[2009] FWA 1183 |
|
DECISION |
Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.
SENIOR DEPUTY PRESIDENT KAUFMAN |
MELBOURNE, 23 NOVEMBER 2009 |
Application to stop industrial action – whether requirement that all industrial action commence after date of order under item 14A of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
[1] RMIT University (RMIT) has applied for an order under s.418 of the Fair Work Act 2009 (the Act) that industrial action stop. The order is sought against the National Tertiary Education Industry Union (NTEU) and employees of RMIT who were members of the NTEU as at certain dates.
[2] The basis for seeking the order is said to be that certain industrial action being taken by the relevant employees is not protected action and therefore not subject to the immunity provided by s.415 of the Act.
[3] The facts are not in dispute.
[4] On 22 April 2009 a Protected Action Ballot Order was made by the Australian Industrial Relations Commission 1 and the declaration of the results of the ballot occurred on 11 May 2009.
[5] On 15 May 2009 the NTEU notified RMIT “that officers, employees and members of the NTEU intended to organise and engage in industrial action…”. In particular the notification specified “an indefinite ban on the recording, or transmission to the University, of assessment results commencing at 12.01 am on 22nd May 2009.”
[6] Between 21 May 2009 and 5 June 2009 the NTEU organized, and its members took, industrial action, including “an indefinite ban on the recording, or transmission to the University, of assessment results commencing at 12.01 am on 22nd May 2009”.
[7] Because the industrial action had been authorised by a protected action ballot 2 and was not otherwise excluded by Subdivision B of Division 3 of Part 9 of the Workplace Relations Act 1996 (WR Act) it was protected industrial action and protected by the immunity provisions provided by s.447 of the WR Act.
[8] Section 478 of the WR Act set out when industrial action was authorised by a protected action ballot:
(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.
….
[9] On 5 June 2009 all industrial action was suspended following the entering into of a “Heads of Agreement” between the NTEU and RMIT. Unfortunately the heads of agreement did not result in an enterprise agreement and hostilities resumed.
[10] On 2 July 2009 the NTEU applied under Item 14A of Part 4 of Schedule 13 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) for an order that industrial action that was authorised under s.478 of the WR Act in relation to the proposed collective agreement be taken to be authorised, in relation to the proposed enterprise agreement, by a protected action ballot under s.459(1) of the Act. Such an order could only be made within 28 days of the repeal of the WR Act. Item 14A is in the following terms:
14A FWA may order that industrial action is taken to be authorised by a protected action ballot
(1) A person who is a bargaining representative for a proposed enterprise agreement may apply to FWA for an order under this item if, before the WR Act repeal day, the person was an applicant specified in an order for a protected action ballot in relation to a proposed collective agreement.
(2) The application must be made within 28 days after the WR Act repeal day.
(3) FWA may order that industrial action that was authorised under section 478 of the WR Act in relation to the proposed collective agreement is taken to be authorised, in relation to the proposed enterprise agreement, by a protected action ballot under subsection 459(1) of the FW Act, if FWA is satisfied that:
(a) on or after 1 March 2009, the person organised or engaged in industrial action, for the purpose of supporting or advancing claims in relation to the proposed collective agreement; and
(b) all such industrial action organised or engaged in by the person was:
(i) authorised by a protected action ballot under section 478 of the WR Act; and
(ii) protected action within the meaning of the WR Act; and
(c) the person did not first organise or engage in such industrial action on or after the WR Act repeal day; and
(d) no collective agreement covering the employees whose employment would have been subject to the proposed collective agreement was approved by those employees before the WR Act repeal day; and
(e) the proposed enterprise agreement will cover those employees; and
(f) the person is genuinely trying to reach agreement in relation to the proposed enterprise agreement; and
(g) it is reasonable in all the circumstances to make the order.
(4) Industrial action that is taken to be authorised because of the operation of subitem (3) is only taken to be authorised in relation to employees who:
(a) will be covered by the proposed enterprise agreement; and
(b) were relevant employees (within the meaning of section 450 of the WR Act) in relation to the proposed collective agreement.
(5) For the purposes of subsection 414(3) of the FW Act, the results of the protected action ballot under that Act are taken to have been declared on the day of the order.
[11] On 17 July 2009 Fair Work Australia acceded to that application and made an order in the following terms:
[1] On 11 May 2009, under section 478 of the Workplace Relations Act 1996, the results of a protected action ballot were declared, authorising industrial action, in relation to a proposed collective agreement between the National Tertiary Education Industry Union and RMIT University.
[2] Fair Work Australia orders, pursuant to item 14A of Schedule 13 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, that industrial action that was authorised by the protected action ballot under the Workplace Relation (sic) Act 1996 is taken to be authorised under subsection 459(1) of the Fair Work Act 2009 in relation to a proposed enterprise agreement between the National Tertiary Education Industry Union and RMIT University. 3
[12] On 18 August 2009 the NTEU advised RMIT “that officers, employees and members of the NTEU intend to organise and engage in industrial action in accordance with Part 3-3 of the” Act. The nature of the industrial action was to be a four hour stoppage of work. I infer, although it is not necessary to decide, that that stoppage occurred.
[13] On 9 September 2009 the NTEU again notified RMIT of its intention to engage in and organise further industrial action. This time the action was to be a 24 hour stoppage of work on 16 September 2009 and “an indefinite ban on the recording, or transmission to the University of assessment results, commencing at 12.01 am on Thursday …17 September by members of the NTEU employed by RMIT in the class described in a protected action ballot order; and officers and employees of the NTEU.”
[14] It is the ban on dealing with assessment results that is the focus of the present application. This ban, which has apparently been in place since 17 September 2009, is particularly important in a temporal sense because if RMIT does not obtain the assessment results within the next few days the ability of many students to graduate is in jeopardy.
[15] RMIT contends that the industrial action is unprotected because the requirements of s.459(1)(d)(ii) of the Act have not been met in that the action did not commence within the 30 day period starting on the declaration of the results of the protected action ballot. It points to Item 14A(5) of the Transitional Act which, for the purposes of s.414(3) of the Act, deems the results of the ballot under the Act to have been declared on the day of the order under Item 14A(3). That day was 17 July 2009 and the bans commenced on 17 September, well beyond 30 days after the deemed declaration date.
[16] Section 414(3) of the Act provides that a notice of intention to take protected action under sub-section (1) must not be given until after the results of the protected action ballot have been declared.
[17] The NTEU contends that the industrial action was that that commenced within 30 days of the declaration of the ballot on 11 May 2009. It contends that the industrial action is the ban on the recording, or transmission to the University of assessment results that was first imposed on 22 May 2009 and that was resumed on or after 17 September. This, it submits, constitutes a continuation of the industrial action that commenced on 22 May 2009 and was, accordingly, commenced within 30 days of the declaration of the ballot on 11 May.
[18] The fact that all industrial action was suspended on 5 June 2009, the NTEU contends, does not alter the situation, as “the ban” commenced within 30 days of the declaration of the protected action ballot on 11 May 2009. That the ban was suspended for a period from 5 June 2009 does not affect the jurisdictional prerequisite to its reimposition on 17 September 2009, because that particular form of industrial action had commenced within the 30 day period. 4
[19] RMIT submits that the effect of Item 14A(5) is to require that any and all industrial action taken under the authority of the protected action ballot thereby authorised must commence within 30 days of the date of the order made under Item 14A, that being the deemed declaration day of the ballot for the purposes of s.414(3) of the Act.
[20] Section 414 is to be found in Subdivision B of Division 2 of Part 3 – 3 of the Act which deals with the common requirements for industrial action to be protected industrial action. It reads:
(3) A notice under subsection (1) must not be given until after the results of the protected action ballot for the employee claim action have been declared.
[21] Subsection 1 does no more than require that prior notice be given to the employer that is to be the subject of protected industrial action. One of the purposes of the provision of such notice is to enable the employer to take defensive action 5.
[22] Section 414(3) does not have the effect that the specific action the subject of the notice must have been commenced within the 30 day period following the declaration of the ballot. It is sufficient if that genus of industrial action had commenced within the 30 day period. There is no requirement that specific instances of it were commenced within that period. So much is clear form the judgment of Gyles J in United Collieries Pty Ltd v Construction, Forestry and Mining Union 6.
[23] It is readily apparent that s.459(1)(d)(i) of the Act is to the same effect as s.478(1)(d) of the WR Act.
459 Circumstances in which industrial action is authorised by protected action ballot
(1) Industrial action by employees is authorised by a protected action ballot if:
(a) the action was the subject of the ballot; and
(b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and
(c) more than 50% of the valid votes were votes approving the action; and
(d) the action commences:
(i) during the 30-day period starting on the date of the declaration of the results of the ballot; or
(ii) if FWA has extended that period under subsection (3)—during the extended period.
[24] Item 14A(3)(c) requires that the industrial action that is sought to be taken must not first have been organised or taken on or after the WR Act repeal day, that is effectively between 1 July 2009 and the date of the application for the Item 14A order. It follows that such action may well have not commenced within 30 days of the actual declaration of the ballot; here 11 May 2009. Without the deeming of the declaration to be the date of the Item 14A order, no industrial action of a genus that was contemplated by the ballot, but that had not commenced within 30 days of its declaration, would be protected.
[25] Put another way, the reference to s.414(3) of the Act in Item 14A(5) of the Transitional Act does not require that industrial action, of a nature that had commenced within 30 days of the WR Act declaration of the ballot, is required to commence within 30 days of the deemed declaration. RMIT’s reliance on it is misconceived.
[26] The application for an order under s.418 of the Act must be dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
C Pugsley for the applicant.
A Bandt, of counsel, for the respondent.
Hearing details:
2009.
Melbourne:
18 November
2 WR Act s.445(f)
4 United Collieries Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 153 FCR 543
5 David's Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 at [87]
6 (2006) 153 FCR 543 at [22] – [26]
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