[2018] FWC 4755

Fair Work Act 2009

s.437 - Protected action

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

Steel Building Systems Australia Pty Ltd T/A Supaloc

Proposed protected action ballot of employees of Steel Building Systems Australia Pty Ltd T/A Supaloc; whether question describes the nature of the proposed industrial action.

[1] This is an application by the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order (PABO) in relation to certain employees of Steel Building Systems Australia Pty Ltd T/A Supaloc (Respondent).

[2] On 8 August 2018 my associate was advised that the Respondent objected to the application for an order in the form sought on the basis that the final question "indefinite or periodic partial work bans" of the proposed order has been insufficiently particularised. The Respondent did not otherwise object to the proposed order.

[3] The Respondent did not agree to withdraw or alter the form of the final question in the proposed order and pressed for its inclusion in any order the Commission makes. In the circumstances, I decided to determine the matter by holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Mr C Wright of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement, that there is a valid application and that the requirements in s.443(1) of the Act have been met.

[5] Turning then to the question at issue. The Respondent contends that the question as framed by the Applicant is not sufficiently clear as to the proposed industrial action for which authorisation is sought so as to enable an employee to make an informed choice about whether to approve the industrial action identified. It contends that because of the breadth of the description of the proposed industrial action, employees may not properly understand the consequence of the industrial action in respect of matters such as the impact on payment entitlements and the extent to which some employees may be stood down as a consequence of the taking of particular industrial action. The Respondent contended that the question should identify the actual work that will be the subject of a ban or bans in order that employees have an opportunity to make an informed choice as to whether they will approve such a ban or bans on work.

[6] The Applicant contended that the phrase "partial work bans" as set out in the question is a well understood phrase and indeed is defined in s.470(3) of the Act. It contends that the question it proposes is one that is commonly found in protected action ballot orders made by the Commission.

[7] Section 437(3) relevantly provides that an application for a PABO must specify "the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action". To the same effect, s.443(3) relevantly provides that a PABO must specify "the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action".

[8] Questions in a PABO should be stated with sufficient clarity so as to enable an employee to make an informed choice about whether to approve the nature of the industrial action identified in question.

[9] In John Holland Pty Ltd v AMWU and AWU[1] a Full Bench of Fair Work Australia observed in relation to questions describing the nature of industrial action proposed for a protected action ballot order that:

'. . . 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 at 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 section 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.'[2]

[10] In United Firefighters Union of Australia v Country Fire Authority[3] a Full Bench of the Australian Industrial Relations Commission considered that which was required by s.452 (1) of the Workplace Relations Act 1996 in describing the nature of the proposed industrial action, which in all relevant material respects corresponds to s.437(3) of the Act and said:

"In determining whether to engage in protected action it is reasonable to expect, and in our view a requirement of the Act, that the nature of the proposed industrial action is specified. In our view, this requires employees who will be voting on the questions to understand what work would not be undertaken and what work would remain to be done. The description of the nature of the industrial action in the questions they are asked in the ballot should enable employees to understand the implications for them while at work, and other relevant circumstances".[4]

[11] There is arguably a tension between the decisions in John Holland and UFU v CFA but for the purposes of disposing of the issue requiring determination in this application I need neither to determine whether there is a tension nor, if tension exists how it should be resolved. Though the question describing the nature of the proposed industrial action as "indefinite or periodic partial work bans" is broadly expressed I consider that it describes sufficiently the nature of the proposed industrial action for which authorisation is sought in a manner that will enable the employees to understand the industrial action for which authorisation is sought and to make an informed choice in responding to the question.

[12] The question as framed seeks authorisation for industrial action in the form of one or more partial bans on work usually performed by employees who are to be balloted. It does not involve banning all work as is evident from the word "partial". It may involve banning, over a period of time, all of the work performed by employees but not at the same time. Employees are being asked to authorise banning different aspects of work at different times and for different durations. In other words, employees are being asked to authorise industrial action that will involve banning parts of the duties they are otherwise engaged to perform and over time this may involve in a cumulative sense banning each duty at different times.

[13] Plainly when a partial work ban is imposed on one duty the other duties will continue to be performed. It is not necessary in my view to specify each and every duty that may be the subject of a partial work ban in order that the employees may make an informed choice. Employees are being asked to authorise a flexible campaign of industrial action which will involve inter alia partial work bans on each duty that the employee usually performs, but as is evident from the word "partial", will not pursuant to that authorisation, involve the banning of all work performed by an employee at the same time. Complete stoppages of work are addressed in some of the other questions.

[14] It seems to me unlikely, if the action for which authorisation is sought in the proposed order is authorised by ballot, that a subsequent notice of industrial action given to the Respondent describing the industrial action in the same terms as the question in the ballot will satisfy the notice requirements in s.414(1) and (6) of the Act. But the question that is to be posed to employees cannot be said to fail to describe the nature of the industrial action as is required by ss. 437(3) and 443(3) for that reason alone. Though the phrase "the nature of the industrial action" appears in each section it does not follow that the same level of specificity is required in a ballot question as might be required in a notice under s.414 of the Act.

[15] The underlying purpose of a notice to an employer of protected industrial action and consequently the requirement to "specify the nature of the industrial action" is to alert the employer to the proposed industrial action in order that the employer is able to take appropriate defensive action. A level of specificity beyond that which is contained in the question at issue here would likely be required. Different considerations apply in respect of a question of a protected action ballot order. Here the object is to enable employees to understand the industrial action they are being asked to authorise so that they can make an informed choice and respond to the question. It is unsurprising then that a description of the nature of the industrial action as "indefinite or periodic partial work ban" will at the same time provide a clear enough description of the industrial action for which authorisation is sought in a ballot, but failed to adequately describe the nature of the industrial action in order to enable an employer to take defensive action.

[16] It seems to me that the question proposed also enables employees to understand the implications for them while at work of the imposition of partial work bans as described in the question.

[17] On the face of the question proposed, it describes the nature of the industrial action for which authorisation is sought, and does so in a way that employees are capable of responding to the question. It seems to me that the question is sufficiently clear to enable it to be answered by the employees who will participate in the ballot. I propose to make the order in the form sought by the Applicant.

[18] An order has been separately issued in PR609911.

[1] [2010] FWAFB 526

[3] (2006) 158 IR 120

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