United Workers' Union v Ikon Administration Pty Ltd
[2023] FWC 3065
•22 NOVEMBER 2023
| [2023] FWC 3065 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
United Workers' Union
v
IKON Administration Pty Ltd
(B2023/1275)
| COMMISSIONER YILMAZ | MELBOURNE, 22 NOVEMBER 2023 |
Proposed protected action ballot of employees of IKON Administration Pty Ltd
This is an application by the United Workers' Union (UWU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of the Respondent, IKON Administration Pty Ltd (Ikon).
On 20 November 2023, the UWU filed its application and on the same day the Commission was advised that Ikon intended to raise objections to the Application.
On 21 November 2023, a hearing was convened where Ikon confirmed their opposition to the application and raised two objections: that the UWU was not genuinely trying to reach agreement and that some of categories of ‘action’ on the proposed ballot are not ‘industrial action’ within the meaning of s.19 of the Fair Work Act 2009 (the Act).
The parties were directed to file and serve submissions prior to the hearing. The UWU relied on its written submissions and witness evidence of Mr Nicholas Richardson, Lead Organiser. Ikon relied on its written submissions.
Ikon was given leave to be represented by Ms Ruth Frenzel of IR Results.
The submissions and evidence
By way of background Ikon is a cleaning contractor. It is currently subject to a review of its tender to continue providing cleaning services at Melbourne Airport. The UWU is seeking a protected action ballot order, in respect to the employees of Ikon that currently perform work at Melbourne Airport and to be covered by the proposed agreement. There is no current or expired enterprise agreement that covers the employees subject to this application.
The UWU declares that in April 2023 it collected signatures from among the cleaning employees of Ikon asserting they wanted to bargain for an enterprise agreement. It informed Ikon on 14 April 2023 that it obtained a petition of employees and sought from the Respondent agreement to commence bargaining. The UWU declares that on request, it gave Ikon time to consider its position and engage with Melbourne Airport before it pushed the bargaining process again.
On 4 May 2023, the UWU wrote to Ikon advising that it was seeking an enterprise agreement based on the outcome achieved at Brisbane Airport and states that any improvement in conditions requires the involvement of Melbourne Airport to ensure all tenderers match employment conditions. A majority support application was followed by additional petitions until Ikon agreed to bargain on 9 June 2023. A NERR was issued on 14 June 2023. Two bargaining meetings followed.
On 20 November 2023, the UWU, as a bargaining representative filed an application pursuant to s.437 of the Act which contained a completed and signed form F34 Application, a form F34B statutory declaration in support of the application with 7 annexures and a draft order.
On receipt of the application, Ikon put the Commission and the UWU on notice that while still reviewing the application, it wished to proceed as though it were going to raise an objection.[1] After prompting by the Commission to provide a basis for it’s objections, Ikon advised it intended to make an objection regarding the description of categories of industrial action in the notice. As well as a further objection that the UWU has not “genuinely tried to reach agreement in the circumstances of bargaining.”[2]
Ikon submits that the Commission should not be satisfied to make a protected action ballot order in relation to the proposed enterprise agreement on the basis that s.443(1)(b) has been met. It submits that the Respondent has not had sufficient opportunity to respond to the UWU’s most recent log of claims. Additionally, it submits that only two bargaining meetings have been held (the first which was scheduled when convenient to the UWU) and the third is scheduled to go ahead next month. It states that it is currently engaged in a tender process, the results of which should be released prior to the end of the year and that it is of the view that the UWU is bringing this application to maximise leverage because of the risk of damage to Ikon. Ikon contends that the UWU has prematurely made the application, and further that it has made erroneous and misleading claims to its members about Ikon’s position.
Ikon also submits that the questions 3,4,5 and 9 in the proposed ballot do not go to matters that constitute ‘industrial action’ within the meaning of s.19 of the Act.
The UWU submit that they have been attempting to make an Agreement with Ikon since 14 April 2023 and that the NERR was only issued on 14 June 2023. Further it submits that the application is not premature and despite the recent meeting held on 14 November 2023 and the next is scheduled on 14 December 2023, the parties have not reached agreement on a large number of issues. It further submits that the Commission must be satisfied that the UWU has been, and is genuinely trying to reach an agreement, and the test of s.443(1)(b) is sufficiently met through the UWU’s engagement in the bargaining meetings conducted previously.
The UWU also submits that the questions 3-5 are often in its protected action ballot applications and that each category is a form of a stoppage of work to conduct an activity. Further it submits that the actions described in question 9 ‘constitute ‘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’ and are therefore industrial action within the meaning of s 19(1)(b).’[3]
Consideration
In respect of the objections, Ikon submits that s.443(1) (b) is to be met and as it contends that the Application is premature together with the timing and inaccurate information disseminated, that the Commission cannot be satisfied to make the order. The second objection concerns the questions contained in the protected action ballot application, more particularly that the action proposed is not industrial in character.
Relevantly, s.443(1) provides:
‘(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.’
The power of the Commission is not discretionary to make a protected action ballot order; the order must be made if the two subsections are met. On this point Deputy President Hampton in the recent decision of Application by "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) (188V) - [2023] FWC 1337 stated that:
‘[8] The Commission’s power to make a protected action ballot order under s.443 of the FW Act is not discretionary in nature. Section 443(1) imposes a duty on the Commission to make an order if two conditions have been met: first (in paragraph (a)), that an application for such an order has been made under s.437 and, second (in paragraph (b)), that the Commission is satisfied that each applicant for an order has been, and is, genuinely trying to reach an agreement with the employer of the employees to be balloted. If these conditions are not met, the Commission is prohibited from making an order: s.443(2). It is common ground that the first requirement has been met in this matter.’
The first condition of s.443(1) requires that the application had been made under s.437 of the Act. Relevantly, s.437 provides:
Application for a protected action ballot order
Who may apply for a protected action ballot order
(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), 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.
(2) Subsection (1) does not apply if the proposed enterprise agreement is:
(a) a greenfields agreement; or
(b) a cooperative workplace agreement.
(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.
Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).
Matters to be specified in application
(3) The application must specify:(a) the group or groups of employees who are to be balloted; and
(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action; and
(c) the name of the person or entity that the applicant wishes to be the protected action ballot agent for the protected action ballot.
Note: The protected action ballot agent for the ballot must be an eligible protected action ballot agent unless there are exceptional circumstances: see section 444.
(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:(a) will be covered by the proposed enterprise agreement; and
(b) either:(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or
(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.
Documents to accompany application
(6) The application must be accompanied by any documents and other information prescribed by the regulations.
The UWU is eligible to make the application as bargaining representative of employees to be covered by the proposed enterprise agreement. The proposed enterprise agreement is neither a greenfields nor cooperative workplace agreement. The notification time is 9 June 2023. The application specifies the relevant matters in s.437(3) and there is no contest in terms of the employees specified, protected action ballot agent or bargaining representative.
Section 437 (3)(b) makes reference to the nature of the proposed industrial action that must be specified in the questions to be put to employees who are to be balloted. Ikon submits that questions 3,4,5 and 9 in the application capturing categories of action are not industrial action within the meaning of s.19 of the Act.[4] Questions 3, 4 and 5 relate to stoppages of work for the purpose of distributing material to the public, speaking to the media and/or posting to social media and posting union posters and/or materials about the reason for the industrial action. Question 9 concerns bans on the performance of work without distributing union material and/or speaking to members of the public (including other airport employees) about the reasons for industrial action.
Ikon rely on authority where proposed action to share information with media is comparable. In Ambulance Victoria v United Voice[5] Justice Tracey clarified the principle in identifying work normally performed and the “taking of action above and beyond and outside the range of their normal work rather than the placing of a restriction on the performance of those duties” is contrary to rules, practice and/or contractual duties but is not a ‘departure from the customary manner of performance of work and thereby amount to industrial action.”
Relevantly s.19 of the Act provides:
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.
An application requires the questions describing the industrial action to be put to employees who are to be balloted to be specified. The questions are to be described in a way that employees are capable of responding to them[6] and sufficiently clear to make an informed decision.[7] While it is not contended that the questions lack clarity, it is contended that some of the questions are outside the scope of the definition of industrial action. Various decisions and the note in s.19 clarify that action will not be industrial in character if it is outside the area of disputation and bargaining. Applications for an order to stop or prevent industrial action and remedies are helpful to identify what industrial action is protected or unprotected.
However, this application is pursuant to s.437 and not an application to stop or prevent industrial action. Recently a Full Bench in NTEU v Curtin University[8] determined that the Commission should not dictate which questions can be posed and how they should be posed in a s.437 application. The Bench observed that by considering the contents of the proposed order it has the effect of reversing the order of the consideration contemplated by s.443(1). It is helpful to refer to the relevant paragraphs of the decision which assessed the legal framework and authority as follows:
‘[37] The Commission’s power to make a protected action ballot order under s 443 of the FW Act is not discretionary in nature. Section 443(1) imposes a duty on the Commission to make an order if two conditions have been met: first (in paragraph (a)), that an application for such an order has been made under s 437 and, second (in paragraph (b)), that the Commission is satisfied that each applicant for an order has been, and is, genuinely trying to reach an agreement with the employer of the employees to be balloted. If these conditions are not met, then the Commission is prohibited from making an order: s 443(2).
[38] In this case, it was not in dispute, and the Deputy President was satisfied, that the second condition was met.29 In the proceedings below, the University contended that the NTEU’s application did not satisfy the first condition because its proposed questions (3)-(10) did not satisfy the requirement in s 437(3)(b) that the questions to be put to the employees must “specify … the nature of the proposed industrial action”. The approach taken by the Deputy President, as best we understand the decision, is that she was satisfied that the first condition in s 443(1)(a) was met30 but only after first excising questions (3)-(10) on the ground that they were ambiguous.
[39] This approach is problematic on a number of levels. The apparent course taken by the Deputy President whereby she determined the contents of the order to be made in response to the NTEU’s application, and on that basis determined that the condition in s 443(1)(a) was met, reverses the order of consideration contemplated by s 443 whereby the Commission first determines whether there is an obligation to make an order under s 443(1) and then determines the content of the order in conformity with s 443(3)-(5). More fundamentally, however, it raises the question of what is necessary to satisfy the requirement in s 443(1)(a), which operates as a condition precedent to the duty to make an order.
[40] It may be accepted that for an application to have been made “under” s 437, it must have been made in conformity with s 437. That proposition is implicit in all the previous authorities relating to protected action ballot orders and was not contested by the NTEU in this case. That means that the application must specify the matters in s 437(3). We note at this point that, unlike s 443(1)(b), the jurisdictional prerequisite in s 443(1)(a) is not expressed in terms of the Commission’s satisfaction as to the requirement. Therefore, whether an application has been made under s 437, including whether it specifies the matters in s 437(3)(b), must be regarded as a matter of jurisdictional fact.
[41] The Full Bench decision in John Holland has generally been regarded as authoritative in relation to what is necessary for compliance with s 437(3)(b), and it was not suggested by either party before us that we should not follow it. In that case, the employer contended that the application for a protected action ballot order was not valid “because the question to be put to the employees was ambiguous and did not adequately specify the nature of the industrial action for which the endorsement of the employees was sought”.31 The eight questions the subject of contention were preceded by a preamble which indicated that the industrial action specified in each question might be taken “separately, concurrently and/or consecutively”, and the eighth question referred to “[i]ndefinite or periodic bans on overtime”.32 The decision records that the employer made the following submission:
“[13] The appellant made a detailed analysis of the questions in the AMWU’s application in order to show that they are ambiguous and lacking in the necessary specificity. It was pointed out that the preamble asks employees to indicate whether they wish to engage in eight different types of industrial action “separately, concurrently and/or consecutively”. It was submitted that employees would have little appreciation of the outer limits of the action for which endorsement was sought, would not be in a position to make an informed choice and that the words “separately, concurrently and/or consecutively” make the nature of the industrial action endorsed by a positive vote quite unclear. Question eight was also the subject of criticism on the basis that it is not possible to give an affirmative answer to a disjunctive question. It was also submitted that questions one to eight taken together make little sense because, for example, it would not be possible to ban overtime in conjunction with a 24 hour stoppage of work.”
(underlining added)
[42] The Full Bench rejected this submission. As to the proper construction of s 437, the Full Bench said:
“[19] Moving now to the construction of s.437 itself, seen in its statutory context, all that the section requires is that the questions should describe the industrial action in such a way that employees are capable of responding to them. If the questions are ambiguous or lack clarity there may be consequences for the bargaining representative and the employees if reliance is placed on the result of the ballot in taking industrial action. If the question or questions give rise to ambiguity, the conclusion may be reached that the industrial action specified in a notice under s.414 was not authorised by the ballot and that the action is not protected for the purposes of s.409(2). It is true that ambiguity or lack of clarity in the description of the industrial action is undesirable, but these are matters more appropriate for consideration under other provisions. It follows that in most cases the drafting of the questions will be a matter for the applicant.”
(underlining added)
[43] It is readily apparent that the Full Bench, in the above passage, rejected the employer’s submission that perceived ambiguity in a specified question constitutes a basis to find that an application does not comply with s 437(3)(b). Rather, the Full Bench considered that the consequence of any such ambiguity, if any, would arise at the point of consideration as to whether particular industrial action taken pursuant to a notice issued under s 414 is authorised as required by s 409(2) such as to be “protected” (that is, subject to the immunity in s 415). The Full Bench had earlier observed that the notice requirements in s 414(1) and (6) would give rise to a “natural tendency” 33 for bargaining representatives to frame ballot questions in a way which minimises the possibility of the industrial action eventually taken falling outside the action authorised by the ballot, and said:
“If the ballot questions describe industrial action in a general way it might subsequently be held that specific types of industrial action were not authorised. No doubt, for that reason, a number of bargaining representatives have drafted ballot applications containing very detailed questions.”34’
The Bench further clarified that for the purposes of the protected action ballot order under s.437 if the questions are identified in the character of industrial action and can be answered with a “yes” or a “no” by the employees engaging in the ballot then it meets the requirements. For the purposes of s.437 there is “no requirement for legalism, technicality or pedantry in the drafting or analysis of such questions.”[9] Consideration of whether the industrial action is as defined by s.19 is relevant when considering other sections of the act such as s.414.
On this basis, while Ikon may have an arguable point about the scope of the proposed questions, it is not the purpose of a s.437 application to assess the legalities or technicalities of the proposed questions. I observe from the proposed questions that a response of either ‘yes’ or ‘no’ has been met.
The other objection is on the basis that the application is premature. It is not contended that the UWU is failing to meet the good faith bargaining requirements; in any event such matters would attract a different application, but rather it is contended that the application is premature. The UWU submit they have attempted to bargain since April 2023 and even though there have been 2 recent bargaining meetings the response to the group of claims and in particular the response to the wage claim demonstrates an impasse in negotiations. The UWU submit they have been and are genuinely trying to reach agreement.
Ikon submits that the application is premature in the context that the meetings held were on 17 October and 14 November 2023 and the most recent log of claims of 23 October 2023 is yet to be responded to in full so insufficient time has passed to enable a review of their position prior to the next scheduled meeting. I observe that issues and claims remain in consideration. In fact, on assessment of the materials, while there have been only 2 bargaining meetings, the claims and issues have been articulated, progress has been made and a further meeting has been scheduled for 14 December 2023. Ikon does challenge the UWU’s genuineness in its bargaining approach, but I do observe that the positions of the parties have been articulated clearly, bargaining has produced progress on the claims and there has been and is a commitment to bargaining meetings. While the strategy may be objectionable to Ikon for the reasons raised, it is not an indication that the UWU is not genuinely trying to reach agreement.
It is up to the parties to determine their bargaining strategy, there are no rigid rules[10] and while the concerns of Ikon regarding timing and the content of a bulletin may even have some merit, the conduct is not an indication that the UWU is not genuinely trying to reach agreement.
In respect to the UWU submissions that negotiations are at an impasse, I suspect this not to be the case. It is still early in the process of bargaining with both parties articulating their positions, and I find there is no evidence that a stalemate or impasse has been reached. In any event there need not be an impasse to make a protected action ballot order.
Section s.443 of the Act is not discretionary. In respect to s.443 (1), the Commission must make an order if the application is made under s.437 and that the UWU is genuinely trying to reach agreement. Evidence before me is that both the requirements have been met, therefore the order must be made.
On the material before me, including the statement of Nicholas Richardson and the Form F34B setting out the steps taken by the UWU in bargaining with Ikon and that it has been, and is, genuinely trying to reach agreement with Ikon, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.
The ballot is to be conducted by Democratic Outcomes Pty Ltd Trading as CiVS.
For the purposes of s.443(3)(c) and s.448A(2) of the Act, the Commission has determined that the date by which voting is to close is 11 December 2023.[11] This also establishes the ballot period for the purpose of s.448A(2) of the Act.
An order has been separately issued in PR768523.
A further listing will be sent out from my Chambers scheduling a s.448A conference. I will issue the Order requiring attendance at the conference and as the parties have scheduled their bargaining meeting it ought to take place. Directions for the conference will be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.
COMMISSIONER
Appearances:
Mr T Whiteside for the Applicant
Ms R Frenzel for the Respondent
Hearing details:
Tuesday 21 November 2023
[1] Email from Michael Hoang General Manager – People and Culture on 20/11/2023 at 3.03pm.
[2] Email from Michael Hoang General Manager – People and Culture on 20/11/2023 at 5.06pm.
[3] Applicant’s Submissions in Reply, para 41.
[4] Submissions of the Respondent sub para 1(d).
[5] [2014] FCA 1119, [23] – [24].
[6] John Holland Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) [2010] FWAFB 526 (Giudice J, Watson SDP, Blair C, 29 January 2010) at para. 19, [(2010) 194 IR 239].
[7] Total Marine Services Pty Ltd v Maritime Union of Australia [2009] FWAFB 368 (Watson VP, Hamberger SDP, Roberts C, 9 October 2009).
[8] National Tertiary Education Industry Union v Curtin University[2022] FWCFB 204 (14 November 2022).
[9] Ibid at [53].
[10] Total Marine Services Pty Ltd v Maritime Union of Australia[2009] FWAFB 368.
[11] This is, in effect, 10 working days from the estimated Commencement Date of the ballot, as sought in the application.
Printed by authority of the Commonwealth Government Printer
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