| [2015] FWCFB 7399 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
VICE PRESIDENT HATCHER |
|
Appeal against decision [[2015] FWC 6727] of Deputy President Gostencnik at Melbourne on 5 October 2015 in matter number B2015/1253.
Introduction
[1] This appeal relates to a decision issued by Deputy President Gostencnik on 5 October 2015 1 (Decision) to make a protected action ballot order (PABO) in response to an application for such an order (Application) by the AMWU, CEPU and AWU2 (collectively, the Unions).
[2] Skilled Offshore Pty Ltd (Skilled Offshore) lodged an amended notice of appeal on 21 October 2015 in which it sought permission to appeal against the Decision and the PABO made by the Deputy President 3 pursuant to s.604 of the Fair Work Act 2009 (FW Act).
[3] The appeal was heard by the Full Bench on an expedited basis on 26 October 2015. Mr Wood QC and Mr O’Neill of counsel appeared for Skilled Offshore. Mr Hammond of counsel appeared for the Unions. Representation by counsel for both parties was permitted pursuant to s.596(2)(a) of the FW Act.
Background
[4] Skilled Offshore supplies labour in the form of crew to vessels operating in the offshore oil and gas industry.
[5] An enterprise agreement known as the Skilled Offshore Western Australia and Northern Territory Offshore Construction Projects Agreement 2011–2015 (Current Agreement) applies to Skilled Offshore and its employees engaged in the classifications set out in clause 12 of the Current Agreement who are engaged to work on Offshore Construction Projects off the Western Australian or Northern Territory coasts. The nominal expiry date of the Current Agreement was 19 August 2015.
[6] The Current Agreement was negotiated in 2011 as a greenfields agreement, following “industry framework” negotiations. In those negotiations, an enterprise agreement was negotiated between the Unions and a single employer (Brunel Technical Services Pty Ltd), and then after the involvement of national union offices that enterprise agreement was adopted in almost identical form by numerous employers in the offshore industry.
[7] Clause 5 of the Current Agreement provides that:
“The Company agrees that at least three months prior to the conclusion of the Agreement that the parties shall collectively bargain in good faith for an extension of the Agreement for a further four years.”
[8] On 19 June 2015 the AMWU informed Skilled Offshore that it wished to commence negotiations for “the replacement of the current enterprise agreement”. 4
[9] On 5 August 2015 the Unions served a combined log of claims on Skilled Offshore in relation to “the renewal of the” Current Agreement. 5
[10] In the period between 5 August 2015 and about 7 September 2015 the parties participated in discussions about whether they would bargain for a new enterprise agreement to replace the Current Agreement or they, in addition to other employers in the industry (represented by the AMMA 6), would participate in bargaining in relation to an industry framework agreement which would form the basis of individual enterprise agreements between employers such as Skilled Offshore and their employees. Skilled Offshore preferred the latter course. The Unions, at least initially7, preferred the former course but were willing to listen to Skilled Offshore’s and the AMMA’s proposal that an industry framework agreement should be negotiated first.
[11] It is necessary to note at this point that s.173 of the FW Act relevantly requires an employer to issue a Notice of Employee Representational Rights (NERR) no later than 14 days from the time the employer agrees to bargain or initiates bargaining for an enterprise agreement. Skilled Offshore on a number of occasions during this period declined to issue a NERR to its employees despite being requested to do so by the Unions.
[12] On 2 September 2015 the Unions filed the Application.
[13] Skilled Offshore contended that the Unions first indicated they would not be prepared to participate in negotiations over an industry framework agreement on 7 September 2015.
[14] On 9 September 2015 Skilled Offshore agreed to issue a NERR to its employees. Skilled Offshore issued the NERR to its employees on 14 September 2015.
[15] Deputy President Gostencnik heard the Application on 15 September 2015 and 25 September 2015. The Deputy President’s Decision and Order were issued on 5 October 2015.
Submissions
[16] Skilled Offshore relies on five grounds of appeal in its amended notice of appeal. Grounds 1 to 3 focus on the proper construction and identification of the “proposed enterprise agreement” within the meaning of the FW Act, as well as the implications of the NERR issue date. Ground 4 concerns an allegation that the Unions failed to “specify” the nature of the proposed industrial action in the Application. Ground 5 relates to the proper construction of the expression “industrial action” in the Application.
Grounds 1 to 3
[17] Grounds 1-3 of Skilled Offshore’s appeal focused upon the contention that the Unions’ application for a PABO was not valid because it did not comply with the requirements of s.437, and that the Deputy President erred in determining otherwise. Section 437(1) of the FW Act provides that a bargaining representative of an employee who will be covered by a “proposed enterprise agreement” may apply to the Commission for a PABO. Section 443(1)(a) requires an application to have been made under s.437 in order for the Commission to be empowered to make a PABO.
[18] Skilled Offshore submitted that the Deputy President erred in finding (at [40] of the Decision) that “at least on and from 5 August 2015, the enterprise agreement proposed by the Unions was clearly identified”. In particular, Skilled Offshore submitted that, although the Unions had on 5 August 2015 presented a log of claims, the issue of whether negotiations would be pursuant to an industry framework agreement remained current until 7 September 2015. In the circumstances, Skilled Offshore contended that there was no possibility of certainty in relation to which proposed enterprise agreement the Application related to at the time it was filed on 2 September 2015. It followed, on Skilled Offshore’s argument, that because there was no identified “proposed agreement” as at 2 September 2015, there was no valid protected action ballot order application pursuant to s.437 of the FW Act.
[19] In the alternative, Skilled Offshore submitted that if the Unions had proposed an enterprise agreement by as early as 5 August 2015, then Skilled Offshore had agreed to bargain for the agreement more than 14 days before the NERR was issued by Skilled Offshore on 14 September 2015, with the result that the NERR was invalid because it was not issued in the time required by s.173, and any enterprise agreement negotiated following the issue of such a notice would not be capable of being approved by the Commission. 8 Skilled Offshore’s agreement to bargain for the Unions’ proposed agreement was signified, it was submitted, by the fact that it had engaged in bargaining with the Unions in relation to whether bargaining about that proposed agreement should occur or whether bargaining should take place within an industry framework. It followed, on Skilled Offshore’s argument, that:
(a) there was no “proposed enterprise agreement” within the meaning of s.437 (as it would not be an agreement capable of being made and approved under the FW Act by reason of the failure to comply with s.173);
(b) the Unions cannot have been genuinely trying to make such an agreement; and
(c) any industrial action pursuant to the Application would not be employee claim action as it will not be for the purpose of supporting or advancing claims in relation to the agreement (s.409(1)), will not be organised or engaged in against an employer that will be covered by the agreement, and the bargaining representative will not be genuinely trying to reach an agreement (s.413(3)).
Ground 4
[20] Sections 414(6) and 437(3) of the FW Act both require that the “nature” of the action (being the proposed industrial action the subject of the protected action ballot) must be specified. Skilled Offshore submitted that the form of question 1 to be put to employees in the protected action ballot did not allow for the employees to properly assess the particular protected industrial action in relation to which they would be voting, or the nature of that action.
Ground 5
[21] Skilled Offshore submitted that “industrial action” within the meaning of the FW Act ought not be construed as including action which would be in breach of occupational health and safety law. The Deputy President erred, so it was contended by Skilled Offshore, in holding (at [67]) that “industrial action” includes such action.
[22] Skilled Offshore also submitted that, in circumstances where the application included questions describing conduct that would breach or would have a real and tangible possibility of breaching an employee’s obligations to perform duties under occupational health and safety law, the notice failed to specify the “nature of the industrial action” as required by s.437(3)(b); it specified conduct of a different character.
[23] The Unions submitted that the Deputy President’s decision was not infected with error of the type identified in House v The King 9, and there was no basis to grant leave to appeal. In relation to the specific grounds of appeal, the Unions submitted:
Consideration
Grounds 1 to 3
[24] The object of Division 8 of Part 3-3 of the FW Act is set out in s.436 as follows:
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.
[25] Section 437(1) of the FW Act governs who may apply for a protected action ballot order:
A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.
[26] Section 443(1) of the FW Act sets out the circumstances in which the Commission 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.
[27] We agree with the views expressed by the Full Bench of the Commission in Mermaid Marine Vessel Operations Pty Ltd v The Maritime Union of Australia 10 as to the proper construction of the expression “proposed enterprise agreement” (footnotes omitted):
“[42] It is to be observed from the above, that the Act variously makes reference to a “proposed agreement”, or the ”proposed enterprise agreement” and “proposed single-enterprise agreement” to describe in a particular context the same concept, that is, the agreement that is being proposed by a party wishing to bargain or by one that is actually bargaining. That this is so seems to be confirmed by the Explanatory Memorandum to Fair Work Bill 2008 and its description of the use of the phrase “proposed enterprise agreement” in Parts 2-4 and 3-3 as “a generic term” , and its reference to the decision in Wesfarmers Premier Coal Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Union (No 2) in which French J referred to the use of the words “proposed agreement” in s. 170MI of the Workplace Relations Act 1996 as a “generic term [that] allows for a variety of possibilities”. The content of a proposed agreement need not be settled nor need the scope of a proposed agreement be agreed between the bargaining parties for that which is proposed by one party to bear the character of a proposed agreement or proposed enterprise agreement for the purposes of the Act.
…
[46] 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 [sic; should say s.437] 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.”
[28] A central element of Skilled Offshore’s contention in relation to the implications of the NERR issue date is that the expression “proposed enterprise agreement” in ss.437(1) and 443(1) of the FW Act mean a proposal for an enterprise agreement that is capable of being approved in accordance with Part 2-4 of the FW Act, with the result that a NERR must have been issued in relation to the “proposed enterprise agreement” in accordance with s.173 of the FW Act.
[29] We reject this submission for the following reasons. Sections 437(1) and 443(1) do not define the expression “proposed enterprise agreement”, nor do they refer to provisions associated with approval of enterprise agreements such as s.173 of the FW Act. The requirements of s.173, for example, must have been satisfied in relation to an enterprise agreement which has been “made” under s.182 and in relation to which an application for approval has been lodged under s.185, but there is no requirement under the FW Act for the “proposed enterprise agreement” being considered at the time of an application for a protected action ballot order to satisfy the conditions that must be met in order for an enterprise agreement to be approved. All that is relevantly required in order for there to be a “proposed enterprise agreement” within the meaning of ss.437(1) and 443(1) of the FW Act is an “agreement [which] the bargaining representative applying for an order under [s.437] is proposing at the time the application for a protected action ballot order is made”. 11 It would be an unwarranted gloss on the statute to read into it the later requirements associated with approval of an enterprise agreement that has been “made”.
[30] Accordingly, in our view, the date on which the NERR was issued by Skilled Offshore is irrelevant to the question of whether there was a “proposed enterprise agreement” within the meaning of ss.437(1) and 443(1) of the FW Act at the time the Unions made the Application.
[31] In light of our conclusion as to the proper construction of the expression “proposed enterprise agreement” in ss.437(1) and 443(1) of the FW Act, it is not strictly necessary for us to determine when Skilled Offshore agreed to bargain, or initiated bargaining, “for the agreement” within the meaning of s.173(2) of the FW Act. It is sufficient to say that we are not satisfied that Skilled Offshore has demonstrated that the Deputy President’s conclusion that s.173 had been complied with was in error. In that respect, we consider that Skilled Offshore’s express refusals to issue a NERR prior to 9 September 2015, contrary to the Unions’ requests, supported the inference that it did not agree before that date to bargain for the agreement proposed by the Unions and instead was pushing for an industry bargaining framework.
[32] As to Skilled Offshore’s contention that the discussions between the parties concerning the possibility of bargaining proceeding by way of industry framework negotiations meant there was no certainty in relation to which proposed enterprise agreement the Application related to at the time it was filed, we agree with the Deputy President’s findings and conclusion. In particular, by the time the combined log of claims was served on Skilled Offshore on 5 August 2015, the proposed enterprise agreement being propounded by the Unions was clearly identified. Until 7 September 2015, the Unions were willing to listen to the proposal by Skilled Offshore and the AMMA that bargaining proceed by way of industry framework negotiations. However, at no time did the Unions retract or withdraw their log of claims. Accordingly, as was found by the Deputy President, at the time the Application was filed (2 September 2015) there was a clearly identified “proposed enterprise agreement”, being the log of claims served by the Unions on 5 August 2015.
Ground 4
[33] The Unions proposed that the employees to be balloted be asked the following questions:
“For the purposes of supporting or advancing claims in respect of the proposed enterprise agreement with your employer, do you endorse the following protected industrial action against your employer (to be taken either separately, concurrently and/or consecutively):
1. An unlimited number of stoppages on the performance of work between 30 minutes and up to and including 24 hours? (excluding work that is required by trained and qualified persons of the emergency response teams as required by occupational health and safety legislation and regulations)?
2. Bans on the performance of administrative work (except for the performance of any work required to be undertaken by legislation including any action, process or work consistent with Occupational Health and Safety legislation)?”
[34] There is no appeal in respect of question 2.
[35] As to question 1, we agree with the Deputy President’s findings that the question (a) is sufficiently clear to enable the employees to make an informed choice about whether to approve the nature of the industrial action identified in the question and (b) describes the industrial action in such a way that employees are capable of responding to it. 12 The fact that the expression “taken either separately, concurrently and/or consecutively” appears in the preamble to the questions, rather than separately in each question, does not, in our view, create a “misleading impression” or make unclear the “outer limits” of the proposed industrial action. Accordingly, we reject Skilled Offshore’s arguments in relation to ground 4.
Ground 5
[36] We do not accept that the questions in the PABO made by the Deputy President seek approval for any form of industrial action that is beyond the scope of what is industrial action under the FW Act. The expression “protected industrial action” appears in the preamble to the questions in the PABO and is used to encompass the categories of action specifically identified in the questions, and we see no reason to assign a meaning to that expression which is different to or broader than the same expression used in the FW Act. Indeed, the application of the principle of legality would require the PABO to be read as if incorporating the proper construction of the expression “industrial action” within the meaning of the FW Act. Accordingly, regardless of whether the expression “industrial action” in the FW Act, on its proper construction, excludes action which would be in breach of occupational health and safety law, as contended by Skilled Offshore, or does not, as found by the Deputy President, we reject Skilled Offshore’s argument that the Application failed to specify the “nature of the industrial action” as required by s.437(3)(b) of the FW Act.
[37] Although it is not therefore necessary for us to decide the point, we are of the view that the expression “industrial action” in the FW Act does not, on its proper construction, exclude action which might or would result in a breach of occupational health and safety law. There are three primary reasons for our opinion in that regard:
(a) First, Parliament clearly had in mind risks to occupational health and safety when the definition of “industrial action”, and the exceptions to “industrial action”, were drafted for inclusion in the FW Act (see s.19(2)(c)(i) and (ii) of the FW Act). It would have been a simple matter for a further exception to be included in s.19(2)(c) of the FW Act for action that would or might result in an employee breaching an occupational health and safety obligation, had that been the intention of Parliament;
(b) Secondly, as was found by the Deputy President, other provisions of the FW Act, particularly ss.424, 431 and (to some extent) 415 tell against the construction advanced by Skilled Offshore. There would be little or no point in empowering the Commission to make an order (s.424), or the Minister to make a declaration (s.431), terminating protected industrial action on the basis that such action has “threatened,… is threatening, or would threaten… to endanger the life, the personal safety, or the welfare, of the population or of part of it” if the proper construction of “industrial action” excluded action which might or would result in a breach of occupational health and safety law; and
(c) Thirdly, in our view, there is no inconsistency between, on the one hand, the definition of “industrial action” in the FW Act and the provisions of the FW Act that give employees the right to take protected industrial action in particular circumstances and, on the other hand, the obligations imposed on employees under Federal and State legislation to maintain a safe workplace.
[38] We would also observe that the questions in the PABO do not identify any industrial action which would necessarily or even likely involve a contravention of any relevant statutory occupational health and safety obligation, and the exclusions in the two questions in the PABO appear to us to adequately answer any practical occupational health and safety concerns.
Conclusion
[39] In light of the public interest in the question of the proper construction of the expression “proposed enterprise agreement” in ss.437(1) and 443(1) of the FW Act, we grant permission to appeal but dismiss the appeal for the reasons set out above.
VICE PRESIDENT
Appearances:
S. Wood QC and R. O’Neill counsel for the Appellant.
T. Hammond counsel for the Respondents.
Hearing details:
2015.
Sydney:
26 October.
2 Australian Manufacturing Workers’ Union (AMWU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), The Australian Workers’ Union (AWU)
4 Email from Glenn McLaren to Mark Wakelin dated 19 June 2015 1:13pm (GM-3 to the witness statement of Glenn McLaren dated 9 September 2015).
5 Email from Matthew Dixon to Simon White dated 5 August 2015 7:06pm (MWD-2 to the witness statement of Matthew Dixon dated 9 September 2015).
6 Australian Mines and Metals Association
7 As evident from the combined log of claims served on Skilled Offshore on 5 August 2015.
8 See Transport Workers’ Union v Hunter Operations Pty Ltd [2014] FWC 7469
9 (1936) 55 CLR 499 at [504]-[505]
11 Mermaid Marine Vessel Operations Pty Ltd v The Maritime Union of Australia [2014] FWCFB 1317 at [46]
12 John Holland Pty Ltd v AMWU and AWU [2010] FWAFB 526 at [19]
Printed by authority of the Commonwealth Government Printer
<Price code C, PR573339>