1. 1 Electrical Trades Union Secret Ballots for Protected Industrial Action Presentation to ACTU Industrial Officers Conference Sydney July 2006 Lindsay Benfell D2006/01458

2. 2 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

3. 3 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)

4. 4 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

5. 5 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

6. 6 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)

7. 7 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

8. 8 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

9. 9 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

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13. 13 Organiser evidence (continued) Obtained member approval for: the secret ballot to take industrial action the type of secret ballot to be conducted Postal  Attendance  Other Method  Informed members of their entitlement to be heard at AIRC hearing and placed “Notice to ETU Members – Secret Ballots” on noticeboard

14. 14 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.

15. 15 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

16. 16 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.

17. 17 PATTERN BARGANING Use evidence of letters and evidence of negotiating official to show not pattern bargaining. Flexibility in demands made

18. 18 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

19. 19 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))

20. 20 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

21. 21 PREPARE OUTLINE OF SUBMISSIONS PREPARE THE DRAFT ORDER

22. 22 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

23. 23 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)

24. 24 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

25. 25 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)

26. 26 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))

27. 27 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?

28. 28 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?

29. 29 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)