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

[2013] FWC 9899

[2013] FWC 9899

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Australian Municipal, Administrative, Clerical and Services Union
v
Country Fire Authority
(B2013/1571)

COMMISSIONER WILSON MELBOURNE, 17 DECEMBER 2013

Proposed protected action ballot by employees of the Country Fire Authority .

[1] This is an application for a protected action ballot order by members of the Australian Municipal, Administrative, Clerical and Services Union (“ASU”) employed by the Country Fire Authority (“CFA”).

[2] The application is made pursuant to s.437 of the Fair Work Act 2009 (“the Act”).

[3] The Applicant seeks to ballot all employees employed by the CFA, who will be covered by the proposed enterprise agreement covering CFA District Mechanical Officers and Tower Overseers, and for whom the ASU is their bargaining representative or who are members of the ASU.

[4] In considering this matter 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.

[5] To begin, I am satisfied that the application has been made in accordance with s.437 of the Act.

[6] The next matter to which attention must be given is whether or not the Applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. In this matter, the ASU has filed evidence of the steps taken by the union to bargain and the progress of the bargaining to date. The CFA does not oppose the granting of the Order, however they provided certain views in correspondence to my Chambers that could give rise to a view the CFA questioned the extent to which the ASU was genuinely trying to reach an agreement. As a result of the CFA recording its views, the ASU was invited to provide further material, and subsequently did so. As a result of the provision of this further information, I am satisfied the ASU is genuinely trying to reach agreement and find that the application meets the statutory criteria.

[7] The correspondence from the CFA sent to my Chambers on 16 December 2013 identified two additional matters with the ASU’s application to be drawn to the attention of the Commission. The first relates to the format of the question/s to be put to voters in the ballot in the ASU’s application. The application provides for a ‘yes’ or ‘no’ response to a complete set of 17 questions referred to in Schedule A. The CFA wrote that:

‘...that appears to be inconsistent with the democratic process and the diverse nature of the potential actions contained in the schedule and with the statement at item 5 that the actions “may be taken separately”. 1

[8] In response, the ASU wrote that they do not make any concession with respect to this issue.

[9] The Full Bench has made clear that in most cases the drafting of the questions in a Protected Action Ballot Order will be a matter for the applicant 2 and the questions should be specific enough such that employees are capable of responding to them3.

[10] Accordingly I find the question proposed by the Applicant to be put to voters in the ballot is specific enough to be responded to, and that it is consistent with the Act.

[11] The second matter identified by the CFA concerns the date by which the ballot would close. In its application, the ASU seeks the closing date for the ballot to be 20 days from the date of the order issued. The CFA seeks the closing date for the ballot to be 30 days from the date of the order issued due to the coming festive season. In subsequent correspondence from the ASU to my Chambers on 17 December 2013, the ASU confirmed that they do not object to the timeline of the ballot process being altered from 20 days to 30 days. I am satisfied that a period of 30 days in consistent with the requirements of s.443(3A) of the Act.

[12] Having decided all of these matters and that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by ASU.

COMMISSIONER

 1   Letter from the Douglas Drew of the CFA to my Chambers, received 16 December 2013

 2   John Holland Pty Ltd v AMWU[2010] FWAFB 526, at [19]

 3   NTEU v RMIT University[2013] FWCFB 9549, at [25]

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