue the direction sought Mr O’Grady says I should issue the order to ensure the efficacy of any order issued by Lewin C in the good faith bargaining matter.
[24] Mr O’Grady submits that the evidence in the first statement of Mr Rendle 5 is that the information contained in the press release subject to the proceedings under s.229 is not accurate and the concession by Mr Redford that he cannot be confident that members did not read the press release allows me to draw the conclusion that some members may have read it. Those people may therefore be influenced by the press release and the relief granted by Lewin C in the good faith bargaining matter may be deprived of its intended effect if the ballot order is granted in the form sought by the Applicant.
Findings
[25] The decision I reach in this matter is not based on any view I have formed or findings with respect to the application for good faith bargaining orders by Wilson Security. I do not know and have not enquired as to what orders Lewin C may consider making in that matter. Further in reaching my decision I have not made any findings with respect to the extent to which members of United Voice who may be balloted as a result of the order arising from this application may have read or be influenced by the press release at issue in the good faith bargaining orders application. On this however I should say that if I was required to make such a finding the submissions of United Voice are, with respect to who the press release was directed towards, in my opinion, disingenuous.
[26] The requirement on me is that I make a decision with respect to an application for a protected action ballot order.
[27] I find that the application for a protected action ballot order by United Voice has been made in accordance with the requirements of s.437 of the Act.
[28] Further I find in accordance with s443(1)(b) of the Act that United Voice has been and is genuinely trying to reach an agreement with Wilson Security. Whilst bargaining has been occurring simultaneously with three employers I am satisfied that United Voice has been and is genuinely trying reach an agreement with the Respondent in this matter
[29] With respect to the matter as to whether I can issue a direction as sought there are three matters to be considered:
Must I issue the order in the form sought by the Applicant?
[30] I agree with the reasoning in ACCO that there is no mandatory obligation in s.443(3) of the Act that the ballot order be issued in the form sought even if the requirements in s.443(2) are met. There is nothing in the language of s.443 that suggests so, nor is there any reason to suggest that s.599 of the Act does not apply to an application made under s.437.
[31] It is therefore clear that the form of the order may vary from that included in the application.
Can I issue a direction to the AEC under s.449(2) of the Act?
[32] This question needs to be distinguished from the matter immediately above. Section 443 requires that, given certain conditions precedent are met I must issue an order dealing with four matters specified in s.443(3). Section 443 is in Subdivision B headed ‘Protected action ballot orders’ of Division 8 of Chapter 3 of the Act. Section 449 is found in Subdivision C of Division 8.
[33] Subdivision C of Division 8 of the Act states:
Subdivision C—Conduct of protected action ballot
449 Protected action ballot to be conducted by Australian Electoral Commission or other specified ballot agent
(1) A protected action ballot must be conducted by:
(a) if a person is specified in the protected action ballot order as the protected action ballot agent for the ballot—that person; or
(b) otherwise—the Australian Electoral Commission.
(2) The protected action ballot agent must conduct the protected action ballot in accordance with the following:
(a) the protected action ballot order;
(b) the timetable for the ballot;
(c) this Subdivision;
(d) any directions given by FWA;
(e) any procedures prescribed by the regulations.
450 Directions for conduct of protected action ballot
(1) This section applies if the protected action ballot agent is not the Australian Electoral Commission.
(2) FWA must give the protected action ballot agent written directions in relation to the following matters relating to the protected action ballot:
(a) the development of a timetable;
(b) the voting method, or methods, to be used;
(c) the compilation of the roll of voters;
(d) the addition of names to, or removal of names from, the roll of voters;
(e) any other matter in relation to the conduct of the ballot that FWA considers appropriate.
Note: A protected action ballot agent must not contravene a term of a direction given by FWA in relation to a protected action ballot (see subsection 463(2)).
(3) A direction given under subsection (2) may require the protected action ballot agent to comply with a provision of this Subdivision (other than subsection 454(5)) in relation to a particular matter.
Note: Subsection 454(5) provides for the Australian Electoral Commission to vary the roll of voters on its own initiative.
(4) To enable the roll of voters to be compiled, FWA may direct, in writing, either or both of the following:
(a) the employer of the employees who are to be balloted;
(b) the applicant for the protected action ballot order;
to give to FWA or the protected action ballot agent:
(c) the names of the employees included in the group or groups of employees specified in the protected action ballot order; and
(d) any other information that it is reasonable for FWA or the protected action ballot agent to require to assist in compiling the roll of voters.
451 Timetable for protected action ballot
(1) This section applies if:
(a) the protected action ballot agent is the Australian Electoral Commission; or
(b) FWA has directed the protected action ballot agent to comply with this section.
Note: If this section does not apply, the protected action ballot agent must comply with directions given by FWA in relation to the matters dealt with by this section (see section 450).
(2) As soon as practicable after receiving a copy of the protected action ballot order, the protected action ballot agent must, in consultation with each applicant for the order and the employer of the employees who are to be balloted:
(a) develop a timetable for the conduct of the protected action ballot; and
(b) determine the voting method, or methods, to be used for the ballot.
[34] In addition s.452 provides direction as to the compilation of the role of voters, s.453 specifies who is entitled to vote, s454 deals with variation to the roll of voters, s.455 deals with the ballot papers, s.456 with who may vote in the ballot, s.457 with reporting the result of the ballot and s.458 sets to the requirements for a ballot agent to report on the conduct of the ballot.
[35] Subdivision C in this respect provides a comprehensive framework for the conduct of the ballot whether it is to be conducted by the AEC or some other ballot agent.
[36] My view with respect to the role of the Subdivision is supported by consideration of the Explanatory Memorandum to the Fair Work Bill which states:
Subdivision C sets out the requirements for protected action ballots conducted by the AEC, but allows FWA to determine whether it is appropriate for the same requirements to apply to non-AEC ballot agents.
In a number of places, the Bill makes a distinction between the powers of the AEC to conduct protected action ballots as opposed to the powers of non-AEC ballot agents. For example, the AEC is able to direct employers and bargaining representatives to provide it with the information necessary to compile the roll of voters (sub-clause 452(3)) and the AEC is able to amend the roll of voters on its own initiative (sub-clauses 454(5)). In contrast, a non-AEC ballot agent may only exercise such powers if it has been directed to do so by FWA.
This reflects the fact that the AEC is a Commonwealth body which is accountable to the Parliament for its activities and is subject to the legal frameworks that apply to Commonwealth agencies. Also, the AEC has the systems and procedures in place to enable it to effectively conduct protected action ballots with limited supervision by FWA. 6
[37] Section 449 of the Act does no more than direct that a ballot agent, whether the Australian Electoral Commission (AEC) or otherwise, must carry out a ballot in accordance with any of those matters specified in s.449(2). Section 449(2) is not the source of any power for FWA to give direction with respect to those things mentioned but rather requires that, if FWA has issued an order, timetable, directions etc that the ballot is conducted in accordance with those.
[38] Section 450 applies where the agent conducting the ballot is not the AEC. In such circumstances Fair Work Australia must provide specific written directions to the agent with respect to the conduct of the ballot. The matters these directions must cover are set out in s.450(2). The power therefore to issue directions as contemplated in s.449(2)(d) is given to Fair Work Australia with respect to a non-AEC ballot agent by s.450(2). This is consistent with the requirement that the ballot be conducted in accordance with the Subdivision.
[39] Where the ballot agent is the AEC s.451 of the Act applies. It requires that the AEC develop a timetable for the ballot and the voting method in consultation with the Applicant and the employer. Unlike s.450(2) this section places no obligation on, nor gives any power to, FWA. The method of voting and the timetable for the ballot are in the control of the AEC. The AEC is of course obliged to conduct the ballot in accordance with the ballot order (s.449(2)(a)). It is in the ballot order that FWA has the power to effect the conduct of the ballot.
[40] If the ballot is to be conducted by a ballot agent who is not the AEC, FWA may require that ballot agent be directed to comply with the section. Such a direction however would be given in accordance with s.450.
[41] A similar structure is found in ss.452, 454 and 458 of Subdivision C. That is, each section sets an obligation on the AEC but applies to any other ballot agent only in accordance with a direction given by FWA. Such direction would be given in accordance with s.450.
[42] I therefore find that it is only in circumstance where the ballot agent is not the AEC that FWA has the power to issue directions as to the development of a timetable for the conduct of the ballot (and likewise those matters in ss.452, 454 and 458).
[43] Section 449(2)(c) requires that the ballot be conducted in accordance with this Subdivision. The Subdivision requires that the AEC, where it is the ballot agent, develop a timetable for the conduct of the ballot in consultation with the Applicant and the relevant employer.
[44] On this basis I find that Fair Work Australia does not have power to issue directions as to the AEC under s.449(2)(d) of the Act.
Should I exercise my discretion under s.599 of the Act?
[45] Mr O’Grady submits that, consistent with the decision in ACCO I do have a discretion to issue the ballot order in some form other than that sought (s.599). I agree. Section 443(3) does not place any constraint on what may be in the ballot order, but rather establishes what must be in the ballot order. It seems to me that it is possible to issue a ballot order that specifies when the ballot should commence. Such an order would not interfere with the powers of the AEC under s.451(2)(a) as the determination by the AEC of the ballot timetable must always be in accordance with the ballot order, whatever it may contain.
[46] In ordinary circumstances the commencement date for a ballot would not be considered a necessary part of a ballot order, but these are not ordinary circumstances. Multiple proceedings in the tribunal with respect to the same bargaining are testament to this.
[47] Given I can issue the order in some form other than that sought, should I exercise my discretion to grant Mr O’Grady the outcome he seeks by including in the order a commencement date for the ballot some 21 days after the issuing of the protected action ballot order.
[48] Mr O’Grady submits that I should do so on the grounds that to not do so may have the effect of rendering otiose or defeating the jurisdiction of Lewin C with respect to the application for good faith bargaining orders sought by Wilson Security.
[49] As set out above the only matter subject to the s.228 application before Lewin C is a press release issued by United Voice. That press release has been removed from the Safeguard campaign website.
[50] It would be foolish however to think that the press releases at issue and any order of Lewin C with respect to good faith bargaining are the only matters that will influence members of United Voice on how to vote in the protected action ballot. There is no doubt the union will place material before their members encouraging them to vote a certain way to the ballot questions. There is nothing to stop Wilson Security placing material before their employees on the state of bargaining. Bargaining has been proceeding for some months now and continues. Whilst no evidence was given to this effect it is reasonable to presume that material on the state of bargaining has been provided to the employees concerned. Even if the ballot is issued today it will be over 10 weeks since the press release was removed before the ballot closes.
[51] In all of the circumstances and given all of the options available to the Applicant and Respondent in this matter I do not consider it appropriate to exercise my discretion to include in the ballot order a commencement date for the ballot of the relevant employees.
[52] I am further fortified in my decision by the draft order for the ballot submitted by United Voice which proposes that the ballot should close 32 working days from the making of the order. This is a much greater period than is normally contained within a ballot order.
[53] On this basis I reject the application that I should include in the ballot order the date the ballot can commence.
Conclusion
[54] The application for a protected action ballot by United Voice with respect to those members of United Voice who are employed by Wilson Security in Victoria and will be covered by the proposed agreement is granted. An order will be issued to this effect today in accordance with the amended draft order lodged by United Voice.
COMMISSIONER
Appearances:
Mr. B. Redford of United Voice
Mr. C. O’Grady, Counsel, for Wilson Security
Hearing details:
2011
Melbourne
26 August
1 Exhibit R3, paragraphs 21-28.
2 The order is detailed at Exhibit R5.
3 [2009] FWA 226.
4 [2009] FWA 226, [32]-[39].
5 Exhibit R1.
6 Paragraphs 1788-90.
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