Chistopher Budd, Shane Miller, Amy van Bilsen and Grant Hammond v The Commonwealth of Australia as Represented by the Australian Federal Police Summary

[2024] FWC 1605

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Chistopher Budd, Shane Miller, Amy van Bilsen and Grant Hammond
v

The Commonwealth of Australia as Represented by the Australian Federal Police

(B2024/777)

DEPUTY PRESIDENT HAMPTON

MELBOURNE, 20 JUNE 2024

Proposed protected action ballot of employees of the Commonwealth of Australia as represented by the Australian Federal Police

This is an application by Mr Chistopher Budd, Mr Shane Miller, Ms Amy van Bilsen and Mr Grant Hammond (collectively the Applicants) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of the Commonwealth of Australia as represented by the Australian Federal Police (AFP or Employer).

On 18 June 2024, the Commission was advised that the Employer, in effect, did not object to the Application, as amended.[1]

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 Christopher Budd, AFP employee, setting out the steps taken by the Applicants in bargaining with the Employer and that they have been, and are, genuinely trying to reach agreement with it, 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 Australian Electoral Commission (AEC).

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

I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of written notice for the purposes of s.414(2)(b) of the Act when taking certain forms of industrial action set out in the Order made by the Commission. The extended notice period of 5 working days applies to the items listed within Clause six (6) of the Order.

An Order has been separately issued in PR776204.

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 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] The AFP sought an amendment to clause 5 of the proposed order and the Applicants agreed to the proposed changes.

[2] This is, in effect, 30 working days from the making of the Order as sought in the application, which is the period required by the AEC to conduct the ballot.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an application by employees Christopher Budd, Shane Miller, Amy van Bilsen, and Grant Hammond, collectively referred to as the applicants, for a protected action ballot order against the Commonwealth of Australia, represented by the Australian Federal Police (AFP). The applicants sought to conduct a ballot among certain AFP employees regarding potential protected industrial action, as provided for under section 437 of the Fair Work Act 2009. The AFP did not object to the application, allowing the matter to proceed on the written submissions and documentation submitted by the applicants.

The legal issues before the Commission included whether the requirements for a protected action ballot were met and whether the extended notice period was justified. The Commission needed to determine if the applicants had genuinely attempted to reach an agreement with the employer and if the notification period was appropriate for the proposed agreement. Additionally, the Commission had to decide on the date by which voting in the ballot should close, which would also establish the ballot period under the Act.

The Commission found that all requirements for a protected action ballot had been met, as evidenced by the declaration from Christopher Budd, an AFP employee, which detailed the bargaining efforts made by the applicants. The Commission determined that the extended notice period of five working days was justified for specific forms of industrial action listed in the Order. Consequently, the Commission ordered that the ballot be conducted by the Australian Electoral Commission, with voting to close on 1 August 2024. The Commission also decided to assign another member to conduct the compulsory conciliation conference, issuing an order for the attendance of bargaining representatives to facilitate meaningful negotiations.

The final orders issued by the Commission included the approval of the ballot, the extended notice period for specific industrial actions, and the assignment of another member to oversee the compulsory conciliation conference. The Commission further directed that the parties attend the conference prepared to negotiate in good faith.

Chistopher Budd, Shane Miller, Amy van Bilsen and Grant Hammond v The Commonwealth of Australia as Represented by the Australian Federal Police

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established