| [2022] FWCFB 204 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.604—Appeal of decision
National Tertiary Education Industry Union
v
Curtin University
(C2022/6562)
VICE PRESIDENT HATCHER |
SYDNEY, 14 NOVEMBER 2022 |
Appeal against decision [2022] FWC 2514 and order PR746016 of Deputy President Binet at Perth on 20 September 2022 in matter number B2022/1394.
Introduction
[1] On 15 September 2022, the National Tertiary Education Industry Union (NTEU) applied for a protected action ballot order under s 437 of the Fair Work Act 2009 (Cth) (FW Act). The application sought that the following questions be put to a vote of the NTEU’s members employed by Curtin University (University), with each question to be answered “yes” or “no”:
“In support of reaching an Enterprise Agreement with Curtin University, do you authorise industrial action against your employer, separately, partially, concurrently and/or consecutively, in the form of:
1. Stoppages of the performance of work of between 5 minutes and 24 hours in duration?
2. Indefinite stoppages of work?
3. A ban on preparation for Curtin University events?
4. A ban on participation in Curtin University events?
5. Making statements explaining why the union is taking industrial action?
6. A ban on attending any physical campus of Curtin University?
7. A ban on responding to phone calls or emails?
8. A ban on working outside your usual hours of work?
9. A ban on the use of Curtin University’s online systems?
10. A ban on attending meetings with supervisors/ managers/ Heads of School/ PVCs/ Senior Executives?”
[2] The application sought that the ballot be conducted by a ballot agent, namely TrueVote Pty Ltd (TrueVote). TrueVote is a company established for the sole purpose of running elections and ballots. Its Managing Director is Mr Stephen Donaldson.
[3] The NTEU’s application was heard by Deputy President Binet on 19 September 2022. On 20 September 2022, the Deputy President issued her decision in the matter. 1 The Deputy President made a protected action ballot order under s 443 of the FW Act,2 but the order omitted the last eight of the ten questions proposed in the NTEU’s application. The order also required that the ballot be conducted by the Australian Electoral Commission (AEC) rather than TrueVote, as proposed by the NTEU.
[4] On 23 September 2022, the NTEU lodged an appeal against the Deputy President’s decision and order. The appeal was heard by us on 24 October 2022. On 25 October 2022, we issued our decision on the appeal, 3 in which we granted permission to appeal, upheld ground 3 of the appeal, and quashed the decision and order. On a rehearing of the NTEU’s protected action ballot order application, we made an order4 which, for relevant purposes, contained the ten questions proposed in the NTEU’s application (with some drafting modifications to questions (3), (4) and (5) as discussed at paragraph [60] below) and required the ballot to be conducted by TrueVote. We indicated in the decision that we would issue our reasons in due course.
[5] We set out below our reasons for our decision and order.
The statutory scheme
[6] The scheme of enterprise bargaining for which the FW Act provides has, as one of its fundamental features, the right for participants in bargaining to take protected industrial action in prescribed circumstances. Section 415(1) of the FW Act provides that no action lies under any law in force in a State or Territory in relation to protected industrial action unless it has involved or is likely to involve personal injury, wilful or reckless destruction of, or damage to, property or the unlawful taking, keeping or use of property. One species of protected industrial action is “employee claim action” – that is, industrial action taken by employees to support or advance claims in relation to a proposed enterprise agreement that are about, or are reasonably believed to be about, permitted matters (s 409(1)(a)). In order for such industrial action to be protected, it must meet the requirements specified in ss 409, 413 and 414. One of those requirements, in s 409(2), is that the industrial action must be authorised by a protected action ballot.
[7] The requirements and process for the initiation and conduct of protected action ballots are set out in Div 8 of Pt 3-3 of the FW Act. Relevant to this appeal, s 437(1) provides that a bargaining representative of an employee who will be covered by a proposed enterprise agreement 5 may apply to the Commission for an order requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected action for the agreement. Subsections 437(3) and (4) prescribe requirements for the content of the application as follows:
437 Application for a protected action ballot order
…
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
(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.
[8] Section 443 prescribes the circumstances in which the Commission must (and must not) make a protected action ballot order and what must be specified in such an order. The section relevantly provides:
443 When the FWC must make a protected action ballot order
(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.
(2) The FWC 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.
(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.
(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:
(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and
(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.
(5) . . .
[9] Section 444(1) prescribes the circumstances in which the Commission may decide on a “protected action ballot agent” (that is, the person who conducts the protected action ballot: s 12) other than the AEC as follows:
444 FWC may decide on ballot agent other than the Australian Electoral Commission and independent advisor
Alternative ballot agent
(1) The FWC may decide that a person other than the Australian Electoral Commission is to be the protected action ballot agent for a protected action ballot only if:
(a) the person is specified in the application for the protected action ballot order as the person the applicant wishes to be the protected action ballot agent; and
(b) the FWC is satisfied that:
(i) the person is a fit and proper person to conduct the ballot; and
(ii) any other requirements prescribed by the regulations are met.
[10] Section 444(2) provides that the regulations may prescribe the conditions that a person must meet in order to satisfy the Commission that they are a fit and proper person to conduct a protected action ballot and the factors the Commission must take into account in determining whether a person is a fit and proper person to conduct a protected action ballot. Regulation 3.11 of the Fair Work Regulations 2009 prescribes a number of requirements for s 444(1)(b).
[11] For employee claim action authorised by a declared protected action ballot to be protected, an employee’s bargaining representative must notify the employer before the action is actually taken. In this respect, s 414(1) provides:
414 Notice requirements for industrial action
Notice requirements--employee claim action
(1) Before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.
[12] The required period of notice is prescribed by s 414(2). As to the content of the notice, s 414(6) provides:
Notice requirements--content
(6) A notice given under this section must specify the nature of the action and the day on which it will start.
The decision under appeal
[13] In the decision under appeal, the Deputy President first found that it was not in dispute, and she was satisfied, that the NTEU had been and was genuinely trying to reach an agreement with the University. 6 The Deputy President then recorded that the University opposed the NTEU’s application on three grounds:
(1) The nomination of TrueVote as the ballot agent did not meet the requirements of s 444(1).
(2) The NTEU’s proposed questions did not satisfy the requirements of s 437(3)(b).
(3) The information to be provided to the NTEU’s proposed ballot agent in the proposed order went beyond what was reasonably necessary (although the Deputy President noted that this objection fell away if the AEC were the ballot agent). 7
[14] The Deputy President then dealt with the issue of the ballot agent. The Deputy President found that there was insufficient evidence to satisfy her that all the statutory requirements had been met for TrueVote to be appointed as the ballot agent. 8 In this respect, the Deputy President said that Mr Donaldson’s assertions as to his qualifications, work experience, criminal record and qualification to hold a position as a Director were unsupported by any evidence such as a curriculum vitae, police check or references.9 The Deputy President also said that the evidence suggested that TrueVote employs at least three individuals who carry out its ballot functions, but there was insufficient evidence to satisfy her that any of these individuals was a fit and proper person to conduct the ballot or that the requirements of reg 3.11(2)-(6) were met for each individual.10 The Deputy President rejected the University’s submission that the application should, as a consequence of these findings, be dismissed pursuant to s 441(2) because the NTEU had not served its application on the AEC in accordance with s 440, finding that s 440 does not require service upon the AEC if the application specifies an alternative ballot agent.11 The Deputy President said that her view was that any failure to comply with s 440 was not fatal to an application but merely had the consequence of delaying its determination, and concluded on the issue of the ballot agent that, in the absence of the appointment of an alternative ballot agent, the AEC was the default ballot agent.12
[15] The Deputy President then turned to the issue of the questions to be posed in the NTEU’s application. The Deputy President said that s 437(3)(b) requires an application for a protected action ballot order to specify the question(s) to be put to the employees including the nature of the proposed industrial action, and noted that the University submitted that proposed questions (3)-(10) did not adequately specify the nature of the proposed industrial action. The Deputy President then said:
“[61] Section 437 requires that the questions describe the industrial action in such a way that employees are capable of responding to them. To be able to respond the Application should propose questions and contain other details of the industrial action and other relevant matters that will permit employees to make an informed choice whether to authorise the particular action specified in the question.”
(footnotes omitted)
[16] In support of the proposition in the first sentence of the above paragraph, the Deputy President cited in a footnote the Full Bench decision in John Holland Pty Ltd v AMWU and AWU 13 (John Holland) at paragraph [19]. In support of the proposition in the second sentence, the Deputy President cited the decision of a single member in NUW - NSW Branch v FreshExchange Pty Ltd14 (FreshExchange). The Deputy President then quoted the following passage from another single member decision in TWU v Prosegur Australia Pty Ltd15 (Prosegur (1)):
“[20] While a high level of specificity is not required, the ballot questions cannot be so unspecific as to be vague and meaningless. The level of specificity required is one which enables employees who will be voting on the questions to understand what work would not be undertaken and what work would remain to be done. It requires employees to be able to understand the implications for them while at work. The balance to be struck is that employees must be able to understand what it is they are being asked to support in terms of the proposed industrial action and enable them to make an informed choice in that regard.”
[17] The Deputy President then said:
“[63] If the questions are ambiguous or lack clarity, industrial action taken pursuant to the protected action ballot may be found not [to] be protected with adverse consequences for bargaining representatives and their members. A question which is ambiguous or does not permit employees to make an informed choice does not comply with the requirements for a valid protected ballot order application.
[64] It will not normally be the role of the FWC to interfere in the drafting of questions to appear in a protected action ballot order.
[65] However, as noted by the Full Bench of the FWC in [TWU v Prosegur Australia Pty Ltd] [2021] FWCFB 1562 [(Prosegur (2))] at [33]:
‘… there may nonetheless be some cases in which the Commission will not be satisfied that the condition in s 443(3)(d) is met. In those cases where the employer seeks to be heard in relation to an application for a protected action ballot order, the employer may present evidence or other material which demonstrates that, because of the nature of the work that employees perform or some other relevant circumstance, a considered response might not be able to be given by employees to a particular question.’” (footnotes omitted)
[18] In support of the propositions stated in paragraph [63], the Deputy President cited the decision of a single member in AWU v Jadestone Energy (Australia) Pty Ltd 16 (Jadestone) at paragraph [55] in a footnote and, in respect of paragraph [64], cited John Holland.
[19] The Deputy President then pointed to differences in the evidence of witnesses called by the NTEU as to their understanding of certain of the questions, such as:
• whether the ban on events (referred to in questions (3) and (4)) applied to events listed on the University’s website, or those “endorsed” by the University or those “hosted” by the University; 17
• whether the ban on responding to phone calls and emails (question (7)) encompassed physically picking up the phone or selecting the reply function on an email, whether the ban still permitted responding to a message left on voicemail or replying to a separate email chain, or whether the ban prevented any response; 18
• whether the ban on the use of the University’s online systems excluded proprietary software such as Microsoft products or included all computer systems whether customised for the University or generic; 19 and
• how the ban on working outside the usual hours of work (question 8) would apply to employees without usual hours of work. 20
[20] The Deputy President said that question (5) “both on its face, and in the course of cross examination, reveals significant ambiguity” because employees take industrial action, not the union, and the question does not identify what industrial action is proposed or how it would impact on work. 21 The Deputy President then said that questions (3)-(10) “share a common, and in the circumstances of this Application a fatal element of ambiguity” (underlining added) because of the use of the phrase “A ban on …”. In support of this, the Deputy President cited Jadestone as standing for the proposition that the identified phrase is ambiguous and “den[ies] employees the opportunity to make an informed choice about the type of protected action they were voting to take”, and quoted the following passage from paragraph [57] of Jadestone:
“On any objective level, it is difficult to discern whether the questions refer to a singular ban of indefinite duration, a singular ban for a finite period, or a ban for a finite period followed by another ban for a finite period (that is a series of discrete bans for finite periods). In the context of this application, the questions are ambiguous and do not place the employees in a position to make an informed choice about the type of protected industrial action they are voting to take.”
[21] The Deputy President then said:
“[75] While preamble to the questions in this Application contemplates that each of the ten types of industrial action listed may occur, separately, partially, concurrently and/or consecutively it is not clear whether the phrase ‘A ban …” used in questions three to ten contemplates a singular ban of indefinite duration, a singular ban for a finite period, or a ban for a finite period followed by another ban for a finite period.
[76] In the context of this Application, I am of the view that questions three to ten are ambiguous and do not place the Employees in a position to make an informed choice about the type of protected industrial action they are voting to take. I have therefore excluded those questions from the Order.”
[22] The Deputy President then said that she was “satisfied that the requirements of s 443(1)(a) and (b) of the FW Act have been complied with” and granted the application “subject to the modifications noted in this Decision”. 22
Appeal grounds and submissions
The NTEU’s appeal grounds and submissions
[23] The NTEU’s notice of appeal contains five appeal grounds:
(1) The Deputy President erred in finding at [66] that employees were unable to give a considered response to proposed questions (3) to (10) inclusive.
(2) The Deputy President erred in finding at [71] that proposed question (5) was ambiguous.
(3) The Deputy President erred in finding at [72] and [76] that proposed questions (3) to (10) inclusive were ambiguous.
(4) The Deputy President erred in excluding proposed questions (3) to (10) inclusive from the protected action ballot order.
(5) The Deputy President erred in finding at [49] that there was insufficient evidence to satisfy her that TrueVote met the statutory requirements to be appointed as the ballot agent.
[24] The NTEU submitted that, in respect of the requirements in s 437(1) and (3)(b) as to the description or specification of the nature of the industrial action, the relevant principles were that:
• the questions must describe the proposed industrial action in such a way that employees can respond to them;
• it is unnecessary that the questions be precise and unambiguous;
• the consequences of any ambiguity fall to be considered later and under different provisions of the FW Act;
• the Commission ought not take a legalistic approach to the questions;
• the threshold for specificity in voting in a protected action ballot must be lower than that required to put an employer on notice of protected industrial action; and
• a high degree of specificity is not required to satisfy the requirement that the “nature of the intended action” is sufficiently described.
[25] In relation to appeal ground 1, the NTEU submitted that, by her observations in paragraphs [67]-[70] of the decision, the Deputy President imposed a qualification of a uniform understanding across all employees who would be participating in the ballot. Uniformity of employees’ views was not, it was submitted, a matter properly to be imposed as a criterion and amounted to the application of a wrong test or wrong principle or the consideration of an irrelevant matter. Rather, the appropriate criterion was to determine whether employees can understand the implications for themselves while at work – that is, individual voters need to be able to understand the nature of the proposed industrial action in respect of their own work, not as applied to some objective common understanding.
[26] As to appeal ground 2, which concerned question (5), the NTEU submitted that it was not ambiguous, and by reference to the preamble to the questions, would properly be understood as referring to industrial action. The industrial action the subject of question 5 was to perform work in a different manner by “[m]aking statements, explaining why the Union is taking industrial action”, or stopping work to make “statements, explaining why the Union is taking industrial action”. Further, the Deputy President’s observation in relation to question (5) that it was the employees, not the union, that took industrial action approached the question in a legalistic way, and when approached as a matter of ordinary industrial English and properly understood, employees would be able to respond to the question.
[27] In relation to appeal ground 3, which concerned the Deputy President’s finding that the expression “[a] ban on…” in questions (3)-(10) was ambiguous, the NTEU submitted that there was no ambiguity about the number or durations of the proposed ban(s) when the questions were read with the preamble and in accordance with ordinary industrial English. Appeal ground 4 is consequential upon appeal grounds 1-3. As to appeal ground 5, the NTEU conceded that the evidence was “sparse”, but submitted that there was nonetheless sufficient evidence that TrueVote satisfied the statutory criteria to be appointed as the ballot agent.
[28] The NTEU submitted that permission to appeal should be granted because a significant number of employees were affected by the decision and also because the Deputy President’s decision was at variance with a number of instances in which protected action ballot orders had been made in like or similar terms to that sought in the NTEU’s application. The NTEU relied in the latter respect on a witness statement made by Mr Wayne Cupido, the NTEU’s Senior National Industrial Officer, and dated 10 October 2022, in which he identified a number of instances where the NTEU had sought and obtained protected action ballot orders containing the expression “A ban on…” and/or which contained other language similar to that in questions (3)-(10) of the order sought in this matter. The NTEU also submitted that permission to appeal should be granted because the appeal raised issues of importance and general application.
[29] The NTEU submitted that, should we grant permission to appeal and uphold the appeal, we should on a rehearing of its application make the order originally sought, with two modifications:
(1) Questions (3) and (4) should refer to “events hosted or endorsed by Curtin University” in place of “Curtin University events”.
(2) Question (5) to refer to “explaining why members of the National Tertiary Education Industry Union are taking industrial action” rather than “explaining why the union is taking industrial action”.
[30] For the purpose of any rehearing, the NTEU relied on the witness statement of Mr Cupido, in which he gave evidence detailing how the NTEU was continuing to genuinely try to reach an agreement with the University. In addition, as to the appointment of the ballot agent, the NTEU relied on a statutory declaration made by Mr Donaldson. In his declaration, Mr Donaldson sets out TrueVote’s experience and expertise in running ballots and his methodology for running protected action ballots. He also said that he is the only person who performs TrueVote’s functions when it is appointed as a protected action ballot agent, and set out in detail the basis upon which he said he was a fit and proper person to conduct the NTEU’s proposed ballot for the purpose of s 444(1)(b)(i) of the FW Act and how TrueVote satisfied each of the criteria in reg 3.11.
The University’s submissions
[31] The University submitted that while the drafting of questions appearing in a protected action ballot order is ordinarily a matter for the applicant, there are cases in which the ballot questions - whether on their face, or in light of evidence adduced - do not specify the nature of the proposed industrial action, in which case the Commission cannot be satisfied of the matters necessary to make the order in the terms sought. It was submitted that this was such a case. Permission to appeal should not be granted, the University submitted, because no error in the House v The King 23 or Buck v Bavone24 sense had been demonstrated. Nor should the NTEU be granted permission to adduce new evidence, in the form of Mr Cupido’s witness statement and Mr Donaldson’s statutory declaration, in the appeal, since there was no reason why this evidence could not have been adduced at first instance.
[32] In relation to appeal ground 1, the University submitted that the question facing the Deputy President, namely whether or not a ballot question is sufficiently ambiguous as to render it incapable of specifying the nature of the proposed industrial action, lends itself to differences of opinion which, within a given range, are all legitimate and reasonable answers. The Deputy President’s answer to that question should not be set aside simply on the basis of a different opinion on appeal. The University refuted the NTEU’s submission that the Deputy President imposed a qualification of a “uniform understanding across all employees”, and submitted that on a fair reading of the decision the Deputy President considered that the evidence demonstrated ambiguity undermining the ability of employees to provide a “considered response” and an “informed choice”. It was submitted that this approach was consistent with prevailing Full Bench authority, in which respect the University cited United Firefighters’ Union of Australia v Country Fire Authority, 25 Total Marine Services Pty Ltd v Maritime Union of Australia26 (Total Marine Services), John Holland and Prosegur (2). It also submitted that, while s 437(3)(b) does not require questions to be drafted with a high degree of technical precision, the meaning of the question cannot simply be in the eye of the beholder. Sections 437(3)(b) and 443(3)(d) require that the questions specify the nature of “the proposed industrial action”, and while employees might understand that the action will affect them differently given their different roles, there must be some baseline common understanding of the nature of the action such that employees can make an informed choice as to its approval. This, it was submitted, requires the employees to understand what work would not be undertaken and what work would remain to be done, which means that the questions cannot be open to widely diverging interpretations. The University further submitted that it was open for the Deputy President, on the evidence before her, to reach the evaluative judgment that she did concerning the ambiguity of the questions.
[33] In relation to appeal ground 2, the University submitted that it is clear on its face that question (5) does not specify the nature of the proposed industrial action in such a way as to permit an informed choice since it does not suggest any industrial action within the meaning of s 19 of the FW Act. The type of statements to which the question refers would be perfectly capable of being made without any form of interruption or limitation on the performance of work in one or more of the manners contemplated under s 19. Even if the question is assumed to be referring to industrial action, it was submitted, the form of the action is left unspecified, and the ambiguity revealed by the questions provides ample evidence for the Deputy President’s conclusion.
[34] As to appeal ground 3, the University submitted that no appealable error had been identified by the NTEU. As the Deputy President found, ambiguity arises from the interaction between the singular and definite [sic] article (“a ban”) with the preamble’s words of combination (“separately, partially, concurrently and/or consecutively”). Even if the Deputy President’s finding of ambiguity was based solely on use of the singular “ban”, the University submitted that, without any specification of the outer limits of its length, this was ambiguous, and relied on the decision in CFMEU v Caelli Constructions (Vic) Pty Ltd 27 (Caelli), CFMEU v Brookfield Multiplex Australasia Pty Ltd28 (Brookfield) and Jadestone in this respect.
[35] The University submitted that appeal ground 4 was a mere compendium of the previous grounds and alleged no separate error. As to appeal ground 5, it was submitted that the evidence of Mr Donaldson’s qualifications constituted no more than a self-serving statement that should not be admitted on appeal, and the material before the Deputy President suggested that other individuals would carry out TrueVote’s functions without the NTEU supplying any evidence whatsoever upon which the Deputy President could be satisfied about the matter in reg 3.11 as to these other individuals. The evidence which the NTEU now sought to adduce from Mr Donaldson on appeal could not be used to collaterally demonstrate error on the part of the Deputy President in concluding that she could not be satisfied as to the matters in reg 3.11 based on the material before her.
Consideration
Permission to appeal
[36] The grant of permission to appeal is justified in this case because the appeal raises issues of general importance and application and because the decision under appeal is attended by sufficient doubt as to warrant its reconsideration and is inconsistent with protected action ballot orders made by other members of the Commission.
Sections 437 and 443 – applicable principles
[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
[44] The test posited by the Full Bench for compliance with s 437(3)(b) in the underlined part of paragraph [19] quoted above is that the questions must describe the industrial action in a way that employees are capable of responding to them. The Full Bench did not adopt the employer’s proposition of “informed consent” as bearing upon the analysis. This test has been followed and applied in subsequent Full Bench decisions. In NTEU v RMIT University, 35 the Full Bench said:
“[25] It is not the case that the nature of the action as identified in the PABO requires a high level of specificity. The Act clearly provides that the PABO must include ‘the nature of the proposed industrial action’ and the Full Bench guidance in John Holland makes clear that the questions should be specific enough such that ‘employees are capable of responding to them’.”
[45] Similarly, in Prosegur (2) 36 the Full Bench said:
“[33] As John Holland makes clear, it will not normally be the proper role of the Commission to interfere in the drafting of questions to appear in a protected action ballot order. If the questions describe the nature of proposed industrial action in a sufficiently clear way such that employees are capable of responding to them, then there is no basis for the Commission not to include them in a protected action ballot order that it is required to make under s 443(1).”
(footnote omitted)
[46] Returning to John Holland, 37 the Full Bench’s consideration of the specific questions in issue was as follows:
“[20] The appellant’s criticism of the questions in the AMWU application is based on a technical and pedantic approach. The expression ‘separately, concurrently and/or consecutively’ does not deprive the question of meaning. Those expressions apply, as far as there is scope, to the types of industrial action specified. We have already noted the terms of s 459(2) which gives separate justification for the term ‘consecutively’. While it is possible to construct extreme examples of the number of types of industrial action which might be authorised by an affirmative answer to the questions, in practical terms the questions do no more than identify eight types of industrial action and the possible options for taking each of those types of action.
[21] The criticism of question eight is unfounded. It might have been clearer to split that question into two parts, one dealing with indefinite bans on overtime and one with periodic bans. But the question is not meaningless. Seen in its full context the question asks whether employees will endorse bans on overtime which are either indefinite or periodic. An affirmative answer would indicate endorsement of both types of ban.
[22] Nor do we accept the criticism that questions one to eight, taken together, are nonsensical. An employee can endorse a number of different types of industrial action even if the deployment of one type may logically exclude another. There is no reason why employees cannot be asked to endorse a range of options.”
[47] It can be seen that the Full Bench adopted a high bar for concluding that a question is incapable of being responded to: it must contain language that “deprive[s] the question of meaning”, or be “meaningless” or “nonsensical”. Further, the Full Bench eschewed a “technical and pedantic approach”.
[48] At paragraph [61] of her decision, the Deputy President said, as a statement of principle, that in order to be able to respond to a question, the question should contain “details of the industrial action and other relevant matters” that will permit employees to “make an informed choice” about whether to authorise particular industrial action. The Deputy President cited FreshExchange and Prosegur (1) in support of that proposition. The Deputy President then stated, in paragraph [63], the further proposition that “[a] question which is ambiguous or does not permit employees to make an informed choice does not comply with the requirements for a protected action ballot application”, and cited Jadestone as authority for this. Jadestone also cites FreshExchange as the source of this proposition. FreshExchange was, as earlier stated, a decision of a single member, and was decided in 2009, prior to John Holland. The propositions for which it is cited as authority are directly inconsistent with John Holland.
[49] In light of the fact that, it appears, a number of single-member decisions have relied upon FreshExchange to guide the approach to the question of whether protected action ballot order applications are compliant with s 437(3)(b), it is appropriate to revisit the proper construction of that provision. The fundamental element of s 437(3)(b) is that the application must specify the “question or questions” to be put to the employees to be balloted. What is specified must therefore properly be able to be characterised as a “question” in the ordinary sense, that is, (relevantly) “a sentence in an interrogative form, addressed to someone in order to elicit information; … a proposal to be debated or voted on, as in a meeting or a deliberative assembly”. 38 The subject matter and context of s 437(3), namely that the question is for the purpose of being put to a vote of relevant employees, indicates that the question must be one that is capable of being answered “yes” or “no”.
[50] Section 437(3)(b) also requires that the question(s) must include specification of “the nature of the industrial action”. In context, this is to be read as meaning that the “the nature of the industrial action” must be the subject of the question - that is, it must be the matter for which a “yes” or “no” answer is sought. The word “nature” is one of high generality, and in context refers to the “character, kind or sort” 39 of the industrial action. The proposed action specified in the question must be something that is capable of constituting “industrial action” within the meaning of the definition of that expression in s 19(1) of the FW Act.40 However, it is not necessary that the specified action constitute industrial action in all conceivable circumstances, for the reasons stated by the Federal Court (Tracey J) in Ambulance Victoria v United Voice:
“Fair Work Australia and its successor have, understandably, been reluctant, when dealing with applications made under s 437 of the Act, to find that proposed action can never constitute industrial action within the meaning of s 19. The terms in which the proposed action is described for the purposes of the ballot may lack legal precision and, more significantly for present purposes, may or may not constitute industrial action depending on the manner in which the action is performed. It will often be difficult for the Fair Work Commission to anticipate, at the time it makes an order under s 437, the context and manner in which union members might choose to take the proposed action. Once a ballot has been conducted and the action is imminent or has occurred greater clarity will often be present.” 41
(underlining added)
[51] The above passage points to the need to distinguish between what must be specified pursuant to s 437(3)(b) in an application for a protected action ballot order and what must be specified in a notice of employee claim action under s 414(1). In respect of the latter, s 414(6) requires that the notice “specify the nature of the action and the day on which it will start”. As stated in Prosegur (2) albeit by reference to s 443(3)(d) rather than s 437(3)(b):
“[38] … Sections 443(3)(d) and s 414(6) use different language and are concerned with different subject matters. The former provision requires specification of the nature of the ‘proposed industrial action’ in a question in a protected action ballot. It is thus concerned with the identification of categories of industrial action that might be taken in the future, with the statutory purpose being for employees to be able to understand the type of industrial action that they are being asked to authorise. By contrast, s 414(6) requires specification of the nature of ‘the action’ - that is, identification of industrial action which employees are actually going to undertake. In that circumstance, the precise form of the industrial action to be taken will be known to the bargaining representative. The provision’s purpose is to allow the employer an opportunity to take defensive measures in response to the industrial action. In that context, a greater degree of particularity may be required than under s 443(3)(d).”
[52] In a similar vein, the Full Bench in Total Marine Services said that “the precise timing and length of the action is not determined at the stage of authorisation.” 42
[53] In summary, therefore, an application for a protected action ballot order will comply with the requirement in 437(3)(b), and thus will have been “made under section 437” for the purpose of s 443(1)(a), if it specifies a question or questions, capable of being answered “yes” or “no” by the employees participating in the ballot, which propose(s) action of an identified character, kind or sort capable of constituting industrial action within the meaning of s 19(1). A question which meets these requirements can be expressed and understood in ordinary industrial English, and there is no requirement for legalism, technicality or pedantry in the drafting or analysis of such questions. In our view, the proposition that, beyond these requirements, the questions must be interrogated to identify ambiguity in aid of enabling “informed consent” goes beyond the text of the provision and constitutes a gloss on the statute. The concept of “informed consent” is inapposite to a protected action ballot since, unlike a vote to approve an enterprise agreement, there is no requirement for genuine agreement 43 and those voting are not bound by the result (in the sense there is no requirement for any employee to actually take industrial action which has been authorised by a ballot and for which a s 414(1) notice has been issued44). We therefore affirm that paragraph [19] of the decision in John Holland states the correct approach to the construction and application of s 437(3)(b). The statements of principle in FreshExchange are not consistent with that approach and should not be followed.
[54] As earlier stated, s 443(1) imposes a duty on the Commission to make a protected action ballot order if the requirements of paragraphs (a) and (b) of the subsection are met. The mandatory nature of s 443(1) is the most important factor governing the construction of s 443 as a whole. 45 It should not therefore be considered that, in respect of a valid application for a protected action ballot order, the Commission is at large as to the terms of the order to be made subject to satisfaction of the content requirements in the section. The inference to be drawn from the mandatory nature of s 443(1) is that the order required to be made is one which gives effect to an application validly made under s 437. Thus, in respect of s 443(3)(d), we do not consider that the Commission has a general discretion to determine the questions which will be included in the order, or to simply exclude valid questions, independent of what has been applied for.
[55] That is not to say that the Commission is compelled, in making an order, to reproduce the questions in precisely the same terms as applied for. Section 599 of the FW Act provides that, except as provided by the FW Act, the Commission is not required to make a decision in relation to an application in the terms applied for, and there is no reason to think that anything in s 443 ousts the operation of s 599. If there is some adjustment which can be made to the text of a question in order to more clearly express what the applicant proposes, then that may be done in discharging the requirements of s 443(1) and (3)(d). In rare cases, there may also be applications which, while they contain a number of questions which meet the requirements of s 437(3)(b) and are thus validly made under s 437, contain a question which is so lacking in meaning that it is incapable of being answered. In that circumstance, unless the drafting of the question can be rectified in a way consistent with the applicant’s intent, it may be necessary to make an order pursuant to s 443(1) which excludes that question.
Appeal ground 3
[56] Having regard to the above analysis, it is only necessary for us to deal with appeal ground 3, since the Deputy President’s conclusion that the expression “[a] ban on…” was ambiguous constituted the sole or primary basis upon which she excluded seven of the ten questions proposed by the NTEU. For the reasons earlier stated, to exclude the questions entirely because the Deputy President considered them to be ambiguous involved a misconstruction of ss 437(3)(b) and 443(3)(d) and an error of principle. A question that uses the expression “[a] ban on…” followed by the identification of the work activity to be banned is one that is capable of being answered, and specifies a character, kind or sort of industrial action as defined in s 19(1). In the context of an earlier analogue of the notice requirements in ss 414(1) and (6) contained in the Workplace Relations Act 1996 (Cth), 46 a Full Court of the Federal Court (per Wilcox and Cooper JJ, Burchett J relevantly agreeing) said in Davids Distribution Pty Ltd v National Union of Workers:47
“[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’.”
(underlining added)
[57] A form of words which would satisfy the more particular requirements of notice in s 414 would not fail to satisfy the more general requirement in s 437(3)(b). We consider that the Deputy President, on a proper application of the principles in John Holland, should have found that the relevant questions met the requirements in ss 437(3)(b) and 443(3)(d), and erred in finding otherwise.
[58] We would add that even if ambiguity was the test, ambiguity is to be assessed objectively, not by evidence of the subjective understanding of individuals (who may simply be wrong in their reading of the question). Further, to the extent that the Deputy President identified some problem in the relevant questions, it seems to us that they could have been addressed, in dialogue with the applicant, by some relatively minor changes to the drafting of the questions rather than simply excluding them entirely.
[59] The identified error constitutes a proper basis to uphold appeal ground 3, quash the Deputy President’s decision and order and rehear the NTEU’s application.
Rehearing
[60] For the purpose of the rehearing, we admit and take into account the witness statement of Mr Cupido and the statutory declaration Mr Donaldson. In relation to s 443(1)(a), we find that the NTEU has made a valid application under s 437. In respect of the questions specified in the application, we consider that the application complies with s 437(3). There is no dispute that the application specifies the group of employees to be balloted, as required by s 437(3)(a). In relation to s 437(3)(b), on the basis of our earlier analysis, we consider that the questions are capable of being answered and specify the nature of the proposed industrial action. We have already dealt with the questions which use the phrase “[a] ban on…”. In relation to questions (3) and (4), we consider that they adequately identify the relevant industrial action as a ban on work required (namely, preparation and participation) in connection with University “events”, being special University occasions or activities. The NTEU has proposed amending the questions in the order to be made such that “events” is clarified to mean events “hosted or endorsed” by the University, but we consider in any case that the question in its original form is clear enough since it has as its premise that University employees may be required to perform work in respect of the event. As to question (5), we consider it to be clear enough that making statements explaining why industrial action is taking place may, if done during the performance of work duties, would at least be “the performance of work by an employee in a manner different from that in which it is customarily performed” and might also, if it interfered with the normal performance of work, constitute “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”. It would thus amount to industrial action within the meaning of that part of the definition in s 19(1)(a). The NTEU’s proposed amendment to this question responds to a technical objection raised by the University but does not change its intended meaning.
[61] It remained not in contest, and we are satisfied on the basis of the witness statement of Mr Cupido, that the NTEU has been and is genuinely trying to reach an agreement with the University. Because the prerequisites in paragraphs (a) and (b) of s 443(1) are met, the subsection requires a protected action ballot order to be made. The order we make specifies the matters required by s 443(2) and (3), noting that in respect of s 443(3)(d) we have specified questions (3), (4) and (5) in the amended terms proposed by the NTEU.
[62] In respect of s 443(4), the order we make specifies TrueVote as the protected action ballot agent. In respect of the requirement in s 444(1)(a), TrueVote was specified as the person which the NTEU wished to be the protected action ballot agent. As to s 444(1)(b), we are satisfied on the basis of Mr Donaldson’s declaration that TrueVote is a fit and proper person to conduct the ballot and meets the requirements of reg 3.11. Mr Donaldson’s declaration states that he will be the only person to carry out the requisite protected action ballot functions and addresses each of the criteria in reg 3.11. We note that the University did not contest that we were entitled, on the basis of Mr Donaldson’s declaration (if admitted), to reach the state of satisfaction required by s 444(1)(b).
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR747884>
4 PR 747159
5 The proposed agreement must be a non-greenfields single enterprise agreement: s 437(2)
6 [2022] FWC 2514 at [37]
7 Ibid at [39]
8 Ibid at [49]
9 Ibid
10 Ibid at [50]
11 Ibid at [55]
12 Ibid at [56]-[57]
13 [2010] FWAFB 526, 194 IR 239
17 [2022] FWC 2514 at [67]
18 Ibid at [68]
19 Ibid at [69]
20 Ibid at [70]
21 Ibid at [71]
22 Ibid at [77]
23 [1936] HCA 40, 55 CLR 499
24 [1976] HCA 24, 135 CLR 110
25 [2006] AIRC 563, 158 IR 120
26 [2009] FWAFB 368, 189 IR 407
29 [2022] FWC 2514 at [37]
30 Ibid at [77]
31 [2010] FWAFB 526, 194 IR 239 at [8]
32 Ibid at [10]
33 Ibid at [16]
34 Ibid
37 [2010 FWAFB 526, 194 IR 239
38 Macquarie Online Dictionary
39 Ibid
40 Ambulance Victoria v United Voice [2014] FCA 1119, 245 IR 375 at [19]
41 Ibid at [18]
42 [2009] FWAFB 368, 189 IR 407 at [39]
43 See ss 186(2)(a) and s 188
44 Boral Resources (NSW) Pty Ltd [2010] FWAFB 1771 at [13]-[14]
45 Similarly to s 418 and its predecessor, s 496 of the Workplace Relations Act 1996 (Cth): see TWU v Australian Industrial Relations Commission [2008] FCAFC 26, 166 FCR 108 at [18]
46 Section 170MO(1) and (5)
47 [1999] FCA 1108, 91 FCR 463