The first six months under the Fair Work Act 2009 (Cth) (FW Act) led to a flurry of cases concerning the right of unions as bargaining representatives to apply for protected action ballots. Issues continue to be raised as to whether the applicants are genuinely trying to reach agreement. This led to familiar arguments that where a union and the employees are seeking the inclusion of clauses that do not pertain to the employment relationship they are not genuinely bargaining.
Other arguments arose that where a union is not bargaining in good faith, then it cannot satisfy Fair Work Australia (FWA) that it is genuinely trying to reach agreement. And in Ford Motor Company v CEPU, AMWU and APESMA  FWAFB 1240 it was critical to determine whether industrial action could be pursued when the scope of an agreement was not agreed between the employer and bargaining representatives.
LESSONS FROM RECENT CASES
Must questions in a ballot be detailed?
Questions in an employee ballot that propose approval for an infinite period of industrial action or an unlimited number of proposed forms of action are unlikely to be so ambiguous so as to invalidate an application. FWA Vice President Watson in AMWU v Coates Hire Operations  FWA 262 permitted questions where not all the details of the action were outlined. Importantly, however, his Honour also observed that if action is subsequently proposed it would need to be notified to the employer in sufficiently clear terms.
This view was supported by the Full Bench of FWA in Australian Postal Corporation v CEPU FWAFB 344. The Full Bench rejected an argument that questions that contemplate an indefinite or unlimited number of actions are too wide and vague. Again the Full Bench noted that there is a difference between the nature of the questions on a ballot and the notice of industrial action that must be given before employee claim action can be taken.
Pursuing non permitted matters
There have been a number of decisions on the issue of a union as bargaining representative pursuing matters during the bargaining process not pertaining to the employment relationship. Contractor clauses in particular have been considered. The Full Bench in the Australian Postal Corporation case has clarified the position. A number of points can be taken from the decision:
- When determining the period for FWA to consider there has been genuine bargaining, you do not disregard periods during which it may be said a union sought non permitted matters.
- Whether a union is pursuing non permitted matters does not rely on a final determination of the character of their claims. Importantly the FW Act allows employee claim action in support of claims reasonably believed to be about permitted matters. Therefore, a genuinely held belief that a clause pertains to the employment relationship that is also reasonably held will suffice. When it comes to where the line should be drawn in contractor clauses this may be more readily established.
- The pursuit, and even inclusion, of a non permitted matter is permissible under the FW Act. The scheme operates so that only permitted matters have effect, but does not necessarily prevent approval.
A dispute over scope may affect the right to protected action ballot orders
In the Ford case the Full Bench had to unscramble the following circumstances. Ford's employees were covered by three agreements. Two agreements had nominal expiry dates in July 2009 and August 2009 respectively. The third agreement's nominal expiry date (NED) was in December 2010. In May 2009, the company and the unions began bargaining for a new agreement to replace the three current agreements. Then on 1 July 2009, Ford issued notices of employee representational rights to each group of employees covered by the three agreements.
The issue arose when the unions made an application for a protected action ballot. Ford advised the unions that as one agreement had not passed the NED, no such application could be made. The unions' response was to seek to exclude the employees under the third agreement from the negotiations. Negotiations continued but Ford did not accept the change to the proposed scope of the agreement. It continued to argue that all employees should be covered.
At the application for a protected action ballot order, Ford argued that the unions could not satisfy FWA that the unions were genuinely trying to reach agreement. Ford argued that as bargaining had not taken place in accordance with the scope established by the notice of representational rights, no genuine bargaining had occurred. The majority of the Full Bench observed that it is inherent to the bargaining process that the employer is bargaining for an agreement that will cover it and an identified group of its employees. It follows that employee claim action can only be taken when there have been genuine attempts to reach a bargain in respect to that agreement. Consequently, the unions were not able to establish that they had been genuinely trying to reach an agreement by seeking to bargain only in respect of the employees of two agreements rather than one agreement for all employees.
Proper notice is still important
The FW Act continues the requirement that notice of any intended employee claim action must be given three working days before it commences. That notice must specify the nature of the action. This is different from the requirements when seeking approval of a protected action ballot. In Telstra Corporation Limited v CEPU  FWAFB 1698 the Full Bench considered whether the following notice sufficed. It stated in part:
The company argued the notice, in the context of its business, did not specify the nature of the industrial action that the union would take.
In considering this argument the Full Bench reflected on the purpose of any notice. It was to give the employer the opportunity to respond to the action by making relevant preparations – with suppliers, customers and contractors etc. Whether a notice is adequate may depend on the nature of the employer's operations, including its size, the number of locations, the time the action is to occur and the number of employees potentially taking the action.
The Full Bench rejected an argument that the use of the phrase 'indefinite stoppage' could never comply with the FW Act. It would depend on the circumstances. In this case however the notice did not specify the nature of the action. The expression was also used in the plural ('indefinite stoppages'), indicating more than one stoppage. Secondly it was used with the words 'an unlimited number'. Read as a whole, the Full Bench found that the phrase had potential for variation in the number, length and location of the stoppages and therefore was very wide.
For these reasons the notice did not satisfy the requirements under the FW Act.
Where employers receive a notice of proposed employee action a careful review of the terms of that notice is prudent. If the notice does not adequately specify the nature of the intended action an employer can seek orders that the action not commence or that it cease.
More information on protected action ballots is available from the Workplace Guide to Industrial Action. If you would like to receive a copy of this guide please contact Rebecca Veli at firstname.lastname@example.org
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