Australian Municipal, Administrative, Clerical and Services Union v R&L Services Victoria Pty Ltd T/A VicRoads

[2024] FWC 2922

[2024] FWC 2922

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

R&L Services Victoria Pty Ltd T/A VicRoads

(B2024/1367)

COMMISSIONER CONNOLLY MELBOURNE, 22 OCTOBER 2024

Proposed protected action ballot of employees of R&L Services Victoria Pty Ltd

1. This is an application by the Australian Municipal, Administrative, Clerical and Services Union (ASU 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 R&L Services Victoria Pty Ltd trading as VicRoads (VicRoads or Employer).

1. On 18 October 2024, the Commission was advised that the Employer objected to the application being made.  The grounds of objection identified by the Respondent included insufficient clarity of the group of employees to be balloted and ambiguity in respect of proposed ballot questions concerning indefinite or periodic ban on transfers to other geographic locations, responding to emails, and answering telephone calls.

1. In respect of the objections on grounds of insufficient clarity of the group to be balloted and ambiguity in terms of a ban on transfers of work locations, the Applicant has provided an amended application and amended draft order.  The amended forms clarify the employees to be balloted are all employees of the Respondent who will be covered by the proposed enterprise agreement and for whom the ASU is the bargaining representative, including employees under the Vic Roads EA9, Victorian Public Service Enterprise Agreement 2020 and Clerks – Private Sector Award 2020.  A proposed amended ballot question clarifies, with respect to geographic locations, the ASU seeks approval for “indefinite or periodic ban on adhering to changes to work locations by way of transfer or rostering”.

1. The ASU further indicated it considers the proposed questions seeking approval for indefinite or periodic bans on responding to emails and answering telephone calls as sufficiently clear and presses its application.

1. The matter was allocation to my Chambers for determination late Friday, 18 October 2024.  In the morning on Monday, 21 October 2024, I wrote to the parties seeking that they advise my chambers by 4:00pm that day if they had further submissions or sought to be heard further in relation to this matter.  If so, I indicated the matter would be listed for hearing at 9:00am on Tuesday, 22 October 2024.   

1. Neither party made additional submissions nor sought to be heard further in relation to the matter.  In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

Submissions

1. The ASU relies on the material filed and its amended application, including the declaration of Matthew Angus Price (Organiser), setting out the steps taken by the ASU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with VicRoads.

1. The ASU reject that its proposed ballot questions are ambiguous and submits its proposals are sufficiently clear.  That s.443 of the Act requires the Commission to make a protected action ballot order if an application has been made under s.437.  Furthermore, that the Commission can be satisfied on the evidence before it that the Applicant has been, and is, genuinely trying to reach agreement.  On this basis, they submit the order should be made. 

1. There is no dispute the application has been made under s.437 of the Act.  The Respondent submits that it is unclear whether the ASU’s proposed bans on responding to emails and answering telephone calls extends to all calls and emails or certain types.

1. The Respondent has not provided any additional evidence or material to support this objection further. 

Consideration

1. The Respondent’s objections are that there is a lack of clarity in the contested ballot questions proposed by the ASU concerning potential bans on answering emails and telephone calls.  They have not presented any evidence or supporting material to support this objection.

1. The words the ASU has proposed are as follows:

“…indefinite or periodic ban on responding to emails.”

and

“…indefinite or periodic ban on answering telephone calls.”

1. Considering these words, I am satisfied no ambiguity exists in their plain and ordinary meaning to provide an opportunity for bans on responding to emails and answering telephone calls.

1. As the Applicant has identified, s.443 of the Act sets out when the Commission must make a protected ballot order as follows:

“443 When the FWC must make a protected ballot order

(1)   The FWC must make a protected ballot order in relation to a proposed enterprise agreement if:

(a)an application has been made under 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.”

1. This being the case, and on the basis of the material before me, 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.

1. The ballot is to be conducted by the Australian Electoral Commission (AEC).

1. 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 3 December 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. An Order has been separately issued in PR780455.

1. In due course, my Chambers will take the steps necessary to conduct the s.448A compulsory conciliation conference.  An Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference will be issued.  It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

COMMISSIONER

[1] This is, in effect, 30 working days from the making of the Order as required by the AEC.

Printed by authority of the Commonwealth Government Printer

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