s.451(1) - Application for order for protected action ballot to be held

Appeal against the decision in transcript and the orders [PR973695] of Commissioner Foggo at Melbourne on 17 August 2006 in BP2006/3224 - application for protected action ballot orders - whether application specifies nature of the industrial action - whether applicant genuinely trying to reach an agreement - discretion of the Commission - appeal allowed - orders quashed - Workplace Relations Act s.441, s.449, s.452, s.461.

[1] This is an appeal, for which leave is required, under s.120 of the Workplace Relations Act 1996 (the Act) by the Country Fire Authority (CFA) against the decision of Commissioner Foggo given in transcript on 17 August 2006 and her orders PR973695 made the same day. The decision and orders under appeal arose from an application by the United Fire Fighters Union of Australia (UFU) under s.451(1) of the Act for the conduct of a protected action ballot.

[2] Commissioner Foggo made two orders arising from the application. The first was a substantive order requiring the UFU to hold a protected action ballot of employees of CFA whose employment is subject to a certified agreement known as the Country Fire Authority, United Firefighters Union of Australia Operations Managers/Operational Officers Enterprise Agreement 2002 (the 2002 agreement). The second order required the Australian Electoral Commission (AEC) to compile a role of voters for the ballot as quickly as is practicable pursuant to s.466(b) of the Act. The terms of the substantive order were as follows:

"Pursuant to s.459, s.462 and s.463 of the Workplace Relations Act 1996 (the Act) the Commission orders:

1. United Firefighters' Union of Australia (UFUA) to hold a protected action ballot of employees of Country Fire Authority (CFA) in accordance with the terms of this order.

2. The types of employees who are to be balloted are:

Employees whose employment is subject to the Country Fire Authority, United Firefighters' Union of Australia Operations Managers/Operational Officers Enterprise Agreement 2002 [AG819617] (the Agreement)

provided also that such employees satisfy the eligibility criteria specified in s.467 [s.109R] of the Act.

3. The ballot is to be conducted by the Australian Electoral Commission (Authorised Ballot Agent).

4.1 The CFA is to provide in the manner specified in 4.3, to the Authorised Ballot Agent by 5.00pm on 18 August 2006 a list, meeting the description in 4.2, of all employees whose employment may be subject to the Agreement.

4.2 The list is to be provided in the form of a Microsoft Excel compatible spreadsheet (in a file named according to the format "BP2006 3224 - Employee List"), or in such other form agreed with the Authorised Ballot Agent, and is to contain columns with the following names, and information as indicated by those column names for each member in the list:

• Home, mobile and work telephone numbers [where available]

[note: address information may be provided with different column names if this is more convenient provided that there is a separate column for postcode]

4.3 The list is to be provided by email to the Authorised Ballot Agent at the address "ballot.lists@aec.gov.au" and "lee.jones@aec.gov.au".

4.4 The list must be accompanied by a declaration in accordance with Reg.9.9(2), Ch 2, namely a declaration that the list includes all of the employees who are not a party to an AWA.

5.1 The UFUA is to provide in the manner specified in 5.3, to the Authorised Ballot Agent by 10.00am on 21 August 2006 a list, meeting the description in 5.2, of all members of the UFUA currently employed by CFA. Further, they are to advise which date each member will be attending the ballot.

5.2 The list is to be provided in the form of a Microsoft Excel compatible spreadsheet (in a file named according to the format "BP2006 3224 - Member List"), or in such other form agreed with the Authorised Ballot Agent, and is to contain columns with the following names, and information as indicated by those column names for each member in the list:

• Home, mobile and work telephone numbers [where available]

[note: address information may be provided with different column names if this is more convenient provided that there is a separate column for postcode]

5.3 The list is to be provided by email to the Authorised Ballot Agent at the addresses "ballot.lists@aec.gov.au" and "lee.jones@aec.gov.au".

5.4 The list must be accompanied by a declaration in accordance with Reg.9.9(3), Ch�2, namely a declaration that the list includes all of the employees whose employment would be subject to the proposed agreement.

6. The ballot is to be an attendance ballot and is to be a secret ballot.

7. The timetable for the ballot is to be as follows:

7.1 The roll of voters is to close on 21 August 2006 at 5.00pm.

7.2 Voting is to take place at a location or locations to be further ordered.

7.3 Voting is to start at a time to be further ordered on 25 August 2006 and 29�August 2006.

7.4 Voting is to close at a time to be further ordered on 25 August 2006 and 29�August 2006 and only votes cast before this time may be counted.

8. Voting must take place during the voters' meal-time or other breaks, or outside their normal hours of employment.

9. The question(s) to be put to the relevant employees in the ballot are:

"Do you support the taking of industrial action, as set out in Schedule 1, in support of the union's claim for a proposed collective agreement with you employer?

10. That the CFA is to display any information sheet prepared by the Authorised Ballot Agent in accordance with the directions given by the Authorised Ballot Agent. [see Reg 9.8 in Ch 2]

11.1 immediately provide answers to any requisitions made by the Authorised Ballot Agent ; and

11.2 notify the Authorised Ballot Agent of the names of the scrutineer(s) that they propose to authorise at least two days before voting commences.

11.3 notify the Commission by 5.00pm on 18 August 2006 of the location of the ballots on 25 August 2006 and 29 August 2006 and also the convenient commencement and closing times, on both dates, for the conduct of the ballot."

[3] The question to be put to relevant employees, as set out in clause 9 of the order, made reference to industrial action "as set out in Schedule 1." There is no Schedule 1 to the order. However it is sufficiently clear that this is a reference to Schedule 1 of the application made by the UFU in the matter. Schedule 1 in the application set out the proposed industrial action and is in the following terms:

1. Industrial action in the form of bans on performing work described in Service Delivery Continuity Plans, save for any such work which involves emergency response.

2. Industrial action in the form of bans on administration and/or reporting with respect to:

a. Area Service Agreement completion, planning and reporting;

b. Section 44 reports (regular report to the CFA Board by Operational Managers and Area Managers regarding the administration of the Country Fire Authority Act 1958);

c. Hazardous Material Incident charging and reporting;

3. Industrial action in the form of bans on administration and reporting relating to Section 29 inspections (annual inspection of the operational efficiency of all brigades (volunteer and integrated) that is reported to the CFA Board), other than for matters that support or assist the welfare of the Brigade concerned and its members. Section 29 inspections would continue to be performed as usual, however the only entry to be completed in the Section 29 computerised reporting system would be the time and date of the inspection.

4. Industrial action in the form of bans on attending or participating in meetings or conferences with senior management CFA personnel, including but not limited to:

b. Operations Manager and Operations Officer conferences;

c. Meetings at any location including personnel of and above the positions of Area Manager, Deputy Chief Officer and Executive Manager;

e. Integrated Municipal Fire Management Planning (IMFMP);

but not including meetings to facilitate the negotiation of a collective agreement;

5. Industrial action in the form of bans on complying with any orders, directions and/or instructions issued by the employer to act in a way that is contrary to the protected industrial action that is taking place.

6. Industrial action in the form of bans on participation in or co-operation with any investigation, hearing or inquiry into or arising from any conduct or other activities or actions related to the taking of protected industrial action.

7. Industrial action in the form of bans on making any entry that relates to protected industrial action in any official book, document or record."

[4] Commissioner Foggo heard the application for an order for a protected action ballot to be held on 17 August 2006. At the conclusion of the hearing, Commissioner Foggo announced her decision and gave brief reasons in transcript at the conclusion of the parties' submissions. The Commissioner began by expressing her satisfaction as to the requirements of the Act being fulfilled and held that in those circumstances the Commission was bound to grant the application. The Commissioner said:

"The powers are not discretionary and I will proceed to authorise the application for the ballot." [1]

[5] The Commissioner then proceeded with her reasons for finding that the nature of the industrial action was sufficiently clear for the employees of the CFA to make an informed decision about the type of action that was contemplated. Commissioner Foggo noted the UFU's undisputed contention that the proposed action was similar, if not the same, as previous action that had been taken between October and December 2005 and stated as follows:

"And importantly in my view, with the knowledge I do have of this industry, the matters which are referred to at point 2 of schedule 1 are matters on which I would expect employees of the CFA to have a reasonable or sound knowledge." [2]

[6] Turning to the issue of the UFU's proposed deed covering prohibited matters, Commissioner Foggo found that the demand in respect of its content had been made prior to the commencement of the bargaining period. The Commissioner then determined that the CFA had not advanced anything to demonstrate that the demand had been pressed since the commencement of the bargaining period.

[7] An appeal against the decision and orders was lodged on 18 August 2006 and heard on 22 August 2006. At the conclusion of the hearing we announced that we had decided that leave to appeal should be granted, the appeal should be allowed and the orders made by Commissioner Foggo on 17 August 2006 should be quashed. The following sets out the reasons for our decision.

[8] The application for an order for the conduct of a protected action ballot relates to negotiations for a union collective agreement with respect to employees covered by the 2002 agreement. A bargaining period with respect to the negotiations was initiated by notice to the Country Fire Authority dated May 2006. The application to the Commission for a protected action ballot order was accompanied by a statement by the Victorian Branch Secretary that the industrial action to which the application relates is not for the purpose of supporting or advancing claims to include in the proposed collective agreement any prohibited content. In early May 2006, shortly after the notice was provided by the UFU initiating a bargaining period, the UFU wrote to the CFA attaching a draft clause regarding the proposed agreement and a draft memorandum of agreement which was intended to be a separate deed of agreement to the union collective agreement that was being negotiated. The proposed draft clauses to be included in an appropriate deed of agreement between the parties related to classification maintenance, redundancy and Australian Workplace Agreements (AWAs). The proposed clause dealing with AWAs was in the following terms:

"The CFA shall not offer any employee an Australian Workplace Agreement, nor employ any employee under the terms of an Australian Workplace Agreement. (In this clause "Australian Workplace Agreement" includes a similar statutory instrument how so ever called)."

[9] The draft memorandum of agreement covered various matters including employee representation, industrial training leave, Australian Workplace Agreements and job security. The claim on job security related to the non-engagement of contractors, or persons not covered by the Enterprise Agreement, to perform the primary objectives contained within the position description of the relevant employees.

[10] Apart from some documents which were tendered without objection in the appeal proceedings, the facts concerning the bargaining process were confined to conflicting assertions from the bar table by the respective advocates of the UFU and the CFA. The representative of the UFU made the following assertions:

[PN22] "On that document I've listed the negotiation dates, when meetings have occurred. These have occurred for some duration, usually three or four hours, and these are only the dates that have occurred since the initiation of a bargaining period, BP2006/2621. As I said, there's been a raft of negotiation sessions prior to Work Choices to try and achieve the same sort of end, but in terms of the legislation that is before us at the moment, these are the negotiation sessions that have occurred since the new bargaining period after Work Choices was initiated."

[PN28] "The second basis is that the UFU is currently pressing for a memorandum of agreement or deed of agreement with the CFA which contains a number of proscribed matters within it and which, as we understand it, is intended to sit, if you like, alongside the certified agreement.

[PN78] But if the Commission were to address the issue, in my submission it is fatal to this application that at this point in time the UFU have been pressing for a memorandum of agreement which, on any view of it, could not be the subject of a certified agreement because it contains proscribed content. Now, I've indicated in summary, some of the provisions that are sought in the memorandum of agreement and when one has regards to the regulations, it's clear that in those circumstances those matters are proscribed matters.

[PN79] There's also a contracting out clause in the memorandum of agreement and I have copies of that which I could hand to the Commission if that proved necessary, but I don't understand it to be dispute, but the memorandum of agreement does contain what is now described as proscribed content and in those circumstances it could not be the subject of a certified agreement."

[12] The UFU responded to these matters on transcript in the following terms:

[PN99] "The other argument that my colleague raises about failure to genuinely seek an agreement, yes the UFU is seeking a memo, a deed if you like, but I can assure the Commissioner that since from the period since BP2006/2621 has come into effect negotiations have been limited to matters that are not prohibited content. We have been very disciplined in our negotiations. We have been aware of prohibited content and how it could be fatal to any application for protected action and so we've constrained our negotiations. I've got notes of the various meetings. So we haven't dealt with matters that are of a prohibited nature during those negotiations.

[PN100] Those matters that may ultimately reside in the deed have been set aside from the period since BP2006/2621 came into effect.

[PN106] Yes, 2621 is the bargaining period number. It is confusing, Commissioner, and in fact I spoke to your associate yesterday to clarify the matter. So on those grounds, Commissioner, the UFU would say that the protected action that is being proposed, the ballot we'll decide on, is action that has occurred previously, it is action that is understood by the members as to what they will be doing or not doing because they have had a hand in its development and in terms of the argument that we've been pressing for matters that would be outside of the agreement, those matters have been set aside during negotiations and we've been concentrating on those matters that aren't prohibited content in the negotiations since BP2006/2621 came into effect. Thank you, Commissioner."

[13] Counsel for the CFA made the following assertions in response:

[PN100] "With respect to genuinely trying to reach an agreement my instructions differ from that of the union as to the role of the agreement, the memorandum of the agreement has played. On my instructions, my client has been told that reaching a certified agreement is contingent upon it agreeing to this memorandum of agreement. You don't get a certified agreement unless you cave in on the demands that are contained in the memorandum of agreement. And in those circumstances it is impossible, in my submission, to divorce them. Further, there have, on my instructions, been discussions about the matters contained within the memorandum of agreement in some of the meetings that have concerned the certified agreement."

[PN101] So in those circumstances - and can I say, Commissioner, I have just been provided with a letter from Mr Marshall to Ms Lewis of 8 May in which he was putting forward a draft clause to be included in the memorandum of agreement. So it's just not correct, with respect, to be saying that the union has put this on the backburner, if you like, and left it in abeyance until the certified agreement has been reached. For those reasons, Commissioner, we would press the submission that the application for a ballot should be dismissed. If the Commission pleases."

[14] The notice of appeal listed eight grounds of appeal. Counsel for the appellant conveniently summarised eight grounds into three appeal issues, the essence of which was as follows:

• whether the application complied with s.452(1) of the Act;

• the basis for the Commission to be satisfied, under s.461 of the Act, that the applicant was genuinely trying to reach agreement with the appellant; and

• the proper exercise of the discretion under s.461(2) of the Act.

[15] The nature of an appeal against a decision or order of a member of the Commission is dealt with in Coal & Allied Operations Pty Limited v Australian Industrial Relations Commission and others [2000] HCA 47; (2000) 203 CLR 194. (Coal & Allied) It is well established that an appeal is by way of rehearing. Where the decision or order under appeal arises from the exercise of a discretion, whether general or confined, it is to be determined on the basis of the principles enunciated by the High Court in House v R [1936] HCA 40; (1936) 55 CLR 499. Where the subject matter of the appeal involves the determination of jurisdiction or the existence of a jurisdictional fact, there is no discretion involved. Hence an appeal against such a finding proceeds on the basis of determining whether the appeal bench is of the view that the decision maker was in error in the finding that is subject to challenge.

[16] In our view, the appeal grounds relating to s.452 involve a challenge to a finding which is not of a discretionary nature. The appeal grounds which relate to s.461(2) clearly involve questions of discretion and therefore need to be considered on the basis of the principles contained in House v R. Given the words in the preamble to s461(1), we are not sure that the decision can be properly described as of a discretionary nature. For the purposes of the appeal, we are prepared to assume that the level of satisfaction in s.461(1)(a) and (b) does involve a discretion in the broad sense described in Coal and Allied at paragraph [19] and [20]. We indicate however that in this case, our conclusion would be the same if the satisfaction required by s.461 is considered to be a finding of jurisdictional fact.

[17] Division 4 of Part 9 of the Act contains detailed provisions regarding secret ballots for proposed protected action. The object and overview of the Division is expressed in s.449 as follows:

"449 Object of Division and Overview of Division

(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.

(2) Under Division 3, industrial action by employees is not protected action unless it has been authorised in advance by a secret ballot held under this Division (a protected action ballot). This Division establishes the steps that organisations of employees, or employees, who wish to organise or engage in protected action must take in order to:

(a) obtain an order from the Commission that will authorise a protected action ballot to be held; and

(b) hold a protected action ballot that may authorise the industrial action."

[18] Under s.445 of the Act, industrial action is not protected unless the action has either been authorised by a protected action ballot, or is in response to industrial action by the employer against employees whose employment will be subject to the proposed collective agreement. Ballots and ballot orders are protected from challenge under s.487-489 of the Act. The steps required to be taken for the purposes of obtaining an order for the conduct of a protected action ballot are to be found in Division 4 of Part 9 of the Act. For present purposes, those requirements include matters which must be contained in the application in accordance with s.452(1) which is expressed in the following terms:

(a) the question or questions to be put to the relevant employees in the ballot, including the nature of the proposed industrial action;

(b) details of the types of employees who are to be balloted;

(c) any details required by Rules of the Commission (see subsection (3))."

[19] Section 461 deals with the task of the Commission in hearing and determining applications. It provides:

"461 Application not to be granted unless certain conditions are met

(1) The Commission must grant an application for a ballot order if, and must not grant the application unless, it is satisfied that:

(a) during the bargaining period, the applicant genuinely tried to reach agreement with the employer of the relevant employees; and

(b) the applicant is genuinely trying to reach agreement with the employer; and

(c) the applicant is not engaged in pattern bargaining.

Note 1: An application for a ballot order must comply with the requirements set out in Subdivision B.

Note 2: To work out when a bargaining period began, see section 427.

Note 3: For other provisions relating to pattern bargaining, see:

When Commission has discretion to refuse application

(2) Despite subsection (1), the Commission may refuse the application if it is satisfied:

(a) that granting the application would be inconsistent with the object of this Division (see section 449); or

(b) that the applicant, or a relevant employee, has at any time contravened a provision of this Division or an order made, or direction given, under this Division."

[20] As noted above, the requirement in s.452(1)(a) is that the application for a protected action ballot must include the question or questions to be put to the relevant employees in the ballot, including the nature of the proposed industrial action. If industrial action is approved by a secret ballot, and all other pre-requisites for protected action are present, a written notice to the employer of intended industrial action is required to state the nature of the intended action and the day when it will begin (see s.441(6)). It was submitted by Mr. Parry SC, who appeared with Mr O'Grady for the CFA, that the use of the same words in s.441(6) and s.452(1) requires a similar approach - albeit that the notices are directed on the one hand to an employer, and on the other, to employees. As a matter of construction we believe this is correct. Further, while the intention of the legislature can only be gleaned from the provisions of the legislation in this case, it appears logical that when employees are asked whether to authorise industrial action in a protected action ballot, the nature of the proposed industrial action is expressed clear enough to enable them to make an informed choice.

[21] The predecessor to s.441(6) was s.170MO(5). The latter section was considered by a Full Court of a Federal Court in Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999) 91 FCR 463. At paragraph 88 the Court said:

"[88] It will be apparent we think it necessary, and sufficient, for parties to describe the intended action in ordinary industrial English; for example, 'an indefinite strike of all employees', 'a lockout of all employees employed in the AB fabrication plant', 'a ban on overtime', 'a ban of the use of MN equipment', 'rolling stoppages throughout the mine', 'a ban on the servicing of delivery vehicles'."

[22] The Federal Court has found serious questions to be tried in relation to whether notices adequately describe the nature of the intended industrial action in PWB Anchor v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1482 (13 October 2000) per Goldberg J at paragraphs 24 and 25; Adelaide Brighton Cement v Australian Workers Union [2002] FCA 601 (10 May 2002) per Von Dossa J. at paragraphs 20-22 and Burswood Resort (Management) Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union [1999] FCA 1443 (27 August 1999) per Carr J at paragraphs 13-20.

[23] We have considered whether there is anything to the contrary in the decision of Gyles J in United Collieries Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] FCA 904. In that case, Gyles J considered a submission on behalf of United Collieries that each form of industrial action authorised in a ballot is self contained and once it occurs prior to the exploration of the 30 day period dealt with in s.478 it could not reoccur thereafter. In relation to those submissions, Gyles J said (at paragraph 21):

"21. I am not persuaded that the relevant provisions of the Act are as restrictive as is submitted on behalf of United Collieries. The issue really is whether each question passed at the ballot properly describes industrial action. If a question in the form of question 1 is answered in the affirmative, then industrial action of a particular nature is authorised with no time limits. The effect of the position of the United Collieries is that there is an unspoken limitation that action would have to take place within the 30 day period. I disagree. The relevant period for industrial action, having in mind the scheme of the part of the Act in question, is the bargaining period, not the 30 day period. The existence of the 30 day period does not affect the answer to the question as to whether industrial action has been properly authorised. The purpose of the time limit in question needs to be considered. It is a time limit for commencement of industrial action, not a time limit for completion of industrial action. The bargaining period provides that limit. In my opinion the purpose of the provision is to ensure that the employees are voting on a real proposal based upon relatively contemporaneous circumstances. A commitment to relatively prompt action is involved, rather than simply giving an authority which can be held up the sleeve of those negotiating for the employees.

22. The grammatical argument advanced by United Collieries is unconvincing. The phrase "the action" refers back to "industrial action". There is of course, the need to specify the industrial action but there is no indication that that must be done by reference only to specific instances of it. A consequence of the argument for United Collieries is that a separate ballot would be required before each instance of, eg, a 24 hour stoppage, a ban on the working of non-rostered overtime or a shift stoppage. Bearing in mind the detailed and formal nature of conducting a ballot and the consequent time and cost, that would be an unlikely result."

[24] In our view, the issues considered by Gyles J were different from those now before us.

[25] Counsel for the CFA submits that each of the proposed industrial actions in paragraphs 1-7 of Schedule 1 to the application set out above, has ambiguities and uncertainties. For the sake of this appeal, primary focus was placed on paragraph 5. It was submitted that the paragraph is ambiguous, unclear and meaningless and that it does not specify the nature of the industrial action in any sense. Mr Parry submitted that it apparently requires an assessment by the employee to ascertain whether any order or direction issued by the employer is contrary to the protected action that is said to be taking place. He said that this requires employees to make a number of assessments before that industrial action can be protected and brings a totally subjective approach to what is, or might be the industrial action.

[PN195] "Paragraph 5 goes to how to deal with situations where the employer issues a direction or instruction that is contrary to the protected action that's taking place. For instance, the section 44 reports in 2(b) of the action, if there was some direction or order by a more senior member of the CFA to undertake that sort of action then the operational officers and managers would rely upon that number 5 to be able to say that this is protected action that they're taking and so they would not so undertake the section 44 reports that are indicated in 29(b).

[PN197] It arises from a custom and practice where often the protected action is challenged by senior management and orders are given, directions issued that would contravene the action in an attempt to try and break or diminish the protected action and so that's a clause that's inserted to give our members some comfort so that they can then report back to their superior that the action that they're taking is one of protected action and that to instruct them to do otherwise would be unprotected action on the part of the employer."

[27] In response to a question as to the limits of paragraph 5 of the schedule Mr Pargeter said:

[PN207]: "Well, the limits relate to the action that is specified in 1 to 4 and 6 to 7 essentially. It's a bit of a catchall to provide some comfort to the members that the action that they're taking is of a protected nature and if they're instructed or if they are ordered to undertake action which would be unprotected action of the employer to ask them to break the protection, then they will rely upon number 5 to achieve that end so that they're not exposed. I will take you to a matter that my colleague raised that the provisions of number 1 are effectively to protect or in some way bolster the actions of fire fighters who may be taking protected industrial action, the UFU would assert that that's supposition. There's no protected industrial action taking place as far as fire fighters are concerned for their agreement which is the CFA UFU Operational Staff Agreement, nor is any intended. So to raise that is really a bit of supposition and a bit of a hypothetical to run that type of argument."

[28] The schedule of proposed industrial action is effectively a series of bans described in a variety of different ways. A central concept appears to be the first ban expressed as bans on performing work described in service delivery continuity plans. A copy of the overarching service delivery continuity plan for EBA negotiations 2006 was tendered in the proceedings before us. It is a 27 page document which deals with the maintenance of service delivery and public safety in the event of industrial action. It was submitted by counsel for the CFA that 20 other plans exist with respect to the various regions and it ought not to be assumed that they are all the same. Paragraph 5 proposes industrial action in the form of bans on complying with any orders, directions and/or instructions issued by the employer, to act in a way that is contrary to the protected action that is taking place.

[29] In our view, the submissions by the CFA, in respect in paragraph 5 at least, are correct. Paragraph 5 does not specify any particular industrial action - but rather is an attempt to adopt a catch-all category of bans on complying with directions from the employer where the effect of the direction is to act in a way contrary to the protected industrial action. This may involve directions to perform alternate duties to those subject to protected action bans. A ban on such alternate duties may change from time to time depending on the nature of directions given by the employer to respond to protected action. We do not believe that proposed industrial action described in that manner satisfies the requirement in s.452(1) that the question in the application include the nature of the proposed industrial action. Rather the description is a general category of unspecified action. In our view, it is vague and meaningless.

[30] We also have significant concerns about the description of the proposed industrial action in several of the other paragraphs. While some of the bans are specified, others are expressed by reference to vague concepts.

[31] 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.

[32] For the reasons outlined above we are of the view that the proposed industrial action contained in Schedule 1 did not satisfy the description of 'the question to be put to the relevant employees in the ballot including the nature of the proposed industrial action'. We therefore are of the view that Commissioner Foggo was in error in finding that the application complied with s.452 of the Act.

[33] The task of the Commission in determining an application for a protected action ballot is set out in s.461 of the Act which is set out above. The section requires the Commission to grant an application for a ballot order if it is satisfied of certain circumstances and precludes the Commission from granting the application unless it is satisfied that those circumstances exist. This is subject to a qualified discretion in s.461(2). For present purposes the relevant requirements in s.461(1) are paragraphs (a) and (b). These involve the same concept of determining whether the applicant has and is genuinely trying to reach agreement but the paragraphs are expressed by reference to different points in time. Section 461(1)(a) requires the Commission to be satisfied that the applicant genuinely tried to reach agreement during the bargaining period. The requirement in s.461(1)(b) is expressed by reference to the present, or the time of making and determining the application. The combined effect of the provisions is that the applicant must not only have genuinely tried to reach agreement during the bargaining period but must also be genuinely trying to reach agreement at the time the application is bought before the Commission.

[34] As indicated above, the material before the Commission was confined to conflicting assertions from the bar table. Counsel for the CFA submits that the approach of the Commission in relation to assertions from the bar table should be consistent with the decision of the High Court in R v The Commonwealth Conciliation and Arbitration Commission; ex parte The Melbourne and Metropolitan Tramways Board [1965] HCA 50; (1965) 113 CLR 228 at 243 where Barwick CJ said:

"The Commissioner was not disentitled to act upon the assertions of the Union advocate, merely because they were not made on oath, or because he might not have been competent as a witness according to the ordinary rules of evidence to make them. No doubt, if the correctness of his assertions were challenged, it would at the least be imprudent on the part of the Commissioner not to have further examined the matter, so as to satisfy himself of the actual facts, if need be, by evidence formally given. But there was nothing in the instant case which, it seems to me, the Commissioner might not properly regard in the circumstances as sufficiently "evidenced" by the statements of the Union advocate."

• to be satisfied of a matter, the Commission must base its decision on relevant considerations and evidence: Coal & Allied v Construction, Forestry, Mining & Energy Union (1998) 80 IR 14 at 29, 30.

• as in any other proceedings before the Commission, the onus on establishing relevant requirements for an application rests on an applicant.

• in the case of the requirements under s.461 of the Act, the Commission must not grant an application unless it is satisfied of the relevant circumstances.

• in the circumstances of this case, it was clear in the proceedings before Commissioner Foggo that negotiations had been proceeding on both the content of a Workplace Agreement and claims in respect of a deed.

[36] There was no dispute that the claims included in the deed involved prohibited content for the purposes of the Act. Conflicting assertions were made as to the current status of the claims regarding prohibited content. Counsel for the CFA relied on the decision of Vice President Watson in National Union of Workers v Blue Circle Transport Pty Ltd [PR973654] at paragraphs 20 and 21 where it was said:

"[20] Counsel for Blue Circle contends that if a union makes a claim during a bargaining period that include matters which would be prohibited content in a collective agreement under the Act, the union is not genuinely trying to reach an agreement within the meaning of that term in s.461. Reliance is placed on the decision of Senior Deputy President Acton in AFMEPKIU v Kempe Engineering Services Pty Ltd where Her Honour said at [24]:

"In the circumstances, I am not satisfied that during the bargaining period, the AMWU genuinely tried to reach agreement with Kempe on the union collective agreement for Moon Street. I do not think a union can be regarded as having genuinely tried to reach agreement with the employer of relevant employees during a bargaining period if, during that period, the union has made what is clearly prohibited content part of its claims in respect of its proposed union collective agreement with the employer. The inclusion of what is clearly prohibited content in a union collective agreement is something an employer is unlikely to agree to because of the potential consequences for the employer of doing so. Similarly, I do not think a union can be regarded as genuinely trying to reach agreement with the employer of relevant employees, if it makes what is clearly prohibited content part of its claims in respect of its proposed union collective agreement with the employer."

[21] I agree, with respect, with Her Honour's analysis. I am also of the view that the same conclusion arises if claims for prohibited content to be included in a separate document are being pursued in conjunction with claims for a collective agreement. It is clear in my view that the claims made by the union on 20 April 2006 included claims for prohibited content. However the critical question in this case is whether the applicant genuinely tried to reach agreement with the employer during the bargaining period notwithstanding that, as at 20 April 2006 at least, it advanced claims which included prohibited content."

[37] Counsel for the CFA submitted that to the extent that a contrary position was expressed by Acton SDP in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Cadbury Schweppes [PR973290] the decision of Blue Circle is to be preferred. Counsel relied on the Full Bench decision in Wattyl Australia Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2005) 148 IR 32 at paragraph 19 where the Full Bench said:

"The LHMU also submitted that by its terms the claim for a deed dealing with payroll deductions and other matters which do not pertain was not a claim relating to the agreement to be presented to the Commission for certification. That submission does not advance the LHMU's contention that the threatened action would be protected. It tends to support the opposite conclusion. The claim for a deed had not been withdrawn and was part of the LHMU's final offer at the time the industrial action would be to support or advance all of the claims including the claim for a deed to deal with matters which did not pertain. Industrial action to support or advance such a claim could not be "in respect of the proposed agreement" for the purposes of s.170ML(2)(e). The action would not therefore be protected. If the LHMU's contention were correct, protected action could be taken in relation to all manner of claims which do not pertain provided there were simultaneous claims for an agreement comprised wholly of matters which do pertain."

[38] In our view, the pursuit of claims which involve prohibited content at the same time as seeking a Workplace Agreement, whether the prohibited content forms part of the proposed agreement or otherwise, strongly suggests that the Union is not genuinely trying to reach a Workplace Agreement which complies with the requirements of the Act. In the circumstances of this case, claims for prohibited content had been made, and at no time prior to, or during the proceedings before the Commissioner, was there any reliable evidence to show that the claims were no longer being pursued or were otherwise irrelevant to the negotiations for a collective agreement. In these circumstances, we do not believe that the Commissioner could have been satisfied that the UFU was genuinely trying to reach an agreement during the bargaining period, or at the time of the application.

[39] For these reasons we are of the view that Commissioner Foggo erred in reaching the level of satisfaction contained in s.461(1) of the Act.

[40] Counsel for the CFA submits that s.461(2)(a) clearly confers upon the Commission a discretion to refuse the application, even where it is satisfied of the matters set out in s.461(1). Counsel submits that it is apparent from paragraph 13 of the transcript extracted above that the Commissioner did not consider that she had a discretion in respect of the application.

[41] To the extent that the Commissioner indicated that the powers regarding a protected action ballot are not discretionary, this is clearly inconsistent with s.461(2). The relevant statutory provision was drawn to the Commissioner's attention in the written submissions of the CFA. Matters concerning the description of industrial action and the failure to genuinely seek an agreement were raised as reasons why the statutory provisions were not satisfied, and the application should be dismissed. Each of these matters is capable of bearing on the discretion contained in s.461(2).

[42] Division 4 is contained in the Part of the Act which deals with the right to take protected industrial action for the purpose of supporting or advancing claims made in respect of a proposed collective agreement. The Object of the Division is to provide 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 for a collective agreement. In our view, a ballot on questions which are vague and capable of different meanings is not consistent with the Object. Further, in our view, a ballot which seeks authorisation for industrial action for dual purposes of advancing claims for a collective agreement and other claims is not consistent with the Object of the Division. In our view the failure to recognise and apply the discretion in s.461(2) represents an error in the decision making process of the Commissioner.

[43] For the reasons outlined above, the decision of Commissioner Foggo and the orders made were not consistent with the requirements of the Act for protected action ballots. We grant leave to appeal, allow the appeal and quash the orders made by Commissioner Foggo on 17 August 2006.

F Parry SC and C O'Grady for the Country Fire Authority.

G Pargeter for the United Firefighter's Union of Australia.

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