[2008] AIRC 135 |
PR980656
|
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.496(1) application for order against industrial action (federal system)
City of Wanneroo
and
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union-Western Australian Branch
(C2008/2002)
Local government administration | |
COMMISSIONER WILLIAMS |
PERTH, 13 FEBRUARY 2008 |
Industrial action amongst employees of the City of Wanneroo.
REASONS FOR DECISION
[1] This application was filed by the City of Wanneroo (the applicant) at approximately 4.50pm on Friday 1 February 2008. The applicant sought an order under s.496 of the Workplace Relations Act 1996 (the Act). It was allocated to myself and listed for hearing at 11.30am on Sunday 3 February 2008.
[2] At the hearing the City of Wanneroo was represented by Mr Blackburn of Counsel and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (the respondent) was represented by Mr Talbert.
[3] Following the conclusion of submissions and after an adjournment I issued my decision on transcript in this matter and dismissed the application. What follows are the reasons for my decision.
Background
[4] On Tuesday 29 January 2008, the respondent served a ‘Notice of intention to take protected industrial action’ under s.441 of the Act (the Notice), by its members employed by the applicant. This action was to commence at 6.00am on Monday 4 February and continue until 6.00am on Thursday 7 February 2008. The notice indicated that the members would engage in stoppages of work and bans on ‘call outs’ and ‘call backs’ as set out below;
Nature of intended protected action:
1. A stoppage of all work in the City of Wanneroo depot by members of the AMWU for a duration of 24 hours commencing at 6.00 am on Monday 4 February 2008 until 6.00 am on Tuesday 5 February 2008.
2. A stoppage of all work in the City of Wanneroo depot by members of the AMWU for a duration of 24 hours commencing at 6.00 am on Tuesday 5 February 2008 until 6.00 am on Wednesday 6 February 2008.
3. A stoppage of all work in the City of Wanneroo depot by members of the AMWU for a duration of 24 hours commencing at 6.00 am on Wednesday 6 February 2008 until 6.00 am on Thursday 7 February 2008.
4. A ban on call-out and call-backs by members of the AMWU for a duration of 24 hours commencing at 6.00 am on Monday 4 February 2008 until 6.00 am on Tuesday 5 February 2008.
5. A ban on call-out and call-backs by members of the AMWU for a duration of 24 hours commencing at 6.00 am on Tuesday 5 February 2008 until 6.00 am on Wednesday 6 February 2008.
6. A ban on call-out and call-backs by members of the AMWU for a duration of 24 hours commencing at 6.00 am on Wednesday 6 February 2008 until 6.00 am on Thursday 7 February 2008.
[5] The employees concerned were maintenance people and mechanics who maintain the applicant’s vehicle fleet and, in particular, its waste trucks.
[6] In this matter the applicant argued that the issue to be determined is whether the industrial action to be taken will be protected action and that this will depend on or whether the proposed industrial action was authorised by the previously held protected action ballot.
The Legislation
[7] In this matter the Commission is required to decide the application under s.496 of the Act. The relevant subsection is s.496(1) which provides that:
(1) If it appears to the Commission that industrial action by an employee or employees, or by an employer, that is not, or would not be, protected action:
(a) is happening; or
(b) is threatened, impending or probable; or
(c) is being organised;
the Commission must make an order that the industrial action stop, not occur and not be organised.
[8] The term “industrial action” is defined in s.420 of the Act as follows:
(1) For the purposes of this Act, industrial action means any action 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;
but does not include the following:
(e) action by employees that is authorised or agreed to by the employer of the employees;
(f) action by an employer that is authorised or agreed to by or on behalf of employees of the employer;
(g) action by an employee if:
(i) the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
[9] The effect of a protected action ballot on industrial action that is subsequently taken is provided for in s.478 of the Act:
(1) Industrial action is authorised by a protected action ballot if:
(a) the action was the subject of a protected action ballot; and
(b) at least 50% of persons on the roll of voters for the ballot voted in the ballot; and
(c) more than 50% of the votes validly cast were votes approving the action; and
(d) the action commences during the 30-day period beginning on the date of the declaration of the results of the ballot.
Note: Industrial action must be authorised under this Division if it is to be protected action under Division 3 (unless the action is in response to industrial action by the employer) – see section 445.
[10] A protected action ballot is to determine whether proposed industrial action is supported as provided for in s.451(1) of the Act which states that:
451 Who may apply for a ballot order etc.
When application can be made
(1) A person referred to in subsection (3) may, during a bargaining period, apply to the Commission for an order for a ballot to be held to determine whether proposed industrial action has the support of relevant employees.
[11] The questions that the employees are to decide upon in the ballot include the nature of any industrial action, as required by s.463(1)(g). This section provides that:
463 Matters to be included in order
(1) An order for a protected action ballot to be held must specify the following:
(a) the name of:
(i) if the applicant is an organisation of employees – the organisation; or
(ii) if the applicant is an employee, or a group of employees, represented by an applicant’s agent – the applicant’s agent; or
(iii) if the applicant is an employee, or a group of employees, not represented by an applicant’s agent – the employee or employees;
(b) the types of employees who are to be balloted;
(c) the voting method;
(d) the timetable for the ballot, including:
(i) the day on which the roll of voters is to close, which must be a day at least 2 working days before the day on which the ballot is to be held, or is to start to be held; and
(ii) the day on which the ballot is to close, and the time (the voting closing time) on that day by which votes must be received (if the order specifies a postal ballot) or by which votes must be cast (if the order specifies an attendance ballot);
(e) the name of the person authorised by the Commission to conduct the ballot;
(f) the name of the person (if any) authorised by the Commission to be the independent adviser for the ballot;
(g) the question or questions to be put to the relevant employees in the ballot, including the nature of the proposed industrial action.
Note 1: Section 480 specifies who may be authorised by the Commission to conduct protected action ballots.
Note 2: Section 481 specifies who may be authorised by the Commission to be the independent adviser for a protected action ballot.
The Issue
[12] The applicant argues that given the existence of the ‘Notice of Intended Industrial Action’ the Commission can be satisfied that industrial action by the employees is threatened, impending or probable and is being organised.
[13] The applicant is also the employer of the relevant employees. If the employees carry out the threatened action, the applicant’s ability to maintain its vehicle fleet and, in particular, its waste trucks will be affected, with consequent disruptions to its waste collection and other services. Therefore, the applicant is a person likely to be affected by the industrial action and as such has standing to bring this application.
[14] The applicant submits that the only contentious issue in this application is whether the industrial action will be protected action.
[15] The respondent acknowledges the above and I agree that this is the issue for the Commission to determine in this application.
The Applicant's Submissions
Whether the industrial action is protected
[16] The applicant submitted that industrial action taken during a bargaining period for the purpose of supporting or advancing claims made in respect of a proposed Collective Agreement (as the applicant concedes is the case here) is not protected action unless:
“the action has been authorised by a protected action ballot (see section 478), pursuant to s.445(f) of the Act (or it is in response to industrial action by the employer, which is not the case here).”
[17] Industrial action is authorised by a protected action ballot if, among other things:
(a) the action was the subject of a protected action ballot; and
(b) at least 50% of persons on the roll of voters for the ballot voted in the ballot; and more than 50% of the votes validly cast were votes approving the action; …" s.478(1).
[18] The applicant submitted that the action referred to in s.478(1)(a) refers to the industrial action which was the subject of a protected action ballot and, in particular, the proposed industrial action put to the employees by way of each question. The applicant cited the decision in United Collieries Pty Ltd v CFMEU 1 in this respect.
[19] The applicant maintained that the purpose of a protected action ballot pursuant to s.451(1) is "to determine whether proposed industrial action has the support of relevant employees.” The questions put to employees must therefore include "the nature of the proposed industrial action” pursuant to s.452(1)(a), s.463(1)(g), and s.474(d) of the Act.
[20] The applicant contended that the question(s) must be clear and unambiguous. As the Full Bench observed in Country Fire Authority v United Firefighters' Union of Australia 2 at [20]:
"it appears logical that when employees are asked whether to authorise industrial action in a protected action ballot, the nature of the proposed industrial, action is expressed clear enough to enable them to make an informed choice.”
[21] And again at [31]:
"The description of the nature of the industrial action in the questions they are asked in the ballot should enable employees to understand the implications for them . . .”
[22] The applicant submitted that the legislative provisions and the decision in Country Fire Authority v United Firefighters’ Union of Australia 3 emphasise the need for clarity in the questions put to employees, so that the employees can make an informed choice whether to authorize particular types of action. But if these provisions are to operate in the way Parliament intended, it is just as important that any industrial action which is subsequently organised goes no further than is authorised by the ballot. Otherwise the legislative purpose of allowing the employees directly concerned to decide for themselves whether to take particular industrial action will be frustrated.
[23] In this matter, three questions were put to the employees and answered in the affirmative: 4
Question 1 proposed industrial action "in the form of an unlimited number of stoppages of 12 hours duration.
Question 2 proposed industrial action "in the form of an unlimited number of stoppages of 24 hours duration.
Question 3 proposed industrial action "in the form of an unlimited number of bans on call outs and call backs for a period of 24 hours duration.
[24] The applicant argued that from this it can be seen:
(a) that the question distinguished between 12 and 24 hour stoppages; and
(b) that no question sought support for a 72 hour stoppage or a 72 hour ban on call outs and call backs.
[25] Nonetheless, the applicant argued that the respondent’s Notice indicates that its members will stop work and implement a ban on call outs and call backs from 6.00am on Monday 4 February until 6.00am Thursday 7 February 2008 (a period of seventy-two hours).
[26] The applicant contended that the respondent has attempted to avoid the limitations in the ballot (which authorised only twelve or twenty-four hour stoppages, and only twenty-four hour bans on call outs and call backs), by the contrivance of describing what is in substance a seventy-two hour stoppage and a seventy-two hour ban on call outs and call backs as:
(a) 3 consecutive 24 hour `stoppages; and
(b) 3 consecutive 24 hour bans on call outs and call backs.
[27] The question is whether the industrial action referred to in the Notice was "the subject of the protected action ballot and, in particular, the proposed industrial action put to the employees by way of each question,” 5 because it will only be protected action under s.478(1) of the Act if it was.
Whether the intended action was authorised by the ballot
[28] The applicant submitted that there are several reasons why it may be said the action threatened in the Notice is not action authorised by the ballot.
Ordinary meaning of `stoppage’
[29] Firstly, the applicant contended that ballot questions 1 and 2 do not refer to "withdrawals of labour" or "refusals to attend for work.” The questions instead refer to “stoppages” of twelve or twenty-four hours duration.
[30] The Macquarie Dictionary Online 2008 relevantly defines "stoppage " as:
1. the act of stopping; cessation of activity, etc. ….
4. a cessation of work as a protest; strike: a twenty-four hour stoppage.
[31] Accordingly, by definition, work cannot stop or cease unless it is being carried on in the first place.
[32] The applicant argues that the Notice gives notice of what are described as three consecutive “stoppages,” with the second and third “stoppages” to begin at the precise moment that the previous “stoppage” ends. However, the second and third “stoppages” are not separate stoppages at all because, at the time they are to commence, no work is being carried on – so that there is nothing that can then be said to stop.
Action exceeds 24 hours in duration
[33] Secondly, the applicant submitted that while the first stoppage is properly described as a stoppage, unless work resumes at the end of twenty-four hours, it will not be a stoppage "of 24 hours duration." If employees do not return to work until 6am on Thursday 7 February 2008 it will be a stoppage of seventy-two hours duration. Accordingly, it also will be outside the terms of the ballot and be unprotected.
[34] The applicant noted that the respondent has sought to describe the action as consisting of three separate stoppages to avoid the twenty-four hour limitations in the ballot. The applicant maintained that the Commission must look at the substance and not merely the form of what is contained in the Notice. In truth, what is threatened in the Notice, regardless of how it is sought to be described, is one seventy-two hour stoppage. Had the union wanted to obtain authority for a seventy-two hour stoppage, it could easily have done so.
[35] In the same way, the proposed bans on call outs and call backs are in substance one seventy-two hour ban. Accordingly, they too will be outside the terms of the ballot and be unprotected.
Ballot refers to 12 and 24 hour action but not 72 hour action
[36] Thirdly, the applicant submitted that the ballot should not be construed as authorising action of seventy-two hours duration and this is strongly supported by the inclusion in the ballot of separate questions seeking authorisation for twelve and twenty-four hour stoppages and twenty-four hour bans.
[37] The inclusion of separate questions dealing with twelve and twenty-four hour stoppages indicates that a twelve hour stoppage was considered different in nature from a twenty-four hour stoppage and that employees were intended to have a choice of authorizing either twelve hour stoppages or twenty-four hour stoppages or both.
[38] In United Collieries Pty Ltd v CFMEU 6 Gyles J, referring to a ballot which included separate proposals for shift length, twenty-four hour and seven day stoppages, stated that:
"In my opinion each separate question in the ballot relates to a different kind and nature of industrial action. That conclusion is consistent with the requirements of s.452 and s.463(1)(g) providing for the posing of a question or questions including the nature of the proposed action."
[39] Viewed objectively, an employee faced with two questions asking whether he or she supported twelve or twenty-four hour stoppages would have had no reason to suppose that the union would call a seventy-two hour stoppage.
[40] Similarly, an employee faced with a question asking the employee to authorise a twenty-four hour ban on call outs and call backs would have had no reason to suppose that the union would call a seventy-two hour ban.
[41] In each case, the employee would logically have expected that if the union wished to call a seventy-two hour stoppage or ban, it would have inserted a question to that effect - as it had done for both twelve and twenty-four hour stoppages.
[42] By expressly including questions proposing twelve and twenty-four hour stoppages and twenty-four hour bans, and by failing to include a question proposing seventy-two hour stoppages and/or bans, the framers of the ballot questions evinced an intention not to seek authorization for seventy-two hour stoppages and/or bans.
Legislative context
[43] Fourthly, the applicant submitted that it is only the applicant’s approach which is consistent with the scheme and object of the secret ballot provisions of the Act. That is a relevant consideration because the legislative scheme forms part of the objective framework of facts within which the ballot questions came into existence and to which regard may be had in construing those questions.
[44] The legislative provisions are intended to allow the employees directly concerned to decide for themselves (subject to a majority vote) whether, and to what extent they wish to authorise and engage in industrial action. As part of that process there is a requirement for ballot questions to be sufficiently clear to enable employees to understand the implications for them so that they can make an informed choice; Country Fire Authority v United Firefighters’ Union of Australia. 7
[45] The statutory objectives of industrial democracy and informed choice would be defeated if unions were permitted to play fast and loose with ballot results and apply them in ways that, on an objective analysis, were not intended and would not have been understood at the time of the ballot.
[46] The importance of employees being able to understand the extent and, particularly, the duration of the industrial action they are being asked to authorise was considered by Senior Deputy President Richards in AMWU v Woolworths Limited. 8
[47] While the applicant was not concerned here with the framing of the ballot questions, the applicant raised concerns with their interpretation. The applicant argued that an approach which allows a union to use an authorization for twelve hour stoppages as the basis for stoppages of twenty-four hours, seven days or even longer would make a mockery of the statutory ballot process, the democratic objectives of Division 4 of Part 9 and the requirement for employees to have an informed choice.
[48] In this case such outcomes can be avoided by:
(a) construing the ballot questions as permitting stoppages and bans of only twenty-four hours duration following which normal work must recommence; and
(b) holding that the stoppages and bans threatened in the Notice of Action are, in substance, stoppages and bans of seventy-two hours duration and therefore not authorized by the ballot.
[49] That being the case, the applicant contended that the impending industrial action is not protected action and an order from the Commission under s.469 should issue.
The Respondent's Submissions
[50] The respondent submits that the union has merely responded to the employee’s decision to support industrial action in this matter. The respondent stated that the union progressed the postal ballot application in accordance with the Act and Regulations; and that one hundred percent of the ballots were returned and one hundred percent of the ballots approved the industrial action that was set out in the ballot papers.
[51] The questions on the ballot enquired whether the employees supported an unlimited number of stoppages of twelve hours or twenty-four hours. The ballot paper did not state that any twenty-four hour stoppage would be separate or isolated from another twenty-four stoppage.
[52] With respect to the idea that the employees had to be working before they can have a stoppage the respondent argues that this is nonsense as it would mean that where employees work Monday to Friday and not on weekends they would not be able to engage in a stoppage on Monday because they didn't work on the Sunday before the Monday. Or similarly, acceptance of the applicant’s argument would mean that if employees work from 9.00am to 5.00pm, then because they do not work before 9am they cannot have a stoppage of work that commences at 9.00am.
[53] The respondent was of the view that the sequence of three consecutive twenty-four hour stoppages did not inevitably mean the industrial action would run to seventy-two hours, because if, during that period, there was an initiative which allowed the parties to reach agreement then stoppage would not continue.
Consideration
[54] The argument advanced by the applicant was that the industrial action to be taken, as set out in the Notice provided by the respondent on 29 January 2008, is industrial action not consistent with the particulars of the questions that were considered by the employees of the City of Wanneroo in the secret ballot. Therefore, that industrial action would not be protected action within the meaning of the Act. If this view is correct, then because that action is being organised and pending or probably, the Commission would be obliged to issue an order that that industrial action stop, not occur and not be organised.
[55] The applicant says in particular that the words used in the ballot question approved by the employees refer to “stoppages” of either twelve hours or twenty-four hours duration. The applicant argues that because of the consecutive nature of the proposed stoppages, that the second and third stoppages on the Tuesday and Wednesday cannot be categorised as stoppages authorised by the ballot process because immediately before each stoppage begins, no work is being carried out.
[56] The respondent is of the view that that interpretation of the word “stoppage” is not reasonable.
[57] In considering my decision, I have noted the comments of the Full Court of the Federal Court in David’s Distribution Pty Ltd v National Union of Workers (David’s Case) 9 When considering the predecessor to s.441(6), which was s.170MO(5), the Court said:
"[88] It will be apparent we think it necessary, and sufficient, for parties to describe the intended action in ordinary industrial English; for example, 'an indefinite strike of all employees', 'a lockout of all employees employed in the AB fabrication plant', 'a ban on overtime', 'a ban of the use of MN equipment', 'rolling stoppages throughout the mine', 'a ban on the servicing of delivery vehicles'." (emphasis added)
[58] This passage was quoted with authority by the Full Bench in Country Fire Authority v United Firefighters ' Union of Australia. 10
[59] I note the reference in David’s Case to an approach based on ordinary industrial English. I also note one phrase given as an example was of “rolling stoppages”. Applying the applicant’s interpretation of the word stoppage - that work is required to be happening before an employee can begin a stoppage - would mean that it is not possible to have “rolling” stoppages at all.
[60] Applying an ordinary industrial English interpretation to the word “stoppage” I have concluded that I do not accept the narrow interpretation that the applicant relies upon. I do not think that this reflects the ordinary industrial English meaning of the word stoppage. I am of the view that, objectively considered, the industrial action proposed in the notices provided by the respondent is consistent with the questions affirmed by the employees in the secret ballot process. I reject this first ground for the application.
[61] The second ground of the application relied upon is the fact that the action notified of by the respondent involves a stoppage of seventy-two hours duration, which exceeds the maximum of twenty-four hour duration that was dealt with in the questions affirmed by the employees in the secret ballot.
[62] The third ground for this application is that the inclusion of a separate question in the secret ballot process dealing with twelve and then twenty-four hour stoppages indicates a clear distinction between these two and that this point strongly supports the conclusion that the ballot should not and could not be construed as having authorised industrial action for a continuous seventy-two hour period.
[63] With respect to both of these arguments which the respondent opposes, I note that the questions put to the employees were all such that they were prefaced with the words “an unlimited number” before the words twelve or twenty-four hour stoppages, call-outs and bans. I also note that the intended industrial action as set out in the notice provided by the respondent is provided as a series of separate numbered paragraphs and is not expressed as a single stoppage of seventy-two hours.
[64] I do accept that if action set out in the numbered paragraphs 1, 2 and 3 do all occur as provided for, then that will have the practical effect of a stoppage of a continuous period of seventy-two hours.
[65] Whilst I would agree with the applicant's argument if the intended industrial action was for an indefinite continuous stoppage, what is proposed here is a sequence of three consecutive periods of twenty-four hour stoppages only. The applicant's submissions would deny the employees the option of taking industrial action in any consecutive twelve or twenty-four hour groupings. An example of the flexibility the respondent referred to would be denied the employees.
[66] No evidence was called by either party. No information beyond the argument of the applicant, has been put before the Commission that suggests in any way that the relevant employees do not support the industrial action as proposed.
[67] Objectively viewed I believe that employees who voted in favour of the ballot questions would not be surprised that the union has called three consecutive twenty-four stoppages and bans as the notice proposes.
[68] I am not persuaded that three consecutive twenty-four hour stoppages is a course of action that objectively could not have been envisaged when the particular ballot questions were endorsed. I have the same view with respect to the three consecutive twenty-four hour bans on call-outs and call backs.
[69] I am also not satisfied that the objects of the Division dealing with secret ballots would be defeated, as the applicant suggests, if industrial action as proposed is viewed by the Commission as being consistent with the questions the employees endorsed during the ballot vote.
[70] I am satisfied that the industrial action proposed is consistent with the questions endorsed by the ballot.
[71] Having considered the arguments of the parties I am not satisfied, as I am required to be under s.496, that the industrial action that is being organised is industrial action that will not be protected action. That being the case, I am not required by se.496 of the Act to issue the order as sought by the applicant. Consequently, no such order will issue.
[72] An order dismissing this application [PR980578] was issued on the date of hearing.
BY THE COMMISSION:
COMMISSIONER
Appearances:
J Blackburn of Counsel for the City of Wanneroo
A Talbert for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
Hearing details:
2008.
Perth:
February 3.
Printed by authority of the Commonwealth Government Printer
<Price code C>
1 United Collieries Pty Ltd v CFMEU [2006] FCA 904 at [26].
2 Country Fire Authority v United Firefighters ' Union of Australia [2006] 8 September [PR973841] at [20]
3 See note 2.
4 For further information see Ballot Order PR980366 and Declaration of Result dated 29 January 2008.
5 See note 1 at [26]
6 See note 1 at [15]
7 See note 2 at [20] and [31]
8 AMWU v Woolworths Limited [2006] AIRC 506 [PR973708]
9 Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 at [88].
10 See note 2.