Australian Institute of Marine & Power Engineers v Serco Defence Services Pty Limited T/A Serco

[2024] FWC 3

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Institute of Marine & Power Engineers
v

Serco Defence Services Pty Limited T/A Serco

(B2023/1411)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 2 JANUARY 2024

Proposed protected action ballot of employees of Serco Defence Services Pty Limited T/A Serco

This is an application by the Australian Institute of Marine & Power Engineers (AIMPE or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Serco Defence Services Pty Limited T/A Serco (Serco or Employer).

On 2 January 2024, the Commission was advised that Serco did not, in effect, object to the Application subject to certain concerns, which I have addressed at Paragraph 7 of this Decision.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Mr Nathan Niven, Senior National Organiser, setting out the steps taken by the AIMPE in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Serco, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s 468A of the Act[1] and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 19 January 2023.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

The Respondent raised concerns in relation to the ability for Serco employees to participate in the Ballot, noting that the employees to be balloted are currently at sea. The Applicant subsequently provided submissions, supporting their proposal for the ballot to close by 19 January 2023. The Applicant advised that the employees at sea have access to their emails on board the vessel.[3] Accordingly, I am satisfied that the form of voting (electronic) would enable employees at sea to participate in the ballot within the Applicant’s proposed ballot period.

An Order has been separately issued in PR769886.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400

[2] This is, in effect, thirteen (13) working days from the date of the Order.

[3] Applicant email dated 2 January 2024.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Institute of Marine & Power Engineers (AIMPE) has applied to the Fair Work Commission for an order that a protected action ballot be held among employees of Serco Defence Services Pty Limited T/A Serco. The application was made under section 437 of the Fair Work Act 2009, and the Commission was advised that Serco did not object to the application, subject to certain concerns which were subsequently addressed. The ballot is intended to ascertain the employees' views on a proposed enterprise agreement, and the Commission found that all requirements under the Act had been met. The ballot is to be conducted by Democratic Outcomes Pty Ltd T/A CiVS, which has been approved as a ballot agent. Serco had raised concerns about the ability of employees at sea to participate in the ballot, but the Commission was satisfied that the electronic voting method would enable their participation.

The key legal issue before the Commission was whether the application met the criteria set out in section 443 of the Fair Work Act for a protected action ballot order. This involves determining whether there was a notification time for the proposed agreement, and whether the applicant had genuinely tried to reach agreement with the employer. The Commission found that the AIMPE had met these requirements and that the proposed ballot period was appropriate, given the employees' access to email while at sea. The Commission also addressed Serco's concerns about the form of voting, concluding that electronic voting would allow all eligible employees to participate.

The Commission determined that the ballot period would close on 19 January 2023, which is 13 working days from the date of the order. The Commission also decided to assign the matter to another member for a compulsory conciliation conference under section 448A of the Act. The order for the ballot was issued, and the matter will proceed to conciliation with the aim of resolving the enterprise agreement negotiations.

In conclusion, the Fair Work Commission granted the AIMPE's application for a protected action ballot order, addressing Serco's concerns about the voting method and the ability of employees at sea to participate. The ballot period was set, and the matter was assigned for compulsory conciliation under section 448A of the Act. The Commission's decision ensures that the employees' views on the proposed enterprise agreement will be ascertained through a properly conducted ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established