Proposed protected action ballot by employees of Vopak Terminals Sydney Pty Ltd.

[1] This is an edited version of a decision given on transcript earlier today.

[2] The NUW has applied, in accordance with s.451 of the Workplace Relations Act 1996 (the Act), for a protected action ballot of employees at Vopak Terminals Sydney Pty Ltd Port Botany (Bulk Liquids).

[3] I am satisfied that all the relevant requirements of the Act are met and I have decided to make an order generally in the terms sought. The order is to be found at PR976783.

[4] While not taking issue that the requirements of s. 461(1) of the Act have been met, the employer submitted that the Commission should exercise its discretion to refuse the application, as provided by s.461(2). This was on the ground that granting the application would be inconsistent with the object of the division of the Act dealing with secret ballots on proposed protected action (Division 4 of Part 9 of the Act).

[5] That object is to be found at s.449(1) and is in the following terms:

(1) The object of this Division is to establish a transparent process which allows employees directly concerned to choose, by means of a fair and democratic secret ballot, whether to authorise industrial action supporting or advancing claims by organisations of employees, or by employees.

[6] The employer submitted that the question that the NUW proposed should be put to the employees lacked the necessary level of specificity or particularisation that the Act requires. In particular, the proposed question included such a range of different types of industrial action that the employees would be incapable of making an informed choice because they could not know what would be the impact of the action they would be authorising.

[7] The question proposed by the NUW (as amended during the course of proceedings) is as follows:

In support of reaching a union collective agreement with your employer do you support the taking of protected industrial action against your employer which may involve one or more of the following: four hour stoppages of work; 12 hour stoppages of work; 24 hour stoppages of work; 48 hour stoppages of work; 72 hour stoppages of work; strikes for a period of one week; indefinite strikes; indefinite or periodic bans on overtime; indefinite or periodic bans on call backs by terminal operators who are members of the National Union of Workers engaged at the Port Botany site.

[8] Clearly, it is important that employees know when they vote what it is they would be authorising. That is not the same as knowing all the consequences of their decision. There is almost always a degree of uncertainty in embarking on industrial action. One cannot normally be sure, for example, whether the other party will concede quickly, slowly or not at all. Industrial action can be over after a very short period of time or might take many days or weeks. This is something employees have to weigh up carefully for themselves when they vote on industrial action.

[9] There is nothing ambiguous about the proposed question. If the employees vote in the affirmative it is clear they will be authorising a range of industrial action up to and including indefinite strikes. If they do not wish to do so, they are at liberty to vote in the negative.

[10] This is to be distinguished from the case dealt with by the Full Bench in United Firefighters' Union of Australia and Country Fire Authority (8 September 2006, PR973841). In that case some of the proposed industrial action was described in terms that the Full Bench found to be "vague and meaningless". The Full Bench found that the application failed to comply with the requirement of s.452 of the Act because the question that was to be put to the employees did not specify the nature of the proposed industrial action.

A Joseph of counsel for National Union of Workers

Printed by authority of the Commonwealth Government Printer

Printed by authority of the Commonwealth Government Printer