[2014] FWC 2977

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

National Tertiary Education Industry Union
v
Navitas Bundoora Pty Ltd T/A La Trobe Melbourne
(B2014/71)

COMMISSIONER WILSON

MELBOURNE, 12 MAY 2014

Proposed protected action ballot by employees of Navitas Bundoora Pty Ltd T/as La Trobe Melbourne.

[1] The following are my edited reasons for decision, originally given in transcript at Melbourne on 18 April 2014.

[2] This is an application for a protected action ballot order by members of the National Tertiary Education Industry Union (the “NTEU”) employed by Navitas Bundoora Pty Ltd, trading as La Trobe Melbourne.

[3] The application is made pursuant to s.437 of the Fair Work Act 2009 (the “Act”).

[4] The Applicant seeks to ballot all employees of La Trobe Melbourne who will be covered by the proposed enterprise agreement and are represented by the bargaining representative who is the Applicant for this protected action ballot order.

[5] In considering this matter I must apply s.443 of the Act which 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.

(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) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(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.

[6] To begin, I am satisfied that the application has been made in accordance with s.437 of the Act. The section requires that the Applicant is a bargaining representative, and I am satisfied that is the case.

[7] The section also requires the application specify the group or groups of employees who are to be balloted. 1 The application made by the NTEU differs slightly from the Draft Order tabled by the NTEU inasmuch as the application refers in item 3 to the group or groups of employees to be balloted as follows:

“...those who will be covered by the proposed agreement being all staff, including casual/sessional employees, and who are represented by the bargaining representative who is the applicant for this protected action ballot order”.

[8] In contrast, the Draft Order at item 2 states that the employees to be balloted are:

“...those who will be covered by the proposed enterprise agreement being academic staff, professional and teaching staff including casual/sessional employees, who are represented by the bargaining representative who is the applicant for this protected action ballot order”.

[9] In submissions provided during the hearing, the NTEU clarified its intention that the group of employees to be balloted is that set out in the application at item 3, and I take that to be the case. La Trobe Melbourne submitted the Draft Order is too wide and that there should be restrictions upon the group inasmuch as the order should not apply to managers or directors. In resolving this issue, I note the recent Full Bench decision in Mermaid Marine Vessel Operations Pty Ltd v The Maritime Union of Australia [2014] FWCFB 1317. The Bench in that matter was Deputy President Gostencnik, Deputy President Kovacic and Commissioner Cloghan.

[10] The reasoning within Mermaid Marine Vessel Operations Pty Ltd, to which I refer, is that set out in paragraphs 45 and 46 of that decision. The Full Bench in that matter was considering various issues including whether or not it was appropriate to make orders given that an enterprise agreement did not pass its nominal expiry date. At paragraph 46 of the decision, the Full Bench says:

“When read in context, “a proposed enterprise agreement” in s.438(1) seems to us to mean no more than the agreement the bargaining representative applying for an order under s.447 is proposing at the time the application for a protected action ballot order is made. It is that agreement to which the ballot will relate and it is employees represented by the bargaining representative who fall within the scope of that agreement (or a group of such employees) who will vote on questions of particular industrial action. That the Appellant does not agree with the scope of the proposed agreement or would prefer a broader scope or that the bargaining parties have bargained for a broader scope previously is, for the purpose of identifying the proposed enterprise agreement to which s.438(1) might relate, irrelevant in considering whether s.438(1) prohibits an application being made”.

[11] The reasoning of the Bench in that particular matter was then affirmed again by the same Bench in another matter, being The Maritime Union of Australia v Swire Pacific Ship Management (Australia) Pty Ltd [2014] FWCFB 2587, and which was referred to by La Trobe Melbourne this morning. The Bench in that matter refers to the abovementioned quote at paragraph 31 of the decision. As a result of that consideration, and also the submissions put to me during the hearing of this matter, I am prepared to make the order in respect of the scope which is set out within item 3 of the NTEU application.

[12] Section 437(3)(b) of the Act also requires the application to specify the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action. I note that the application particularises both the questions to be put to the employees to be balloted, and the nature of consequential industrial action.

[13] In relation to the proposed questions and the nature of the proposed industrial action La Trobe Melbourne argued that a number of questions are ambiguous or are uncertain as to the nature of the proposed industrial action. La Trobe Melbourne argued further that, if implemented to the point of industrial action, there may be risks either to the organisation’s reputation or to safety or other significant issues.

[14] La Trobe Melbourne argued that as a result, the application should not be granted, or in the alternative, certainly the questions should either be excised or amended.

[15] The sub questions affected by the submission are sub questions 5, 8 and 14. In respect of sub question 5, I note an alteration submitted by the NTEU in the course of the proceedings, such that the question would read:

“The inclusion of statements in support of the Union’s bargaining claims and/or explaining why the Union is taking industrial action in email signatures, phone messages, the delivery of lectures, tutorials, laboratory classes, practicum and clinical education including online delivery and communications with any person?”

[16] Having given consideration to the submissions put forward by both parties in this matter, I determine that sub question 5 (as amended) and sub questions 8 and 14 are in an appropriate form and properly describe the industrial action in such a way that employees are capable of responding to them. In that respect I have had regard to the decision of the majority in the matter of Mornington Peninsula Shire Council [2011] FWAFB 4809 at paragraph 40, in which the Full Bench majority found that all that section 437 requires is that the questions should describe the industrial action in such a way that employees are capable of responding to them.

[17] That decision is not inconsistent with the earlier decision of the Full Bench in the matter of John Holland Pty Ltd v AMWU and AWU [2010] FWAFB 526 at paragraph 19, in which the Bench said:

“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.”

[18] As a result of those considerations, I am satisfied that the questions (sub questions 5, 8 and 14, and all of the questions) are in a form which pass the tests of the legislation. In that regard I have considered the interaction of those questions with section 19 of the Act, which defines the meaning of industrial action and I am satisfied that the questions are not inconsistent with that section.

[19] The next matter to which attention must be given by me is whether or not the Applicant has been, and is genuinely trying to, reach an agreement with the employer and the employees who are to be balloted – which is the requirement set out in section 443(1)(b) of the Act.

[20] In this matter the NTEU submitted it is bargaining in good faith and La Trobe Melbourne agree that the threshold, to which I have referred, has been met in as much as the NTEU is trying to reach an agreement with the employer and the employees who are to be balloted.

[21] A further matter which arises in this application is the application of the NTEU seeking the appointment of TrueVote Pty Ltd as the protected action ballot agent. This is an application under section 444 of the Act which provides that the Fair Work Commission 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 the agent is relevantly specified in the application and secondly, that the Commission is satisfied that the person is a fit and proper person to conduct the ballot and that any other requirements prescribed by the regulations are met.

[22] In this matter the NTEU has endeavoured to satisfy the test of section 444 through the submission of Exhibit A1 which is a statutory declaration made by Mr John Donaldson, being a representative of TrueVote Pty Ltd. I have had regard to that statutory declaration and am generally satisfied that it, together with the submissions made by the NTEU, and the lack of opposing submissions on the part of La Trobe Melbourne, enables me to be satisfied that TrueVote Pty Ltd is a fit and proper person to conduct the ballot.

[23] In forming such a view, though, it is not without some misgivings and in that regard I point out that on the face of the statutory declaration there are certain assertions which go further than the content of the section 444 and also the relevant regulation, which is Regulation 3.11. I draw the attention of the parties to the decision in The Maritime Union of Australia [2014] FWCFB 1973 which involved the Full Bench, the quorum being Deputy President Gostencnik, Deputy President Wells and Commissioner Blair. The decision was given on 26 March 2014.

[24] In that matter the Full Bench was asked to consider an appeal against a decision of a delegate of the Fair Work Commission to withhold a right of entry permit to a Mr William Tracey who is an Assistant Branch Secretary of the Maritime Union of Australia. In that decision, at paragraph 4, the Full Bench records that the delegate concluded he was not satisfied that Mr Tracey is a fit and proper person to hold an entry permit – and that of course is a decision made under section 512 of the Act. I note that the section to which the delegate was required to turn his mind provides that:

“The FWC may, on application by an organisation, issue permit (and entry permit) to an official of the organisation if the FWC is satisfied that the official is a fit and proper person to hold the entry permit”.

[25] In contrast, section 444(1) of the Act requires the Commission to be satisfied the person is a fit and proper person to conduct the ballot.

[26] The material tests, it appears to me, are not dissimilar to those set out within section 512 of the Act. In the matter of The Maritime Union of Australia, the Full Bench made certain comments about the meaning of what is a fit and proper person. In particular, I refer to paragraphs 23 through to 26 inclusive, set out below.

“[23] As is apparent from the above, the relevant question, in determining whether the Commission is permitted to exercise the discretion to issue an entry permit to an official of an organisation under s.512, is whether the official “is a fit and proper person to hold an entry permit”. The description “fit and proper person” in s.512 is not defined and standing alone, it carries no precise meaning. Generally though, the description is used as a measure of suitability to perform or carry out a particular function, to be appointed to a particular position or to be given a particular right or privilege. However, the description will take its meaning from its context, from the activities in which the person to be assessed is or will be engaged and the ends to be served by those activities. Taking into account context, the structure of s. 512 and the activities to be engaged in by an official if an entry permit will issue, it seems to us clear that that description is to be applied by reference to the suitability of the official “to hold the entry permit”.

[24] The permit qualification matters in s.513, which must be taken into account in deciding whether an official is a fit and proper person, must therefore be considered and applied in a way that assists in answering the question posed by s.512, namely whether the official “is a fit and proper person to hold the entry permit”. The permit qualifications matters are not matters to be considered at large without reference to the question that needs to be answered in s.512. They are not matters to be considered to determine whether a person is a “fit and proper person” per se. Rather the permit qualification matters must be taken into account to decide whether an official of an applicant organisation is a fit and proper person to hold the entry permit that has been applied for by the organisation.

[25] A holder of an entry permit is empowered to exercise entry rights and rights associated with entry, such as inspections and employee interviews. Those rights are exercisable subject to conditions, such as notice and purpose. They are also subject to limitations, such as on times for entry and places for interview, and responsibilities such as complying with site occupational health and safety requirements and not hindering or obstructing a person. The question of whether an officer is a fit and proper person to hold an entry permit will therefore necessarily require a consideration of the rights the holder of an entry permit may exercise, the limitations on and conditions attaching to the exercise of those rights, and the responsibilities that must be discharged in the exercise of those rights. These are all to be found in Part 3-4 of the Act.

[26] We reject so much of the Appellant’s submission as suggested that section 513 must be read down in the sense that the various permit qualification matters must be taken into account only to the extent that they are relevant to the exercise of entry permit rights. In our view there is no basis for reading down s.513. In a given application for an entry permit, if a matter that is a permit qualification matter, then that matter must be taken into account in determining whether the official of the applicant organisation is a fit and proper person to hold an entry permit. Parliament has determined that such matters are relevant to that question and it would be wrong to only have regard to those matters if they are relevant to the exercise of entry permit rights. Such words of limitation appear nowhere in s.513. Where parliament intended for particular matters to have a more narrow application, as is the case for the mandatory revocation suspension of entry permits, it has expressly so provided. So it is that s.510(1)(d) provides that the Commission “. . . must, under this subsection, revoke or suspend each entry permit held by a permit holder if it is satisfied that . . . the permit holder, or another person, was ordered to pay a pecuniary penalty under this Act in relation to a contravention of this Part by the permit holder” since the first of those permits was issued (our underlining).” (footnotes omitted)

[27] In my view, the above quoted paragraphs put forward the proposition that ascertaining whether a person is a fit and proper person is something which requires an assessment of some form, and I would consider that assessment to require more than a proforma assertion, such as set out in Exhibit A1, if the matter were to be contested.

[28] As a result I put forward to the NTEU the proposition that it may need to consider the more expansive submissions on a future occasion, if that were to be required. However I am satisfied, principally because of the agreement of the employer on this occasion, that the relevant test under section 444 has been satisfied.

[29] Having decided all of these matters and that s.443(1)(a) and (b) had been complied with, I issued a protected action ballot order, as sought by the NTEU, on 18 April 2014 (PR549843).

COMMISSIONER

Appearances:

Mr J Cullinan for the Applicant

Ms E Reilly for the Respondent

Hearing details:

2014.

Melbourne:

April, 17