Secret Ballots for Protected Industrial
Action
Presentation
to
ACTU Industrial Officers Conference
Sydney July 2006
Electrical Trades Union
D2006/01458
Lindsay Benfell
1
The Machinery of a ballot order
1.
Preconditions for application
2.
“Genuinely trying to reach agreement” and “pattern bargaining”
3.
The ballot application
4.
List of members and the roll of voters
5.
Conduct of the ballot
6.
The question to be put
7.
The 30 day “use it or lose it” rule
2
PRECONDITIONS
Protected Industrial Action not protected unless;
•
Nominal Expiry date of old agreement passed (s.440)
and
•
Bargaining period has been initiated (s.435)
and
•
Action has been authorized by protected action ballot (s.445)
or
•
Action in response to employer action (s.445)
3
PRECONDITIONS (… continued)
AIRC must grant ballot order if:
•
Paperwork is complete
and
•
the AIRC is satisfied that:
*
during bargaining period union genuinely tried to reach agreement; and
*
It is genuinely trying to reach agreement; and
*
Union is not pattern bargaining (s461)
*
Granting application is not inconsistent with object of Div. 4 – Part 9 WRA
*
Union has not contravened Div. 4 or an order/direction under Div. 4
4
GENUINELY TRYING TO REACH AGREEMENT
•
•
bargaining period can be suspended/terminated if before, or during, BP
negotiating party did not, or is not, genuinely trying to reach agreement
(s.430(2)) (old s.170MP)
Test is: Preparedness to consider seriously the offers and proposals put by
other negotiating party
5
GENUINELY TRYING TO REACH AGREEMENT
… continued
Australasian Meat Industry Employees Union V G & K O’Connor (91IR356)
Marshall J.
•
•
the employer took hard line and refused to moderate demands,
the test was a preparedness to consider seriously the offers and proposals of the
other negotiating party
Re Austrlasian Rail, Tram and Bus Industry Union (Print L5622)
SDP Hancock
•
comes to the same conclusion. Marshall J. adopts SDP Hancock reasoning
AiG v AMWU & Ors (Print T1982)
Munro J
•
a common set of demands for conditions of employment, or for timing of
negotiating rounds and outcomes is not sufficient to establish that a negotiating
party is not genuinely trying to reach agreement (par.46)
6
GENUINELY TRYING TO REACH AGREEMENT
… continued
AMWU & or v Cadbury Schweppes Australia Pty Ltd (Print PR973290) (July 2006)
Acton SDP
•
•
•
•
adopted the Marshall test
making agreement on a common law deed with prohibited content conditional on
reaching agreement for a proposed collective agreement is not genuinely trying to
reach agreement
application not inconsistent with Object of Div.4 of part 9
ballot refused
7
GENUINELY TRYING TO REACH AGREEMENT
Organiser to give evidence that at meetings of members he/she has:
•
•
•
•
•
•
Confirmed the union representatives on the negotiating committee?
Explained the bargaining process and secret ballot to members?
Distribute ETU Notice for Members on the Bargaining Process
Ensured members endorsed the commencement of the bargaining process?
Ensured members discussed the pro forma list of claims?
Amended the pro forma list to include issues raised by members?
Ensured members authorized the amended list of claims
8
GENUINELY TRYING TO REACH AGREEMENT
The Organiser has:
•
•
•
•
•
•
Confirmed amended log of claims does not include prohibited content
SENT THE FIRST LETTER TO THE EMPLOYER: “Initiation of
Bargaining Period” and employer to identify issues
RECEIVED A RESPONSE FROM THE EMPLOYER TO YOUR LETTER
SENT THE SECOND LETTER TO THE EMPLOYER
ARRANGED AND CONDUCTED AT LEAST 2 MEETINGS WITH
EMPLOYER
STARTED TO PREPARE A LIST OF UNION MEMBERS TO VOTE
9
10
11
12
Organiser evidence (continued)
Obtained member approval for:
•
•
the secret ballot to take industrial action
the type of secret ballot to be conducted
•
Postal
q
Attendance
q
Other Method
q
Informed members of their entitlement to be heard at AIRC hearing and placed
“Notice to ETU Members – Secret Ballots” on noticeboard
13
WHAT IS PATTERN BARGAINING?
A course of conduct by a person is pattern bargaining if: (s.421)
a) the person is a negotiating party to 2 or more proposed collective agreement;
and
b) the course of conduct involves seeking common wages or conditions of
employment for 2 or more of those proposed collective agreements; and
c) the course of conduct extends beyond a single business.
Not a pattern bargaining if:
•
•
seeking terms or conditions determined as national standards.
union is genuinely trying to reach an agreement for a single business or part of a
single business.
14
WHAT IS PATTERN BARGAINING?
….. continued
•
factors relevant to working out whether the union is genuinely trying to reach an
agreement include the following:
a) demonstrating a preparedness to negotiate an agreement which takes into
account the individual circumstances of the business or part;
b) demonstrating a preparedness to negotiate a workplace agreement with
nominal expiry date which takes into account the individual circumstances of
the business or part:
c) negotiating in a manner consistent with wages and conditions of employment
being determined as far as possible by agreement between the employer and
it’s the course of conduct extends beyond a single business or part
15
WHAT IS PATTERN BARGAINING?
….. continued
d) agreeing to meet face-to-face at reasonable times proposed by another
negotiating party;
e) considering and responding to proposals made by another negotiating party
within a reasonable time;
f) not capriciously adding or withdrawing items for bargaining.
•
Whenever a person seeks to rely on this exemption, the person has the burden of
proof.
16
PATTERN BARGANING
•
•
Use evidence of letters and evidence of negotiating official to show not
pattern bargaining.
Flexibility in demands made
17
APPLICATION FOR A BALLOT ORDER
Application MUST include the following information (s.452, 453)
•
•
•
•
The question/s to be put to the relevant employee/s; including the
nature of the proposed industrial action (s.452(1)(a))
The types of employees to be balloted (s.452 (1)(b))
Your preferred ballot agent – AEC or private agent
Whether you want an attendance ballot, a postal ballot or some
other method of voting
18
ATTACH THE FOLLOWING DOCUMENTS TO THE APPLICATION:
•
•
•
•
Copy of notice of initiation of the bargaining period (s.453 (1)(a))
Copy of the particulars that accompany the bargaining period notice
(s.453(1)(b))
A WRITTEN NOTICE that the application has been properly authorised by
the committee of management (s.453(2))
A DECLARATION that industrial action is not in pursuit of claims for
prohibited content (s.453(4))
19
PREPARE A SWORN STATEMENT from the negotiating official
setting out evidence that:
•
•
•
During the bargaining period, you genuinely tried to reach agreement
with the employer;
You are still genuinely trying to reach agreement with the employer;
you are not engaged in pattern bargaining
20
•
•
PREPARE OUTLINE OF SUBMISSIONS
PREPARE THE DRAFT ORDER
21
LIST OF MEMBERS AND ROLL OF VOTERS
•
•
•
•
•
•
Union records may not accurately reflect membership in each workplace
Compile list of members on site to cross reference with union records
Begin compiling list ASAP
List to be provided to ballot agent in excel spreadsheet format
Encourage members to check with ballot agent that they are on roll (s.468)
No requirement for member to be financial to be on roll
22
CONDUCT OF BALLOT
•
•
•
•
Ballot agent responsible for conduct of ballot.
AEC may be sensitive about Freedom of Association issues.
Sections 473 - 479 and s.463 sets out conduct of ballot
Ballot can only be held during meal time, other breaks, or outside hours of
employment (s.463)
23
THE QUESTION TO BE PUT
(s.452 (1)(a)
“Nature of the proposed industrial action”
•
•
phrasing of question crucial
- only action authorised by ballot is protected (s.445)
should be flexible to envisage wide range of action
24
THE QUESTION TO BE PUT
... Continued
AMWU v Amcor Packaging (Australasia) Pty Ltd (Print PR973236) Gay C.
•
•
•
•
•
degree of specificity turns on facts of each case
nature of proposed industrial action “will frequently comprehend a range, and
possibly a wide range, of the elements of contemporary industrial armoury” (12)
distinction between s.441(6) – 3 days notice and s.452 question.
requirement for specificity to permit an employer to take defensive action is not
central to s.452. (14)
no requirement for ballot question be set out in highly prescriptive or detailed form.
(20)
25
THE QUESTION TO BE PUT
... Continued
AMWU ballot question.
The questions to be put at Kyabram particularised protected industrial action
which involved “…strikes, bans (including overtime bans and call back bans)
and rolling stoppages of work by maintenance employees, metal tradespersons,
production employees and warehouse employees on the Kyabram site”
(Automotive, Food, Metals, Engineering, Printing and Kindred
Industries Union v Amcor Packaging (Australasia) Pty Ltd
PR973236))
26
THE QUESTION TO BE PUT
... Continued
CFMEU (United Collieres) ballot questions.
Question 1: Do you for the purpose of advancing claims in the negotiation of a union
collective agreement between the CFMEU and United Collieries Pty Ltd authorise
industrial action in the form of twenty four (24) hour
stoppages of work?
Question 2: Do you for the purpose of advancing claims in the negotiation of a union
collective agreement between the CFMEU and United Collieries Pty Ltd authorise
industrial action in the form of bans on the working of non- rostered
overtime?
Question 3: Do you for the purpose of advancing claims in the negotiation of a union
collective agreement between the CFMEU and United Collieries Pty Ltd authorise
industrial action in the form of a seven (7) day stoppage of work?
27
THE QUESTION TO BE PUT
... Continued
CFMEU (United Collieres) ballot questions.
Question 4: Do you for the purpose of advancing claims in the negotiation of a union
collective agreement between the CFMEU and United Collieries Pty Ltd authorise
industrial action in the form of two (2) hour duration stop work meetings?
Question 5: Do you for the purpose of advancing claims in the negotiation of a union
collective agreement between the CFMEU and United Collieries Pty Ltd authorise
industrial action in the form of stoppages of work of a shift length in
duration?
28
THE 30 DAY “use it or lose it” rule
•
(s.478)
s.478(1)(d) – action must commence within 30 days from the declaration of results
of ballot.
United Colleries Pty Ltd v CFMEU [2006] FCA 904 (14 July 2006)
Gyles J.
•
•
•
•
if particular action is started within 30 days – then can continue for whole
bargaining period (21)
rejected union position that if some action started within 30 days then all options
approved by ballot are available after 30 days. (15)
the CFMEU action started within the 30 days (options 1, 2 & 5) can continue during
bargaining period. (28)
the actions were expressed in plural without schedule of dates or times. (26)
29