[2010] FWA 7638 |
|
DECISION |
Fair Work Act 2009
s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot
Maritime Union of Australia
v
DP World Adelaide Pty Ltd
(B2010/3446)
COMMISSIONER HAMPTON |
ADELAIDE, 1 OCTOBER 2010 |
Application to extend the 30 day period in relation to PR500024.
Background and outline of the matter
[1] This is an application by The Maritime Union of Australia (the MUA or the union) pursuant to s.459 of the Fair Work Act 2009 (the Act) to extend the period in which certain industrial action must be commenced for the purposes of s.459(1)(d)(ii) of the Act.
[2] The employer is DP World Adelaide Pty Ltd (DP World or the employer) and it has argued that I should not exercise my discretion to extend the period given the state of negotiations towards a new enterprise agreement and the other circumstances of the matter.
[3] This matter was heard on 29 September 2010 during which comprehensive submissions were made, and what was largely agreed evidence, tendered.
[4] Mr Ats (of counsel) appeared with permission for the MUA along with Mr Newlyn, and Mr Manuel (of counsel) appeared with Mr Kay (of counsel) with permission for DP World. 1
[5] A protected action ballot was granted in favour of the MUA by Fair Work Australia on 30 July 2010. 2
[6] The Australian Electoral Commission subsequently conducted a ballot and declared the result in favour of the capacity to take action on 30 August 2010. 3
[7] It is common ground that no notice of industrial action was given and no industrial action has been commenced by the MUA in this matter since the ballot declaration.
[8] The 30 day period referred to in s.459(1)(d)(i) of the Act for the protected industrial action to commence under the terms of the ballot declaration concluded on 29 September 2010.
[9] This application was filed on 24 September 2010 and as would be clear from the above sequence of events, no previous extension to the period has been sought or granted.
[10] The evidence reveals that negotiations were conducted including during the 30 day period and that this has ultimately led to an in-principle agreement between the parties on the major terms of a proposed enterprise agreement. The drafting of the actual instrument is however not well advanced and a document that can be endorsed by the bargaining representatives and provided for employee approval is apparently some weeks away.
[11] Section 459 of the Act provides as follows:
“459 Circumstances in which industrial action is authorised by protected action ballot
(1) Industrial action by employees is authorised by a protected action ballot if:
(a) the action was the subject of the ballot; and
(b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and
(c) more than 50% of the valid votes were votes approving the action; and
(d) the action commences:
(i) during the 30-day period starting on the date of the declaration of the results of the ballot; or
(ii) if FWA has extended that period under subsection (3)—during the extended period.
Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.
(2) If:
(a) the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and
(b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;
then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).
(3) FWA may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:
(a) an applicant for the protected action ballot order applies to FWA for the period to be extended; and
(b) the period has not previously been extended.”
The positions of the parties
[12] The MUA contended that the prerequisites of s.459(3) of the Act had been met and that an order extending the period for a further 30 days should be granted. The union accepted that Fair Work Australia must be satisfied that it should do so but rejected the notion that there was an onus of proof in the same manner as would be applied to a limitations of actions matter, such as an unfair dismissal extension of time. Further, the union argued that traditional concepts of prejudice as considered in those matters were not applicable given the scheme of the Act.
[13] The Union asserted that the scheme of the Act was that subject to certain limitations, protected industrial action could be taken for the purposes of bargaining. Further, that the capacity to seek an extension to the original 30 day limit without conducting a fresh ballot process was clearly intended by the Act as part of that scheme.
[14] In this case, the MUA contended that it had not commenced industrial action during the initial 30 day period because negotiations had progressed and that an agreement in principle had been reached on the basis that it would not undertake such action. It was said that the right to institute action, upon the giving of notice, was a motivating factor in achieving that progress and as an agreement had not been finalised, it should retain access to that right for a further period.
[15] The union argued that it had taken active steps to pursue an agreement and should not now be penalised for not taking industrial action earlier. This was said to be particularly so, given that the negotiation process commenced as long ago as March 2009 and despite the very recent agreement in-principle, there were different expectations as to how quickly the drafting of the agreement should be undertaken and no guarantee of a final agreement.
[16] In terms of other considerations, the MUA contended that in the absence of an extension, and should the final agreement be delayed or not confirmed at all, it would need to make a further protected action ballot application, and if successful then proceed to a further ballot, and only then if endorsed would it be in a position to give notice of industrial action. This was said to be time consuming and would distract resources that could be better directed to reaching an agreement in this matter.
[17] The MUA sought a full 30 day extension on the basis that such would provide the maximum time to actually complete an agreement without forcing the union to contemplate the institution of industrial action in order to preserve its rights.
[18] DP World contended that Fair Work Australia should not exercise its discretion to extend the period for protected industrial action. It did so on the basis that the MUA bears an onus of proof in obtaining the requested extension and that the employer did not need to show why the extension should not be granted. 4
[19] This was reinforced by the fact that the Parliament had not provided a 60 day period to institute industrial action but rather a 30 day period with the right to seek an extension. DP World also contended in that context that Fair Work Australia was not a rubber stamp and was required to exercise its discretion judicially.
[20] DP World argued that an extension of the period was not appropriate in this case because the 30 day period was set in order to provide certainty and given the period since the original ballot, employees may have changed their mind on the appropriateness of taking industrial action. It further argued that any prejudice to the MUA would be small, given that there was an in-principle agreement already and a new ballot process if required, would involve a small number of employees at a single site and only lead to the loss of a “few weeks”.
[21] On the other hand, it was contended that the prejudice to the employer would be that it was exposed to the threat of industrial action beyond the period set out in the Act and that as the MUA had not identified a viable reason why the application should be granted, I should not do so.
[22] The employer also contended that the relevant objects and scheme of the Act should lead Fair Work Australia to consider what approach “would encourage the finalisation of an agreement”. 5 Extra time to take protected industrial action was said not be appropriate in that context.
[23] DP World contended that if an extension was to be considered, it should be a short period given the circumstances of the matter.
[24] The above represent summaries of what were comprehensive submissions as made by the respective counsel. I have however considered the detail of those submissions in determining this matter.
[25] Evidence was provided in the form of affidavits from the following:
[26] In general terms the factual basis for this matter is agreed. There are however qualifications on the evidence arising from the nature of certain elements of the affidavits and I have considered these factors in determining the matter.
Consideration
[27] I am satisfied, and it is not in issue, that the prerequisites for the consideration of an order pursuant to s.459(3) of the Act have been made out. That is, a relevant period during which protected industrial action may be notified and taken has existed as contemplated by s.459(1)(d)(i) of the Act. Further, the MUA as the applicant for the protected action ballot has applied to Fair Work Australia to extend the 30 day period as contemplated by s.459(3)(a) and the period has not already been extended – so as to satisfy s.459(3)(b) of the Act.
[28] On that basis, the discretion to grant the application and extend the 30 day period is enlivened. This discretion is however real, in that an extension need not follow a finding that the prerequisites have been met. I must be positively satisfied on the basis of the material before Fair Work Australia that I should do so. The length of the extension, if one is granted, is also a matter of discretion provided that it is no longer than 30 days.
[29] The discretions in this matter are to be exercised judicially and all relevant considerations taken into account. This includes the scheme of the Act, the conduct and circumstances of the parties and the consequences of any extension that might be granted.
[30] The concept of protected action as part of the bargaining process is clearly part of the scheme of the Act. That is, subject to various limitations and of course the obligation to bargain in good faith, it is contemplated that the parties are able to take protected industrial action to further their respective bargaining positions and objectives.
[31] One of those limitations is that any protected industrial action that is taken must follow an authorised ballot of employees and be commenced within 30 days of the declaration of that ballot. Once commenced, the form of action taken can continue beyond that period provided it is in line with the ballot endorsed action. 8 There is also the capacity for that 30 day period to be extended where Fair Work Australia determines to permit such upon application.
[32] In this case there is no contention that either party has not bargained in good faith. It is also common ground that as a result of the confirmation of positions in the lead up to the hearing of this matter, an in-principle agreement exists as to the basis of a proposed agreement between them.
[33] It is clear to me that Fair Work Australia should avoid an approach to these matters that would encourage a union from taking industrial action in part for the purpose of keeping open the option to take protected action beyond the 30 day period. Further, it would not be appropriate to penalise a party that has acted constructively by not utilising its right to take industrial action.
[34] The approach of the union not to take protected industrial action in this matter has been largely influenced by the view that the potential to give notice was sufficient to advance its interests and more recently because the in-principle agreement between the parties was predicated on the basis that there would no industrial action. I add that unless the in-principle agreement is not honoured by DP World, the institution of industrial action by the MUA would raise serious issues under the good faith bargaining requirements of s.228 of the Act. I also add that there is no indication that either course of action is likely.
[35] I have carefully considered whether it is appropriate to grant an extension for the potential taking of protected industrial action given these somewhat unusual circumstances. On balance, I am persuaded that I should do so. Without canvassing all of the considerations leading to that conclusion, the fact that the MUA has actively pursued its bargaining interests during the 30 day period and has not resorted to protected action for the reasons set out above, are important factors. Further, there is no guarantee that a final agreement will be made, and given the scheme of the Act, the capacity to access protected industrial action for a further period is not in itself inappropriate as part of the bargaining regime.
[36] I accept that there may be occasions where it is appropriate that a fresh ballot be conducted after the initial 30 day period. However such would need to be approached in the knowledge that Parliament has provided for the potential of a one off extension without that course of action and there would in my view need to be some cogent reason to refuse an application on that basis alone. In this case, there is no suggestion that the employees have changed in composition or likely disposition.
[37] I have also considered the circumstances of the employer and its understandable desire to reach an agreement without being subject to industrial action. This is of course the best outcome for all parties but must be considered in the context of the bargaining arrangements of the Act. In this case, it is also desirable that DP World not lose the benefit of its part of the in-principle agreement. That was reached in the context of the initial 30 day period and the same context will operate under any extension. I also note that there are options open to DP World in the event that protected action is taken. These include the pursuit of bargaining orders pursuant to s.230 of the Act and orders to cease or suspend protected action in certain circumstances (including potentially s.424).
The length of the extension
[38] It is evident to me that a short period of extension would not be appropriate or helpful to either party in this matter. It is the apparent desire of both parties to resolve the various drafting challenges and to have an agreement ready for employee approval in the near future.
[39] However, a short period for the extension would have the unhelpful and unintended effect that unless an agreement could be finalised within a very short period, the MUA could be encouraged to take industrial action in order to keep their capacity to take such action alive.
[40] It would seem sensible in the context of this particular matter and the operation of the bargaining arrangements of the Act, that a significant proportion of the potential extension period be provided. In my view, a period of no more than four weeks would be appropriate. This length does extend the period of uncertainty for the employer, but given that an extension is to be granted, it will in the particular circumstances of this matter actually facilitate a better and more constructive process to finalise an agreed document and this is in both parties’ interests.
[41] I would add that as I made clear in an earlier decision referred to by the parties in this matter 9, the grant of an extension to the ballot notice period is not a “blank cheque” to cease bargaining in a manner as required by the Act.
[42] I take the view that any extension pursuant to s.459(3) of the Act must operate from the cessation of the original 30 day notice limit. On that basis the extension in this matter will operate for a period of 28 days commencing on 30 September 2010.
Conclusion and order
[43] I am, for reasons outlined above, satisfied that it is appropriate to grant this application. An order 10 that the 30 day period referred to in s.459(1)(d)(i) of the Act be extended in this matter for a further period of 28 days is being issued by me in conjunction with this decision.
COMMISSIONER
Appearances:
M Ats (counsel with permission) with J Newlyn for The Maritime Union of Australia.
R Manual and M Kay (both of counsel with permission) for DP World Pty Ltd.
Hearing details:
2010
Adelaide
29 September
1 Permission in each case was granted pursuant to s.596 of the Act.
3 Exhibit A1.
4 The employer referred to approach of the High Court in Brisbane South Regional Health Authority v Taylor 186 CLR 541.
5 Transcript PN227.
6 Exhibit A2.
7 Exhibit R1.
8 This is the effect of s.451(1)(d) of the Act.
9 LHMU v Minda Incorporated [2010] FWA 3461.
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