Australian Municipal, Administrative, Clerical and Services Union v Country Fire Authority

[2017] FWC 6189

[2017] FWC 6189

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union

v

Country Fire Authority

(B2017/1136)

Commissioner Wilson MELBOURNE, 24 NOVEMBER 2017

Proposed protected action ballot of employees of Country Fire Authority.

1. This is an application for a protected action ballot order by the Australian Municipal, Administrative, Clerical and Services Union (the ASU) in relation to certain employees of the Country Fire Authority (the CFA) and whose employment is presently covered by the CFA District Mechanical Officers and Tower Overseers Agreement 2014[1], (the 2014 Agreement), the nominal expiry date of which is 13 November 2017.

1. The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act).

1. The Applicant seeks to ballot all employees of the CFA who will be covered by the proposed enterprise agreement and for whom the ASU is their bargaining representative.  The material filed in this application by the ASU asserts that it is a bargaining representative for the purposes of s.176(1) of the Act.

1. In considering this application I must apply s.443 of the Act which provides:

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.

(4)       If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a)       the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b)       the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(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.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

1. I am satisfied that the application has been made in accordance with s.437 of the Act.

1. The ASU has filed evidence of the steps taken by them to bargain and of the progress of bargaining to date. I am satisfied that the Applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. Nothing within that material causes me to form a view that the ASU is not genuinely trying to reach an agreement with the employer. Further, I note that CFA have consented to the application and the Order being made.

1. I am satisfied that there are exceptional circumstances justifying the period of written notice referred to in s.414(2)(a) of the Act to be longer than three working days with respect to questions 1, 2, 6, 7, 8, 9, 10, 11 and 12 of the order. As such these questions will have seven day notification periods. 

1. Having determined these matters, and being satisfied that the requirements of s.443(1)(a) and (b) of the Act have been complied with, I must make a protected action ballot order, as sought by the ASU.

1. At the request of the CFA, the Commission notes that industrial action is not protected under the Act unless and until it has been authorised through a protected action ballot and the proposed action has been properly notified to the employer.

COMMISSIONER

[1] AE411033.

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