[2021] FWCFB 1562

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Transport Workers' Union of Australia
v
Prosegur Australia Pty Ltd
(C2021/754)

VICE PRESIDENT HATCHER
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT ASBURY

SYDNEY, 23 MARCH 2021

Appeal against decision [2021] FWC 645 of Deputy President Dean at Sydney on 11 February 2021 in matter number B2021/53.

Introduction and background

[1] The Transport Workers’ Union of Australia (TWU) has lodged an appeal, for which permission to appeal is required, against a decision 1 and order2 of Deputy President Dean made on 11 February 2021 concerning an application for a protected action ballot order made by the TWU pursuant to s 437 of the Fair Work Act 2009 (FW Act). The order sought by the TWU related to its members employed by Prosegur Australia Pty Ltd (Prosegur), a cash transportation business, with which the TWU was bargaining for an enterprise agreement. In her decision, the Deputy President determined to make an order pursuant to s 443 of the FW Act as sought by the TWU, but acceded to a submission made by Prosegur to not include in the order one of the questions (question 12) sought by the TWU. In its appeal, the TWU contends that the Deputy President erred in a number of respects by excluding question 12 from the order.

[2] In its notice of appeal, TWU requested that this appeal be heard and determined on an expedited basis as the order provides that voting in the protected action ballot for which it provides shall close no later than 25 March 2021 and, as a consequence, the appeal would be rendered nugatory if the matter was not determined before this date. Accordingly, the matter was set down for hearing before us on 11 March 2021 and we have dealt with it on an expedited basis. On the day of the hearing, shortly before the commencement of the hearing, the Commission received an email from Prosegur’s legal representatives which relevantly stated:

“A preliminary issue will arise in the appeal, due to the development that a majority of employees approved a proposed agreement on 10 March 2021.

The Respondent’s position is that permission to appeal should be denied, as it lacks utility and the appeal is not in the public interest, because an agreement has been ‘made’ within the meaning of s182(1), and therefore the statutory basis for taking protected action no longer exists.

The Appellant’s position is that it is not correct that the appeal lacks utility as, unless and until the agreement said to have been made is approved by the Commission, the appellant’s position is that protected industrial action is still able to be taken by employees.”

[3] The background to the matter is as follows. The TWU lodged its application for a protected action ballot order on 4 February 2021. The order sought related to bargaining between TWU and Prosegur for a new enterprise agreement to replace the Prosegur Australia Pty Limited Armoured Vehicle and other Operations (Lane Cove, Newcastle, Smithfield Branches) Enterprise Agreement 2017-2019, which has a nominal expiry date of 16 January 2020. The order sought by the TWU contained the following questions:

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 taking separately, concurrently and/or consecutively, any or all the actions set out below:

Question 1
An unlimited number of indefinite bans on the working of overtime?

Yes [ ] No [ ]

Question 2

An unlimited number of stoppages of work for 1 hour?

Yes [ ] No [ ]

Question 3

An unlimited number of stoppages of work for 2 hours?

Yes [ ] No [ ]

Question 4

An unlimited number of stoppages of work for 4 hours?

Yes [ ] No [ ]

Question 5

An unlimited number of stoppages of work for 8 hours?

Yes [ ] No [ ]

Question 6

An unlimited number of stoppages of work for 24 hours?

Yes [ ] No [ ]

Question 7

An unlimited number of stoppages of work for 48 hours?

Yes [ ] No [ ]

Question 8

An unlimited number of indefinite stoppages of work?

Yes [ ] No [ ]

Question 9

The wearing of union clothing, badges and other union campaign items and the placing of union campaign material in the workplace?

Yes [ ] No [ ]

Question 10

An unlimited number of bans or indefinite bans on wearing uniforms?

Yes [ ] No [ ]

Question 11

An unlimited number of bans or indefinite bans on refueling vehicles?

Yes [ ] No [ ]

Question 12:

An unlimited number of periodic or indefinite partial work bans?

Yes [ ] No [ ]

[4] On 8 February 2021, Prosegur advised the Commission that it did not oppose the making of the order sought, but objected to the inclusion of question 12 in the order on the basis the question did not satisfy the requirements outlined in ss 437(3) and 443(3) of the FW Act for specification of the nature of the proposed industrial action (Prosegur also sought a requirement for seven instead of three working days’ notice in relation to proposed industrial action, and obtained an extension of the notice period to five working days, but this is not challenged in the appeal). On 9 February 2021, a conference before the Deputy President failed to resolve the issues raised by Prosegur, and on that basis, a hearing was listed before the Deputy President on 10 February 2021. At the hearing, evidence was adduced by Prosegur from Mr Gavin Lynch, its National Workplace Relations Manager, and by the TWU from Mr Joel Haldane, a workplace delegate, and Mr Robert Rasmussen, a TWU official.

Statutory framework

[5] Section 437 of the FW Act sets out the requirements for a valid application for a protected action ballot order. Subsection 437(3) prescribes requirements as to the content of an application as follows:

Matters to be specified in application

(3) The application must specify:

(a) the group or groups of employees who are to be balloted; and

(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

[6] Section 443 contains requirements as to the power of the Commission to make a protected action ballot order once an application pursuant to s 437 has been made. Subsection 443(1) requires the Commission to make a protected action ballot order if an application has been made under section 437 and the Commission is satisfied that the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. Subsection 443(3) provides:

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

[7] If the taking of protected industrial action is authorised by employees in a ballot conducted pursuant to an order made under s 443, s 414(1) requires that written notice of any industrial action to be engaged in by employees must be given by the relevant bargaining representative to the employer. The provision of notice in accordance with the requirements prescribed by s 414 is one of a number of conditions that must be satisfied in order for the action to be protected: s 413(4). One of those requirements is contained in s 414(6), which provides:

Notice requirements--content

(6) A notice given under this section must specify the nature of the action and the day on which it will start.

The decision under appeal

[8] In her decision, the Deputy President, after having satisfied herself that the preconditions for the making of a protected action ballot order in s 443(1) were met, 3 then turned to the issue of whether question 12 should be included in the protected action ballot order.4 The Deputy President first outlined the case in this respect advanced by Prosegur and, in doing so, the Deputy President summarised the evidence given by Mr Lynch as follows:

“[12] Mr Lynch gave evidence for the Respondent in the proceedings. In relation to the ballot question, he said that given the highly regulated and safety sensitive nature of the work performed by employees who would be covered by any proposed agreement, it was necessary to be clear about what might constitute a partial work ban. Using firearms as an example, he said that if the proposed partial work ban was a ban on wearing a firearm when employees were performing their duties, the Respondent would have no choice but to direct the employees not to perform any work because of the safety issues that would arise. This would have consequential implications for employees in relation to their income.”

[9] The Deputy President then outlined the TWU’s case, and summarised the evidence given by Mr Haldane in the following way:

“[14] The TWU relied on evidence from Mr Haldane, the TWU delegate, to the effect that in his view the meaning of ‘partial work ban’ was ‘obvious’, in that it meant a ban on some work but not other work. Further, he said that representatives of the TWU, including himself, would explain the ballot questions to employees prior to them completing the ballot.”

[10] The Deputy President then stated the following conclusion:

“[15] Having considered the evidence and submissions made by the parties, I am not satisfied that the ballot question describes the proposed industrial action in such a way that employees are capable of responding to it, in that it is not expressed with sufficient clarity as to enable employees to make an informed choice as to whether to support particular industrial action.”

[11] The Deputy President referred to three authorities which she considered applicable: United Firefighters’ Union of Australia v Country Fire Authority, 5 John Holland Pty Ltd v AMWU6 and National Tertiary Education Industry Union v RMIT University.7 The Deputy President then said:

“[20] While a high level of specificity is not required, the ballot questions cannot be so unspecific as to be vague and meaningless. The level of specificity required is one which enables employees who will be voting on the questions to understand what work would not be undertaken and what work would remain to be done. It requires employees to be able to understand the implications for them while at work. The balance to be struck is that employees must be able to understand what it is they are being asked to support in terms of the proposed industrial action and enable them to make an informed choice in that regard.

[21] A partial work ban can encompass a myriad of possibilities. Given the myriad of possibilities, employees could not reasonably be expected to understand what work would or would not be undertaken.

[22] In terms of the TWU’s argument that the ballot question is commonly found in protected action ballot orders made by the Commission, I simply note that this is not the relevant test that I need to apply in the application before me.

[23] In relation to the TWU’s argument that the meaning of ‘partial work ban’ is well understood by industrial parties, that is likely to be the case, but it is not an industrial party that is being asked to complete the ballot – it is a group of employees. In any event, the question is not whether an employee understands the meaning of the phrase ‘partial work ban’, it is whether the employee understands what work will not be undertaken and what work will remain to be done.

[24] The TWU said it would explain the ballot questions to employees. If it is necessary to explain the ballot questions to employees, then in my view the questions lack sufficient clarity. It should be evident on reading the ballot questions what it is that employees are being asked to authorise.

[25] Finally, I accept the submissions of the Respondent that the phrase ‘nature of the action’ in ss.437(3) and 443(3) is the same in substance as s.414(6). As a matter of statutory construction, when words are used in one part of an Act they should be given the same meaning when used in another part unless there is reason to do otherwise.

[26] For these reasons, the ballot question will not be included in the order made.”

Appeal grounds and submissions

[12] The TWU’s notice of appeal stated the following grounds of appeal:

1. The Deputy President erred in determining that proposed Question 12 in the Appellant’s application for a protected action ballot would not be included in the protected action ballot order issued under s 443 of the FW Act.

2. The Deputy President erred in determining that s 443(3)(d) of the FW Act requires that questions posed to employees in protected action ballot orders specify what work will not be undertaken and what work will remain to be done and the implications for them while at work, when all s 443(3)(d) requires is that questions in a protected action ballot include the nature of the industrial action.

3. The Deputy President erred in determining, as a matter of construction, that the phrase in s 443(3)(d) that “A protected action ballot 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” had the same meaning as the phrase “must specify the nature of the action” in s 414(6) of the FW Act.

4. The Deputy President erred in failing to follow the reasoning of a Full Bench of Fair Work Australia in John Holland Pty Ltd v AMWU (2010) 194 IR 239 at [19]-[20].

5. The Deputy President erred in concluding that the phrase “partial work ban” was not likely to be understood by the employees to be balloted.

[13] The TWU submitted that its appeal raised an important question concerning the construction of s 443(3)(d) which was of general importance and justified the grant of permission to appeal. In relation to s 443(3)(d), it submitted that the word “nature” in s 443(3)(d) referred to the description of a thing or an action in general rather than specific terms, and stands in contrast to a word such as “particulars”, which implies a degree of specificity and precision. The obligation imposed on the Commission to include particular content in a protected action ballot order under s 443(3), it was submitted, is not framed as permitting or requiring the Commission to exercise any evaluative or subjective judgment about the content or providing that the Commission is to analyse or assess the questions contained in an application under s 437(3); rather, the Commission is obliged to include the matters specified in s 443(3) in its order.

[14] The TWU drew a number of distinctions between ss 443(3)(d) and s 414(6). In relation to the latter provision, it submitted that the use of the definite article in the expression “the action”, combined with the requirement to “specify” the action, implied a measure of particularity. This was different to the requirement in s 443(3)(d) to specify the nature of the “proposed industrial action”, which demonstrated that the provisions had distinct targets and subject matters. In addition, the TWU submitted, the provisions dealt with distinct aspects of the process for taking protected industrial action and had different purposes in that s 443(3)(d) is geared to gauge whether employees wish to engage in protected industrial action whereas s 414 is focused on notifying employers of “the action” to be taken to enable them to take steps to respond to it. Having regard to this context, the TWU submitted that the requirement that a protected action ballot order specify the nature of the proposed industrial action does not require that a question in a ballot order detail every future act or omission constituting industrial action which may be taken or contain particulars of what work may or may not be performed. If the questions lack clarity or are ambiguous, the result may be that the action ultimately organised or taken will not fall within the ambit of the questions and be authorised by them. Additionally, it was submitted, there is no scope or power reposed in the Commission to parse or otherwise reject questions posed in an application; so long as there is a valid application that includes questions of the kind detailed in s 437(3)(b), those questions should be included in the order.

[15] In relation to appeal ground 1, the TWU submitted that question 12 asked employees to authorise the banning of different aspects of their work at different times and for different durations, and thereby describes industrial action of a particular nature and meets the description under s 443(3)(d). The Deputy President erred in determining the contrary.

[16] In relation to appeal grounds 2-4, the TWU submitted that s 443(3)(d) does not permit or require the Commission to assess whether an employee will understand what work will not be undertaken and what work will remain to be done, and the Deputy President applied the wrong test in taking a contrary approach. The Deputy President also erred, it was submitted, in determining that the requirement in s 443(3)(d) had the same meaning as the phrase describing the content requirements of a notice under s 414(6). The Full Bench in the John Holland decision correctly recognised that so long as the questions posed in an application under s 437(3)(b) described the industrial action in a way that employees were capable of responding to them, an application would be valid, and it was submitted that the Deputy President erred in not following this approach. The TWU submitted that the test posed in Country Fire Authority supplanted the words of the statute, was discordant with the context and purpose of s 443(3)(d), and was therefore erroneous.

[17] In relation to appeal ground 5, the TWU submitted that the Deputy President was also in error in concluding that the phrase “partial work ban” in question 12 would not be understood by employees, and referred to the decision in AMWU v Steel Building Systems Australia Pty Ltd t/a Supaloc 8 as establishing that a question asking employees whether they authorised industrial action in the form of partial work bans would, objectively assessed, be readily understood by employees.

[18] The TWU submitted that whether a question in a protected action ballot order under s 443(3)(d) specifies the nature of the proposed industrial action is not a matter of discretionary or evaluative judgment. Accordingly, the “correctness standard” applied to the appeal, so that the Deputy President’s decision could not be treated as though it involved the exercise of a discretion. It submitted that the decision was in error, the appeal should be upheld, and that the Full Bench should either amend the order to include question 12 or issue a further order for a separate ballot in relation to question 12.

[19] In relation to the vote of employees to approve a proposed agreement by Prosegur on 10 March 2021, which it did not factually contest, the TWU submitted that this did not render its appeal inutile because:

• it did not concede that an agreement had been “made” within the meaning of s 182(1) of the FW Act or that, if an agreement had been made, it was capable of approval under s 186; and

• it contended that bargaining for a new agreement, and protected industrial action, may continue until the time that a new agreement takes effect upon approval by the Commission, notwithstanding that a vote to approve a new agreement has taken place.

[20] The TWU also submitted that whether a notice complies with the requirements of s 414(6) by adequately or sufficiently describing the nature of the action will be a matter of fact and degree.

[21] Prosegur submitted that permission to appeal should be refused because the appeal lacked utility as a result of the vote to approve the new agreement on 10 March 2021. It referred to the Full Bench decision in CEPU v Carter Holt Harvey Woodproducts Australia Pty Ltd 9 as authority for the proposition that once an agreement has been made, protected industrial action ceases to be available. It also submitted that the appeal also lacked utility because there was no practical way in which the ballot ordered by the Deputy President could now be altered by the addition of another question, since employees had been posted their ballot papers by the Australian Electoral Commission on 25 February 2021 and it was likely that a proportion of employees had already voted. Therefore, it was submitted, granting permission to appeal and upholding the appeal in the manner proposed by the TWU would require the current ballot to be abandoned and a new ballot to commence, thus causing confusion and delay.

[22] Prosegur also submitted that permission to appeal should be refused or, alternatively, the appeal dismissed, because the decision was made on the basis of factual findings specific to the circumstances of the case, including that the employees worked in the cash in transit industry, were required to hold security licences and carry firearms, were required to wear personal body armour, and performed highly regulated and safety sensitive work. The Deputy President preferred the evidence of Mr Lynch about these matters to that of the TWU witnesses. Prosegur submitted that the Deputy President’s observations about the interaction between ss 437(3), 443(3) and 414(6) in paragraph [25] of the decision were obiter dicta and not necessary to the conclusion which was reached, and the Deputy President did not apply the level of specificity required by the authorities in relation to s 414(6) to proposed question 12 or any of the questions set out in the order.

[23] Further, Prosegur submitted, the test applied by the Deputy President was no different to the test applied in other decisions such as John Holland, Country Fire Authority, RMIT University and AMWU v Steel Building Systems, and different findings were the result of different factual settings. The question of whether the proposed question 12 was sufficiently particular to meet the requirements of the FW Act is a question of fact and degree depending on the evidence and circumstances of each case. Accordingly, it was submitted, the Deputy President’s decision was the result of the exercise of a discretion, and no error had been demonstrated in the exercise of that discretion.

Consideration

[24] We do not consider that it would be in the public interest, or otherwise appropriate, to grant permission to appeal in this matter, for two reasons.

[25] First, it is unlikely that the appeal will have practical utility. It is not in dispute that the relevant group of employees voted to approve a proposed enterprise agreement on 10 March 2021. We are obviously not in a position, on the basis of the very limited information before us, to determine conclusively whether an agreement has been validly “made” within the meaning of s 182(1). However, we take into account that, notwithstanding that it did not concede the point, the TWU was unable to point to any matter which places in serious doubt whether an agreement has in fact been made. An application for approval of the agreement voted upon was lodged in the Commission on 17 March 2021. Neither the application nor the statutory declaration made by Mr Lynch lodged in support of the application disclose any obvious procedural defect that would enable it to be concluded that the agreement for which approval was sought was not validly made.

[26] The Full Bench decision in Carter Holt Harvey is authority for the proposition that protected industrial action cannot be taken once an enterprise agreement has “indisputably” been made. On the basis of that decision, save for the possibility that some as yet unidentified matter might call into question whether the new agreement was validly made under s 182(1), the appeal must necessarily be inutile because no protected industrial action can now be taken even if authorised in a protected action ballot.

[27] The TWU submitted that Carter Holt Harvey was a brief, ex tempore decision which was not fully reasoned and should not be followed, and that there remained a capacity to take protected industrial action until an agreement takes effect consequent upon approval, at which time the prohibition upon engagement in industrial action in s 417 applies. It referred to two decisions which, it contended, indicated that the question of whether protected industrial action might be taken after an agreement has been made but not yet approved remains open. The first was the Full Bench decision in AMWU v Broadspectrum (Aust) Pty Ltd, 10 in which the majority said:

“[17] The parties’ submissions in this appeal were premised on two propositions about which they did not disagree. The first was that once an agreement is “made” pursuant to s 182(1), the bargaining process that gave rise to that agreement comes to an end. That proposition is derived from a decision of a single member of the Commission in Australasian Meat Industry Employees’ Union v Coles Supermarkets Australia Pty Ltd ([2016] FWC 4870 at [38]-[42]). That specific proposition has not yet been endorsed judicially or at the Full Bench level, although we note that in the Full Bench decision in Re Uniline Australia Ltd ([2016] FWCFB 4969, 263 IR 255) the majority said that bargaining ended upon lodgement of an application for approval of an agreement (presumably one “made” in accordance with s 182 rather than merely a purported agreement). For the purpose of this appeal we shall assume, without deciding, that the proposition is correct.”

[28] Broadspectrum provides little if any assistance to the TWU’s position. The extract above concerned whether bargaining had ended following the making of an agreement, in the context of a consideration as to whether bargaining was occurring such as to permit the making of a scope order under s 238 of the FW Act, not with the somewhat different question of whether the capacity to take protected industrial action ended upon the making of an agreement. In any event, as is noted in the extract above, the Full Bench majority in Uniline 11 said that bargaining has ended once an application for approval of an agreement has been made - as it has here.

[29] The other decision relied upon was that of a single member (Gostencnik DP) in NUW v CSL Limited. 12 That decision concerned an application by a union pursuant to s 459 of the FW Act to extend the 30-day period during which protected industrial action authorised by a ballot must commence. The employer submitted that the application should not be granted on discretionary grounds, including that a vote had taken place approving an agreement which covered some of the employees who were authorised to take protected action. The Deputy President noted the Full Bench decision in Carter Holt Harvey, but said that the situation before him was distinguishable because the union contended that the notice of employee representational rights was defective and hence it could not be said that an agreement had “indisputably” been made.13 As earlier stated, nothing has been raised before us to suggest that there is a real question as to whether an agreement has been made in this case.

[30] We do not consider that we should, in this appeal, revisit Carter Holt Harvey. We have only received limited submissions about it and we are not persuaded that an arguable case has been advanced that the decision is incorrect.

[31] Secondly, we do not consider that this appeal properly gives rise to any question of general application concerning the construction of s 443(3)(d). The Full Bench in John Holland Pty Ltd v AMWU 14 said, in relation to s 437(3)(b):

“[19] Moving now to the construction of s.437 itself, 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 that 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 s.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.” (underlining added)

[32] We consider that the above passage in John Holland to be squarely applicable to s 443(3)(d), which is expressed in the same terms as s 437(3)(b). The Deputy President applied John Holland in her consideration under s 443(3)(d), and both parties in the appeal agreed that it stated the relevant principles.

[33] As John Holland makes clear, it will not normally be the proper role of the Commission to interfere in the drafting of questions to appear in a protected action ballot order. 15 If the questions describe the nature of proposed industrial action in a sufficiently clear way such that employees are capable of responding to them, then there is no basis for the Commission not to include them in a protected action ballot order that it is required to make under s 443(1). However, as the above extract from John Holland makes equally clear, there may nonetheless be some cases in which the Commission will not be satisfied that the condition in s 443(3)(d) is met. In those cases where the employer seeks to be heard in relation to an application for a protected action ballot order, the employer may present evidence or other material which demonstrates that, because of the nature of the work that employees perform or some other relevant circumstance, a considered response might not be able to be given by employees to a particular question.

[34] In this case, Prosegur adduced evidence which, we consider, demonstrated that question 12 was problematic. Prosegur operates a cash transportation business which is, for obvious reasons, a potential target for criminal attack, and in those circumstances the security of the cash being carried and the safety of employees are paramount considerations. There are a range of work procedures that are adopted for security and safety reasons, including requirements upon employees as to the mode of delivering and picking up cash, the wearing of body armour and the carrying of firearms. In that specific context, there was a proper basis for concluding that question 12 did not sufficiently describe the nature of the proposed industrial action by simply referring to “partial work bans”. That language is ambiguous as to whether it encompasses bans on the type of security and safety measures referred to, and we accept that an employee voting upon question 12 might not understand whether bans of that type were included.

[35] There is also a difficulty in respect of reading question 12 together with questions 10 and 11, which proposed specific types of bans. Question 12 leaves it unclear whether it is inclusive or exclusive of the types of bans referred to in questions 10 and 11. As was put by counsel for Prosegur by way of example during the hearing, if an employee votes “no” to question 11 and “yes” to question 12, will the employee have authorised bans on the refuelling of vehicles? This illustrates the difficulty associated with sensibly responding to question 12 in the circumstances of this case.

[36] Thus there is a proper basis for concluding that the Deputy President’s decision correctly applied the principles stated in John Holland to the particular facts before her. We do not consider that the decision stands for any wider proposition that a question in the form of question 12 may never be included in a protected action ballot order. Nor should it be read as having any application to the vast majority of protected action ballot order applications which are not opposed by the employer. In such cases, where there will be no material before the Commission to suggest that a particular question may not be capable of being responded to, we do not consider that there is any proper basis for the Commission not to make the order in the terms sought in the application where the conditions in s 443(1) are satisfied unless a question is, on its face, expressed in terms which do not permit employees to understand what they are being asked to authorise.

[37] We accept that paragraph [21] of the Deputy President’s decision might arguably be read as standing for a general proposition that, because a partial work ban can “encompass a myriad of possibilities”, employees could never reasonably be expected to understand what work would or would not be undertaken if industrial action of this nature were to be authorised. If the paragraph is to be read in this way, we would disagree with it. It is plainly an exaggeration and incorrect to say that partial work bans will in all contexts encompass a “myriad of possibilities”. If one is employed to perform a relatively simple task the scope for partial work bans will be limited and it will be obvious to the employee what would be encompassed. Even in employment with a wider range of duties, there is no basis for an automatic assumption that employees will not understand what they are authorising if they vote for partial work bans. However, we consider a better reading of paragraph [21] is that it is referable only to partial work bans by the relevant employees of Prosegur and does not stand for some more general proposition.

[38] Finally, we agree with the TWU’s submission concerning the Deputy President’s analysis in paragraph [25] of her decision. Section 443(3)(d) and s 414(6) use different language and are concerned with different subject matters. The former provision requires specification of the nature of the “proposed industrial action” in a question in a protected action ballot. It is thus concerned with the identification of categories of industrial action that might be taken in the future, with the statutory purpose being for employees to be able to understand the type of industrial action that they are being asked to authorise. By contrast, s 414(6) requires specification of the nature of “the action” - that is, identification of industrial action which employees are actually going to undertake. In that circumstance, the precise form of the industrial action to be taken will be known to the bargaining representative. The provision’s purpose is to allow the employer an opportunity to take defensive measures in response to the industrial action. In that context, a greater degree of particularity may be required than under s 443(3)(d).

[39] However, we accept Prosegur’s submission that the Deputy President’s reasoning in paragraph [25] was not essential (and perhaps not even relevant) to her conclusion concerning question 12. Accordingly, any error in paragraph [25] was not a material error requiring or justifying the grant of permission to appeal.

Conclusion

[40] Permission to appeal is refused.

al of the Fair Work Commission with the memeber's signature.

VICE PRESIDENT