[2009] FWA 221 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
VICE PRESIDENT WATSON |
MELBOURNE, 7 SEPTEMBER 2009 |
Proposed protected action ballot by employees of FreshExchange Pty Ltd – whether question is ambiguous – need for question to be unambiguous – Fair Work Act 2009, ss 436, 437, 443.
Introduction
[1] This decision relates to an application by the National Union of Workers—New South Wales Branch (NUW) for an order under s 437 of the Fair Work Act 2009 (the Act) for a protected action ballot order.
[2] At the hearing before me on 3 September 2009 Mr Mueller appeared with Mr Cain and Mr von Richthofen for the NUW. There was no appearance on behalf of the employer, FreshExchange Pty Ltd.
[3] The application seeks an order that a ballot be held of NUW members employed by FreshExchange who would be covered by a proposed collective agreement. A statement made by an NUW organiser Mr Cain and filed in the proceedings indicates that the NUW membership at FreshExchange includes storage service employees and the NUW has been conducting negotiations for a new agreement covering employees presently covered by the Produceone Growers and Packers Collective Agreement 2006.
[4] The application seeks that the following question be put to employees:
“In support of reaching a union collective agreement with your employer do you support the taking of protected industrial action against your employer which may involve one or more of the following: 1 hour stoppages of work; 2 hours stoppages of work; 3 hours stoppages of work; 4 hours stoppages of work; 8 hours stoppages of work; 12 hours stoppages of work; 24 hours stoppages of work; 48 hours stoppages of work; 72 hours stoppages of work; strikes for a period of one week; indefinite strikes; indefinite or periodic bans on overtime of storage service employees who are members of the National Union of Workers, New South Wales Branch engaged at the Arndell Park Site”
[5] At the hearing of the matter I raised concerns with the NUW that the question proposed to be put to employees could be said to be ambiguous and that ambiguity would be overcome if the question was asked as a series of questions by reference to each form of proposed industrial action. The NUW declined to modify the question and submitted that the question is not ambiguous.
Relevant Legislation
[6] Protected action ballots are governed by Chapter 3, Part 3-3, Division 8 of the Act. The object of this Division is expressed as follows:
“436 Object of this Division
The object of this Division is to establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement.
Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.”
[7] Section 437(3) provides:
“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.”
[8] Section 443(1)-(3) 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).
(3) A protected action ballot order must specify the following:
(a) the name of each applicant for the order;
(b) the group or groups of employees who are to be balloted;
(c) the date by which voting in the protected action ballot closes;
(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.”
The Requirement for Clarity
[9] These provisions are similar but not identical to the corresponding provisions of the Workplace Relations Act 1996. In relation to those provisions a Full Bench of the Australian Industrial Relations Commission in Country Fire Authority v United Firefighters’ Union of Australia said:
“As noted above, the requirement in s.452(1)(a) is that the application for a protected action ballot must include the question or questions to be put to the relevant employees in the ballot, including the nature of the proposed industrial action. If industrial action is approved by a secret ballot, and all other pre-requisites for protected action are present, a written notice to the employer of intended industrial action is required to state the nature of the intended action and the day when it will begin (see s.441(6)). It was submitted by Mr. Parry SC, who appeared with Mr O’Grady for the CFA, that the use of the same words in s.441(6) and s.452(1) requires a similar approach - albeit that the notices are directed on the one hand to an employer, and on the other, to employees. As a matter of construction we believe this is correct. Further, while the intention of the legislature can only be gleaned from the provisions of the legislation in this case, 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.” 1
[10] In my view the legislation requires an application to propose a question and contain other details about the industrial action and other relevant matters such as will permit employees to make an informed choice on whether to authorise the particular action specified in the question. A question which is ambiguous or does not permit such a result does not comply with the requirements for a valid application.
Conclusions
[11] In my view the proposed question to be put to employees is ambiguous. Employees are proposed to be asked whether they support one or more of twelve specified forms of industrial action. An employee may support some but not all of the twelve forms of industrial action specified in the question and therefore may reasonably answer YES to the question. A positive vote would ostensibly provide authorisation for all twelve forms of industrial action. Yet in reality a majority of members may not support some or any of the twelve forms of industrial action. Hence authorisation may be thought to have been given when the majority of union members do not in fact support the particular action.
[12] In my view the confusion created by the wording of the question arises from the mixing of notions of authorisation on the one hand and taking industrial action on the other. What is apparently being sought is authorisation for all twelve forms of industrial action. But because the union apparently does not propose to organise and take all twelve forms of industrial action it has sought to convey the limited practical application of the action by the use of the phrase “one or more” in the question. The mixing of these notions has resulted in a misleading and ambiguous question which cannot, in my view, lead to the views of employees who vote on the question being expressed in the ballot.
[13] For these reasons I do not believe that the question is expressed in sufficiently clear terms to enable employees to make an informed choice on the industrial action they are asked to authorise. Therefore the requirements of s 437 are not satisfied. Further, the notion that employees may authorise industrial action which a majority do not in fact support is inconsistent with the object of Division 8.
[14] I am also concerned that the order sought does not describe with sufficient particularity the class of employees who are eligible to vote in the ballot.
[15] I decline to make the ballot order in the form sought. If the NUW remedies the defects I have identified I would otherwise grant the application. The question should either be expressed as a series of questions which ask whether each separate form of industrial action is approved, or the words “one or more” are replaced with “all” so that employees are asked whether they approve of all of the forms of industrial action. As Mr Mueller conceded, if an employee does not support all forms they should vote no to the question in the latter form. An amendment in either of the terms outlined would ensure that employees are likely to understand precisely what they are being asked to authorise.
[16] The NUW should provide an amended draft order to the employer and Fair Work Australia by 5pm on Wednesday 9 September 2009.
VICE PRESIDENT WATSON
Appearances:
Mr S. Mueller for the National Union of Workers—New South Wales Branch
Hearing details:
2009 Sydney September 3
1 (2006) 158 IR 120 at [20]. See also National Union of Workers v Blue Circle Transport Pty Ltd PR973654 at [40]; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Woolworths Limited PR973708 at [16]-[29]; Construction, Forestry, Mining and Energy Union v Caelli Constructions (Vic) Pty Ltd [2009] AIRC 543 at [27]-[32].
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