Australian Municipal, Administrative, Clerical and Services Union v Metropolitan Fire & Emergency Services Board

[2012] FWA 3008

[2012] FWA 3008

FAIR WORK AUSTRALIA

DECISION

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

Australian Municipal, Administrative, Clerical and Services Union
v
Metropolitan Fire & Emergency Services Board
(B2012/652)

COMMISSIONER ROE MELBOURNE, 5 APRIL 2012

Proposed protected action ballot by employees of The Metropolitan Fire & Emergency Services Board.

[1] This is an application for a protected action ballot by members of the Australian Municipal, Administrative, Clerical and Services Union (ASU) employed by the Metropolitan Fire and Emergency Services Board (MFB). The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act). The Application was made on the afternoon of 2 April 2012 and was determined on 4 April 2012.

[2] The matter was heard on 4 April 2012. I granted leave for Mr Tuck to appear on behalf of the MFB. Mr Smallbone represented the ASU.

[3] The current Enterprise Agreement provides that negotiations for a new agreement shall commence on 1 January 2011 and the agreement has a nominal expiry date of 30 June 2011.

[4] The applicant seeks to ballot employees of the MFB who would be subject to a proposed enterprise agreement and who are represented by the bargaining representative the ASU.

[5] In considering this matter I must apply s.443 of the Act which provides:

“443 When FWA must make a protected action ballot order

(1) FWA 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) FWA 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) FWA 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 FWA 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 FWA decides, under subsection 444(1), is to be the protected action ballot agent; and

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

(5) If FWA 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.”

[6] To begin, I am satisfied that the Application has been made in accordance with s.437 of the Act. I am satisfied that the Application was served upon the Respondent and the AEC as the ballot agent as required by Section 440 of the Act. I am satisfied that the Application was not made earlier than 30 days prior to the nominal expiry date of the current agreement, as required by Section 438 of the Act.

[7] 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 on behalf of the employees who are to be balloted. I am satisfied, after hearing submissions from the ASU that this is in fact the case. Fair Work Australia has pursuant to Section 240 been involved in numerous conciliation conferences concerning the Agreement. It would be disappointing if industrial action were to occur before 16 April 2012 which is the end of the present scheduled process under the auspices of FWA. The MFB did not oppose my finding that the parties are genuinely trying to reach an agreement.

[8] I am satisfied that the questions adequately specify the nature of the proposed industrial action and meet the requirements of Section 443(3)(d). During the proceedings I agreed to some minor amendments to improve the clarity of a number of the questions. The proposed Order as amended adequately describes the group of employees to be balloted as required by Section 443(3)(b). The AEC will be the ballot agent.

[9] The MFB raised a further concern about the questions in the proposed ballot order.

[10] The MFB was concerned that in respect of two of the proposed forms of industrial action (questions 7 and 9) there might be an impact on the capacity of the MFB to deliver effective fire service operations. In response the ASU provided an undertaking stating that:

“The ASU does not believe that any actions it would undertake will adversely affect the effective operation of fire services. However if after it notifies industrial action the MFB expresses concerns within 24 hours of that notification that the particular action would prevent the effective operation of the fire services then the ASU undertakes that it will respond to the MFB concerns prior to the taking of that particular industrial action.”

[11] In addition the ASU undertook to provide 7 days notice in respect to industrial action which may be taken pursuant to question 7 and question 9 by Information Communication Services technicians, Information Communication Services help desk employees, Scientific Officers and Emergency Control Centre employees.

[12] I allowed the MFB leave to make further application to seek to vary the Order in respect to the period of notice in respect to questions 7 and 9 pursuant to Section 443(5) provided such notice was made within the next seven days.

[13] Having decided that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the Applicant and as varied by agreement during the proceedings. At the conclusion of the proceedings I advised the parties that I would issue the Order. I have published that Order separately.

COMMISSIONER

Appearances:

Mr J Smallbone for the ASU.

Mr J Tuck for the MFB.

Hearing details:

2012
Melbourne
April 4

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