Westnet Energy Services Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

[2010] FWA 3364

[2010] FWA 3364

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.

Westnet Energy Services Pty Ltd
v
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2010/3369)

DEPUTY PRESIDENT MCCARTHY PERTH, 27 APRIL 2010

Industrial action – whether industrial action protected industrial action.

Background

[1] On 7 April 2010, Westnet Energy Services Pty Ltd (“the Applicant”) lodged an Application for an order to stop industrial action (“the Application”). The industrial action was approved in a ballot result declared on 26 March 2010. A Ballot Order was issued by Fair Work Australia (“FWA”) on 10 March 2010 (“the Ballot Order”).

[2] The Ballot Order stated the questions to be asked as follows:

“Do you, for the purpose of advancing claims in the negotiation of an enterprise agreement and Westnet Energy Services Pty Ltd, authorise industrial actionin the form of:

1. Twenty-four (24) hour stoppages of work which may be organized or engaged in for consecutive periods?	Yes / No
2. Bans on the working of overtime?	Yes / No
3. Seven (7) day stoppages of work which may be organized or engaged in for consecutive periods?	Yes / No
4. Two (2) hour duration stop work meetings which may be organized or engaged in for consecutive periods?	Yes / No
5. One (1) hour stop work meetings which may be organized or engaged in for consecutive periods?	Yes / No
6. Stoppages of work four (4) hours in duration which may be organized or engaged in for consecutive periods?	Yes / No
7. Bans on administrative work and record keeping which may be organized or engaged in for consecutive periods?	Yes / No
8. Bans on the performance of call out work?	Yes / No
9. Bans on taking instructions from the employer, unless that instruction is in writing?	Yes / No
10. Bans on the use of mobile phones?	Yes / No
11. Bans on taking work vehicles home?	Yes / No
12. Returning to the depot after each job has been performed?	Yes / No”

[3] On 30 March 2010 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”) issued the Applicant with a Notice of intention to take industrial action (“the Notice”). The Notice stated that the nature of the industrial action was:

(a) a ban on the performance of overtime continuing indefinitely;

(b) a ban on the performance of call out work continuing indefinitely; and

(c) a work stoppage of up to two hours duration starting at 7.45am.

[4] The Applicant asserted that the Notice does not notify the employee claim action as defined in s.409(1) of the Fair Work Act 2009 (“the FW Act”). Therefore they argue the proposed industrial action is not protected action.

[5] I heard the Application on 7 and 8 April 2010 and issued an order dismissing it on the latter date. I indicated at the time that I would provide written reasons. These are those reasons.

The Grounds

[6] The grounds argued by the Applicant in support of the Application included:

“


• Neither the Application nor the Ballot Order specify questions permitting the combination of industrial action notified in the Notice. Accordingly, the industrial action notified by the Notice is not authorised by a protected action ballot as required by ss 409(2) and 459(1)(a) and, therefore, is not protected industrial action.

• Further and alternatively, in that the Notice specifies that a ban on overtime or the performance of call-out work will be taken indefinitely, such action constitutes consecutive bans; neither of questions 2 or 8 of the questions that were put to the Employees specifying such (compare question 7 of the questions put to Employees) and, therefore, the industrial action notified by the Notice is not authorised by the Ballot Order and is not protected industrial action by reason of ss 459(1)(a).

• Further and alternatively, in that the Notice specifies that a ban on overtime or the performance of call-out work will be taken indefinitely, such action contemplates bans on overtime or the performance of call-out work of varying durations; neither of questions 2 or 8 of the questions that were put to the Employees specifying that such could be taken and, therefore, the industrial action notified by the Notice is not authorised by the Ballot Order and is not protected industrial action by reason of s 459(1)(a).

• Further, in that the proposed work stoppage is notified as a component of “the industrial action” in the Notice, the proposed work stoppage is not severable from “the industrial action” and is, therefore, not protected action.

• Further and alternatively, the Notice supports an inference that, as at the date of the Application, the CEPU intended that the industrial action notified in the Notice be in the combination notified, and include consecutive bans on overtime and call outs. In that the Application did not specify this, the Company contends that the Application was not one that was made in accordance with s 437(3)(b) and, therefore, could not have satisfied FWA as being an Application that was made under s 437, as required by s 443(1)(a). Accordingly, the ballot undertaken pursuant to the Ballot Order cannot be regarded as a protected action ballot for the purposes of s 409(2) and the industrial action notified in the Notice is not protected industrial action.”

[7] Essentially the arguments of the Applicant centred around three contentions;

(i) that the ballot did not authorise different types of industrial action to be taken simultaneously;

(ii) that an indefinite ban on the working of overtime was in effect a ban that covered consecutive periods which had not been approved by the ballot; and

(iii) an indefinite ban on the performance of call out work was in effect a ban that covered consecutive periods which had not been approved by the ballot.

Consideration

[8] The approach I have taken in this matter is to apply the ordinary meaning of the words in the ballot, having regard to the context and purpose of the questions. The context here is what an employee of the Applicant would have reasonably understood the questions to mean and whether the industrial action in the Notice is consistent with the questions posed in the Ballot Order.

[9] The first assertion by the Applicant is that the Ballot Order did not envisage the ability to take different forms of industrial action to be taken in combination. To accept that argument it would mean that there could be a ban on the working of overtime but not a ban on the performance of call out work at the same time.

[10] That is not a reasonable view of what the Ballot Order authorised. It was not necessary in my view for the Ballot Order to specify that some of the types of industrial action could be taken in conjunction as it is common sense that there would be a likelihood that there would be a combination of the invoking of different types of bans at the one time. That approach would be consistent with the general understanding that a reasonable person would have of what was being voted upon, and there is no good reason to believe that the practices and experiences at the Applicant’s operations would be any different to that general understanding. It cannot in my view be inferred or imputed into the form of questions that either of the forms of industrial action in the Notice excluded the other.

[11] I therefore do not agree that the forms of industrial action of the type contained in the Notice could only be taken separately.

[12] Indeed the type of industrial action in the Notice on this occasion could arguably be only an invocation of the industrial action approved by question 2 of the ballot questions as a failure to respond to a callout, and could also be described as a ban on the working of overtime.

[13] I also do not agree with the Applicant's contention that the Ballot Order authorised an indefinite ban on either the working of overtime or the working of callouts. The ordinary meaning which I consider a reasonable person would have understood the use of the word “bans” in the questions posed meant a ban, a series of bans, an indefinite ban, periodic bans, or a combination of all. In my view that is what a reasonable person would understand the question posed to mean and the options for the invoking of the bans provided all or any of those options. Again there are no practices or experiences of the Applicant that cause me to apply any different approach.

[14] It is for these reasons that I considered the industrial action was protected action and dismissed the Application.

DEPUTY PRESIDENT

Appearances:

Mr T Caspersz of counsel for Westnet Energy Services Pty Ltd

Mr L Edmonds for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

Hearing details:

Perth.

2010:

April, 7 and 8.

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