[2007] AIRC 139 [2007] AIRC 139 PR976252 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.451(1) - Application for order for protected action ballot to be held Media, Entertainment and Arts Alliance-Western Australian Branch and West Australian Ballet (BP2007/15) Entertainment and broadcasting industry SENIOR DEPUTY PRESIDENT LACY PERTH, 22 FEBRUARY 2007 Proposed industrial action by employees of the West Australian Ballet – genuinely tried to reach agreement – number of negotiating meetings – offers and counter offers - genuinely trying to reach agreement – industrial action for collateral purposes – third party funding – discretion to refuse application – application granted. DECISION [1] Media, Entertainment and Arts Alliance (MEAA) applied for an order for a protected action ballot (ballot order) on 8 February 2007. It was proposed that the ballot order bind MEAA, Australian Electoral Commission and West Australian Ballet (WAB). The employees that are to be balloted are those dancers (including regular casuals) who, at the time of the order, are employed by WAB and who are members of the MEAA at the time of the order. [2] WAB opposed the making of the ballot order. It contended that, contrary to the requirements of s.461(1)(a) and s.461(1)(b) of the Workplace Relations Act 1996 (WR Act), MEAA did not genuinely try to reach agreement during the bargaining period that it initiated on 19 January 2007, and that it is not trying to reach agreement. The substance of WAB’s argument is that: MEAA has not given bargaining a fair chance; during the bargaining period MEAA’s wages claim, as initially advanced and as modified, has been extraordinary; MEAA’s negotiation conduct is not directed to reaching agreement with the WAB; and the planned industrial action is not directed at WAB, but rather at its primary funding body, the Government. [3] WAB further contended that an order ought not to be made as a matter of discretion, because any of the planned industrial action would, if taken, be destructive of the viability of WAB. [4] The application was first listed for directions on 9 February 2007. There was no appearance for or on behalf of WAB and the application was adjourned for hearing by video on 12 February 2007. When the matter came on for hearing on 12 February, WAB announced its attention to oppose the grant of a ballot order, indicating that it would call two witnesses in aid of its case. MEAA said it too had two witnesses. In the circumstances it was considered appropriate that the matter be heard in Perth and it was adjourned to 21 February 2007. The parties indicated that, in the interim, discussions would be held in an endeavour to resolve the issues between them. [5] At the conclusion of proceedings on 21 February 2007 I reserved my decision and adjourned the matter to 22 February. On 22 February 2007 I announced that I would make an order for a protected action ballot and gave brief reasons for so doing. I undertook to provide more detailed reasons in due course. These are those more detailed reasons. Legislative context [6] Division 4 of Part 9 of the WR Act is concerned with secret ballots on proposed protected action . Section 449 sets out the objects of the Division and that provision bears repeating here. 449(1) The object of this Division is to establish a transparent process which allows employees directly concerned to choose, by means of a fair and democratic secret ballot, whether to authorise industrial action supporting or advancing claims by organisations of employees, or by employees. [7] Section 459 of the WR Act empowers the Commission to make orders or give directions in connection with, inter alios , an application for a ballot order. Subsection (1) of s.461 sets out conditions upon which an order is to be made or refused. Relevantly the subsection provides as follows: (1) The Commission must grant an application for a ballot order if, and must not grant the application unless, it is satisfied that: (a) during the bargaining period, the applicant genuinely tried to reach agreement with the employer of the relevant employees; and (b) the applicant is genuinely trying to reach agreement with the employer; and … [8] Subsection (2) of s.461 makes it clear that notwithstanding that the Commission is satisfied the prerequisites have been made out for making an order the Commission may, at its discretion, refuse to make the order if it is satisfied that granting the application would be inconsistent with the relevant objects of the legislation or because of any contravention of relevant provisions of the Act or the Commission’s directions. Has MEAA genuinely tried to reach agreement with WAB? [9] The issue is whether I am satisfied that MEAA genuinely tried to reach agreement during the bargaining period. WAB advanced three principal reasons for which it contends I cannot be satisfied that MEAA genuinely tried to reach agreement with West Australian Ballet. First, WAB argued that there has been only a limited number of meetings between the parties and that MEAA has not given the process a fair go. Secondly, it contended that MEAA is not concerned about reaching agreement with it for wage increases and that it is concerned with securing from the Government sufficient funding for WAB to meet its wages obligations. Thirdly, WAB says that the MEAA claim is fanciful or, in its words, extraordinary, and cannot be a genuine claim. [10] WAB argued that MEAA has not given bargaining a fair chance. It contended that MEAA and WAB met on a paltry eight occasions between November 2006 and February 2007 and two of those meetings were devoted to setting an agenda and two others were not formal meetings. WAB further contended that in the meetings MEAA was not genuinely bargaining to reach agreement, but rather trying to get WAB to make submissions to the government for more funding. So much, WAB argued, is evident from the letter to John Langoulant from Michael Sinclair-Jones dated 23 January 2007. 1 [11] I accept the evidence of MEAA to the effect that it has met in negotiations with WAB on nine occasions since November 2006. True it is that some one or two of those meetings were devoted to setting an agenda. Two meetings were conducted over a cup of coffee during which there were discussions about the parties’ offers and counter offers. In the other meetings there have been serious negotiations with exchanges of offers and counter offers. In the relevant period WAB has made an offer to increase the dancers’ wages by an average 5% in the first year of the agreement and by 4.5% in the subsequent three years. MEAA has reported the WAB offers to the dancers and they have rejected them. Subsequently, WAB informed MEAA that no further offers would be forthcoming. Meanwhile, MEAA offered to settle its wages claim on the basis that WAB increase the dancers’ wages by 11% per year for three years on top of the WAB offer. More recently, MEAA has modified its claim by offering to accept an increase totalling 20.5% over a period of 18 months with a written commitment from WAB to pursue funding for a future two-year agreement providing for further annual pay increases of 10%. [12] While I accept that the MEAA claim is extraordinary, that is not of itself sufficient to say that MEAA has not genuinely tried to reach agreement with WAB. MEAA has provided a rational explanation for its claim based on comparative wage justice and wage relativities. It points to the significant economic growth in that part of the economy that is Western Australia, about which there was no dispute. Furthermore, the fact that MEAA has modified its claim in the course of negotiations suggests that it is prepared to change its position. I reject the proposition that the claim, extraordinary though it may be, evinces some basis for saying that MEAA has not genuinely tried to reach agreement. [13] It is evident that MEAA is making overtures to Government to increase the funding for WAB. Clearly MEAA has sought persuade WAB to join with it in making a concerted joint approach to Government for funding. I do not accept that its activities in those regards are linked to its claim against WAB so as to make any agreement it reaches with WAB conditional upon securing the Government funding. Moreover, there is some uncontested evidence suggesting that WAB encouraged MEA in that enterprise. I am satisfied that MEAA genuinely tried to reach agreement with WAB. Is MEAA genuinely trying to reach agreement with WAB? [14] WAB argued that MEAA’s proposed industrial action is not about genuinely trying to reach agreement with it, but about embarrassing the Government so as to procure additional funding for WAB. It is said in effect that a collateral purpose of MEAA’s action is to attract the attention of Government to the plight of the ballet dancers and to secure financial assistance for WAB to fund the MEAA wages claim. [15] If the WAB collateral purpose claim was made out the industrial action, insofar as it had a collateral purpose of harming Government, would almost certainly be unlawful. It is not entirely clear however, how the ballet dancers’ industrial action, if it be approved and taken, will have any impact on Government. There is no evidence of the way in which the industrial action would impact on Government apart from the submission that it would cause the Government embarrassment. Even if it be assumed that the dancers’ industrial action could be politically damaging for Government there is no evidence that it will have any actual impact on the fortunes of Government. I am not satisfied that the proposed industrial action has a purpose other than imposing economic pressure on WAB in order to secure an agreement with it. In my view, MEAA’s proposed industrial action is directed to reaching an agreement with WAB. I am satisfied that MEAA is trying to reach agreement with WAB. Discretionary grounds for refusing an order [16] WAB argued in the alternative that, if I was satisfied as to the genuineness of MEAA in trying to reach an agreement, I ought nonetheless refuse to make an order because it would be contrary to the relevant objects of the Act. In this regard it is contended that the proposed industrial action, if taken, would be destructive of WAB, as it would destroy its economic viability. [17] I am not satisfied that the issue raised by WAB as a basis for refusing to make the order is a matter relevantly falling with s.461(2) of the WR Act. The argument advanced by WAB about its viability may be ultimately a proper basis upon which to have the bargaining period suspended or terminated. In any event there is no cogent evidence presently before me to substantiate the claim. [18] I am satisfied that the application should be granted and an order made substantially in the terms proposed by MEAA. An order was issued on 22 February 2007. Appearances: D Ellis for Media, Entertainment and Arts Alliance. D Hamilton for West Australian Ballet. Hearing details: 2007. Perth. February, 21. Printed by authority of the Commonwealth Government Printer Price code C 1 Exhibit WAB-1.