Christopher Budd, Shane Miller, Amy Van Bilsen, Grant Hammond v The Commonwealth of Australia as represented by the Australian Federal Police Summary

[2024] FWC 643

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Christopher Budd, Shane Miller, Amy Van Bilsen, Grant Hammond
v

The Commonwealth of Australia as represented by the Australian Federal Police

(B2024/212)

DEPUTY PRESIDENT HAMPTON

MELBOURNE, 14 MARCH 2024

Proposed protected action ballot of employees of The Commonwealth of Australia as represented by the Australian Federal Police (‘AFP’)

This is an application by Christopher Budd, Shane Miller, Amy Van Bilsen, and 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 14 March 2024, the Commission was advised that the AFP 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 Mr Christopher Budd provided on behalf of the Applicants setting out the steps taken by them in bargaining with the Employer and that they have been, and are, genuinely trying to reach agreement with the AFP, 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. 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 30 April 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.

An order has been separately issued in PR772259.

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 involved 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 initially raised an objection. As a result, the matter was listed for hearing on 14 March 2024. However, the parties engaged in discussions and arrived at a consent position. An amended application and subsequent draft orders were provided with no objections raised by the AFP. Accordingly, the hearing was vacated and the matter dealt with on the basis of the amended application.

[2] This is 30 working days from the making of the Order, which is the period required by the AEC to conduct a ballot.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application by Christopher Budd, Shane Miller, Amy Van Bilsen, and Grant Hammond (the applicants) for a protected action ballot order concerning employees of the Commonwealth of Australia as represented by the Australian Federal Police (AFP or the employer). The applicants sought to conduct a ballot under section 437 of the Fair Work Act 2009, which pertains to protected industrial action. The application was made on the basis that the applicants had engaged in good-faith bargaining with the AFP but had been unable to reach an agreement regarding the proposed enterprise agreement.

The legal issues the court had to address included whether the statutory requirements for a protected action ballot had been met, particularly those outlined in sections 437 and 443 of the Fair Work Act. The court also needed to determine if there were exceptional circumstances justifying an extended period for written notice, as required by section 443(5) of the Act. Additionally, the court had to decide on the appropriate date by which voting in the ballot should close, considering the statutory timeframes and the requirements of the Australian Electoral Commission.

The Deputy President, Hampton, concluded that the statutory requirements for the ballot had been met. The AFP had withdrawn their initial objection, and the applicants had demonstrated their efforts to reach an agreement with the employer. Consequently, the court granted the application for a protected action ballot order. The Australian Electoral Commission was appointed to conduct the ballot, with voting to close on 30 April 2024. Furthermore, the court determined that there were exceptional circumstances justifying an extended period of written notice for the ballot, and an order was issued accordingly. The matter was also assigned to another Member of the Commission for a compulsory conciliation conference under section 448A of the Act.

Christopher Budd, Shane Miller, Amy Van Bilsen, 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