Application by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
[2021] FWC 5952
| [2021] FWC 5952 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Application by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(B2021/753)
| DEPUTY PRESIDENT BULL | SYDNEY, 20 SEPTEMBER 2021 |
s.437 Proposed protected action ballot of employees of Sydney Trains.
The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has filed an application pursuant to s.437 of the Fair Work Act 2009 (the Act) for a Protected Action Ballot Order (PABO) in relation to employees employed by Sydney Trains:
i.who are members of the CEPU;
who would be subject to the proposed enterprise agreement (who are currently covered by the Sydney Trains Enterprise Agreement 2018); and
for whom the CEPU is the bargaining representative.
There are a number of issues for the Commission to determine when considering an application for a protected ballot order that are prescribed by s.443 of the Act:
“443 When the FWC must make a protected action ballot order
(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:
(a) an application has been made under section 437; and
(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).
(3) A protected action ballot order must specify the following:
(a) the name of each applicant for the order;
(b) the group or groups of employees who are to be balloted;
(c) the date by which voting in the protected action ballot closes;
(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.”
Section 437(1) of the Act sets out who may apply for a PABO:
“437 Application for a protected action ballot order
Who may apply for a protected action ballot order
437(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.”
Clause 5 Coverage of Agreement states that the CEPU and Sydney Trains are covered by the Agreement, and the CEPU as a bargaining representative for the Agreement has also given notice under s.183 of the Act that it wished to be covered by the Agreement.[1]
The Commission is therefore satisfied that the application made by the CEPU has been made in accordance with s.437(1).
Genuinely trying to reach agreement
Section 443(1)(b) requires the Commission to be satisfied that the CEPU has been, and is, genuinely trying to reach an agreement with Sydney Trains.
A Form F34B Declaration in support of an application for a protected action ballot order completed by Ben Lister – CEPU Organiser, accompanied the application. The Declaration set out the steps taken by the CEPU said to demonstrate its attempts to genuinely try and reach an agreement with Sydney Trains.
On the uncontested evidence of Mr Lister, that the CEPU has been, and is, genuinely trying to reach an agreement with employees of Sydney Trains, the Commission is satisfied that the CEPU has been, and is, genuinely trying to reach an agreement with employees of the Sydney Trains who are to be balloted
Extended Period of Notice
Section 414(2) of the Act requires that written notice of any action to be taken must be provided at least 3 working days prior to the action occurring.
"414 Notice requirements for industrial action
Notice requirements—employee claim action
(1) ...
(2) The period of notice must be at least:
(a) 3 working days; or
(b) if a protected action ballot order for the employee claim action specifies a longer period of notice for the purposes of this paragraph—that period of notice.”
(my underline)
Where the Commission is satisfied that there are exceptional circumstances justifying the minimum period of notice being longer than three working days, the protected action ballot order may specify a longer period of up to seven working days as described at s.443(5):
“443(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.”
On 30 August 2021, the Commission wrote to Sydney Trains, seeking a response as to whether it consents or objects to the application.
On 31 August 2021, Sydney Trains advised the Commission that it had put a without prejudice offer to the CEPU to address concerns it had with the notice periods for a variety of the actions contained in the draft orders. Sydney Trains further advised the Commission that the CEPU was considering the offer, and that the parties would advise the Commission of the outcome as a matter of urgency.
The Commission sought further updates from the parties on 3 and 8 August 2021, after which the matter was listed for a telephone conference on 17 September 2021.
On 17 September 2021, but prior to the telephone conference, the CEPU advised the Commission that an agreement had been reached on some amendments to the proposed orders in the matter, and the CEPU filed an amended F34 application with amended draft orders. Sydney Trains confirmed in a subsequent email that an agreement had been reached, and on this basis, and on reviewing the draft order, Sydney Trains no longer had any objection to the application and agreed to the issuance of the amended order.
Following these emails, the telephone conference proceeded to confirm some outstanding issues with the application, namely the expression of ‘working days’, and the reasons as to why the Commission may be satisfied that there existed exceptional circumstances justifying the period of written notice for some of the types of proposed industrial action being longer than 3 working days pursuant to s.443(5) of the Act. During the conference it was also agreed by the parties that the stipulated time periods in the PABO should reflect Sydney time.
After the telephone conference, Sydney Trains wrote to the Commission and provided its reasons why there exist exceptional circumstances justifying the period of written notice being longer than 3 working days for some of the types of proposed industrial action. In summary, Sydney Trains submitted that for the reasons provided in matter [2021] FWC 4391, where relevant, that there are exceptional circumstances.
It was submitted that the actions that have all been identified as requiring 5 or 7 working days’ notice in the CEPU’s draft order comprise of issues which would have an impact on Sydney Trains’ ability to provide essential public transport service.
Based on the agreement of the CEPU and the reasons provided by Sydney Trains, the Commission is satisfied pursuant to s.443(5) that there are exceptional circumstances justifying the period of written notice being longer than 3 working days, and that the period of notice should be extended in the terms as reflected in the amended order.
Ballot Agent
The Commission notes that the named Ballot Agent has previously been nominated as the ballot agent in Commission ballot orders and there being no objection from Sydney Trains is satisfied as per s.444(1) of the Act, the Australian Election Company is a fit and proper person to conduct the ballot.
The application also sets out the proposed questions to be asked of employees to be balloted in accordance with s.437(3)(b) of the Act.
Section 438 of the Act prohibits a PABO application being made earlier than 30 days before the nominal expiry date of an enterprise agreement. As the Sydney Trains Enterprise Agreement 2018 (the Agreement) has a nominal expiry date of 1 May 2021 and thus the application is made in compliance with s.438.
On the basis of the above, and pursuant to s.443(1) of the Act, a PABO [PR734099] based on the amended draft provided by the CEPU will issue in conjunction with this decision.
DEPUTY PRESIDENT
[1] [2018] FWCA 2318 at [9]
Printed by authority of the Commonwealth Government Printer
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