Existing agreement rules out secret ballot for new one: FWA

Cases

Existing agreement rules out secret ballot for new one: FWA

Workers at the Eraring power station in New South Wales will not be allowed to have a secret ballot on strike action for a new agreement because they are already covered by a previous agreement.

WantToReadMore

Get unlimited access to all of our content.

Workers at the Eraring power station in New South Wales will not be allowed to have a secret ballot on strike action for a new agreement because they are already covered by a previous agreement.
 
 
A Full Bench of Fair Work Australia ruled on the case after an appeal by Power Projects International (Power) which was supported by the Australian Industry Group (Ai Group). The ACTU also intervened in the case to support the unions, the AMWU and the AWU.
 
The matter had originally been before Commissioner Greg Harrison who had approved the secret ballot.
 
The problem arose after Power, which was already doing maintenance work at Eraring, won contracts for the upgrading of turbo-generators and boilers at the power station.
 
Construction, not maintenance
 
The unions argued that the new work was construction and not maintenance, and therefore should be covered by a new agreement.
 
The company argued that the work so overlapped that it was impossible to differentiate maintenance and construction and the existing agreement should continue to apply.
 
Phillip McWilliam, Power general manager, told the Full Bench:
‘I would say that it would be extremely difficult to separate a project for the maintenance of the boilers with a project to increasing the capacity of the boilers when the work crews are working adjacent to each other and sometimes move between those areas in a single day.’
Daniel Wallace, AMWU industrial officer, asked how a practical distinction could be made as to whether the worker is involved in upgrade or non-upgrade project work at the Eraring site, at any point of time, conceded:
‘Yes. I could acknowledge the difficulty with that and one of our concerns is a maintenance award employee [who’s] doing maintenance work who’s received 15% casual loading when someone [who’s] performing the upgrade work would receive — I mean, 50% nightshift loading versus 15. What’s applied here is that the company has chosen to have one agreement to cover both types of work even in my view that it’s not meant to cover the construction upgrade project, but yet they’ve used the lowest common denominator of those agreements to apply.’
‘Practical matter’
 
Cmr Harrison had ruled in his original decision that the difficulty of separating the two tasks among the workforce was ‘a practical matter’ that needed to be addressed in negotiations.
 
However, the Full Bench ruled that Cmr Harrison had been in error in granting the protected action secret ballot because Item 17 of Sch 13 of the Transitional Act stated that such an application could not be made where the workers were already covered by a collective agreement.
 
‘The two applications should have been dismissed,’ the Full Bench said.
 
In welcoming the decision, Ai Group said it ‘is fundamental to protecting the validity of existing enterprise agreements’.
 
‘It protects employers against industrial action if even one employee sought to be covered under a new enterprise agreement is covered by an old agreement which is not about to expire,’ said chief executive Heather Ridout.
 
Frustration
 
However, Ridout expressed frustration that the Full Bench had not considered other grounds in the appeal, one of which related to unions having to apply for a majority support determination before being able to ask for a secret ballot.
 
This had been rejected in JJ Richards & Sons v TWU by majority decision.
 
Ridout said Ai Group ‘strongly disagrees’ with the majority decision and instead prefers the minority ruling that where ‘an employer refuses to bargain, a union must obtain a majority support determination to enable bargaining to commence and must thereafter “genuinely try to reach an agreement” with the employer’.
 
She said this aspect would be the subject of further FWA appeals.
 
‘There is an important issue of principle involved,’ Ridout said.
 
‘The right which existed to take industrial action regardless of the level of support among employees for a collective agreement was logical and fair under the voluntary bargaining system in the old legislation.’
 
‘Such a right has no place under the Fair Work Act where bargaining is compulsory if the majority of employees support collective bargaining and employers have no obligation to bargain if the majority of employees do not want a collective agreement.’
 
Not logical or fair
 
‘In a workplace where only a minority of employees are union members, it is not logical or fair for the union members to be granted the right to take industrial action to coerce the employer to bargain if the majority of employees have not expressed support for the negotiation of a collective agreement.’
 
 
Post details