Fair Work Australia has shut off an avenue to industrial action where even one employee sought to be covered under a new enterprise agreement is covered by an old agreement which is not about to expire. The decision in Power Projects International Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union  FWAFB 1327 is an important clarification both of the availability of protected action ballot orders, and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
The application for protected action ballot orders
PPI's employees perform work under maintenance contracts. They are covered by a certified agreement made in 2008 under the Workplace Relations Act 1996. PPI then won the contract to perform upgrade work. The unions argued that the upgrade work was not covered by the 2008 Agreement, and approached to PPI to negotiate an enterprise agreement to apply to the upgrade work. They then applied under section 437 of the Fair Work Act for protected action ballot orders, which were granted by Deputy President Harrison.
What happens if the employees are covered by a transitional instrument?
The key issue in this case was whether these protected action ballot orders could be made at all. This turned on item 17 of Schedule 13 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, which restricts when protected action ballot orders may be made where the employees are already covered by a collective agreement-based transitional instrument, such as a collective agreement, workplace determination, or a pre-reform certified agreement.
The Full Bench of the Fair Work Australia said they couldn't: if any of the employees presently covered by the 2008 Agreement were included within the group to be covered by the proposed agreement, the applications for ballot orders could proceed no further.
This decision is similar to the approach taken by Senior Deputy President Hamberger in Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd, Hamersley Iron Pty Ltd and Robe River Iron Mining Co Pty Ltd (2010) FWA 8210.
Implications for employers
This decision is an important clarification of the way that the industrial relations system transitions to the Fair Work Act.
It makes it clear that employers will not be subject to industrial action in relation to a proposed enterprise agreement if:
- even one employee that would be covered by the proposed new agreement is still covered by a transitional agreement; and
- that agreement has more than 30 days to run before its nominal expiry date.