Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

[2021] FWC 6083

[2021] FWC 6083

FAIR WORK COMMISSION

DECISION

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

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(B2021/941)

COMMISSIONER SIMPSON BRISBANE, 7 OCTOBER 2021

Proposed protected action ballot – Earlier unsuccessful ballot because of failure to reach requisite number of votes of at least 50% - Statutory tests met – Application granted.

[1] This decision concerns an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the ETU). The ETU seeks a protected action ballot order in relation to certain employees of Mater Misericordiae Limited (the Mater).

[2] The Employer has advised that it opposes the application.

[3] The ETU filed the application on 1 October 2021, accompanied by a Form F34B Statutory Declaration in support of the application signed by Mr Scott Reichman, an Organiser employed by the ETU.

[4] On the same day email correspondence was sent from the chambers of Vice President Catanzariti asking the Mater to please indicate whether it objected or consented to the application by 3pm (AEDT) Tuesday 5 October 2021. The parties were advised that if the Respondent objected to the application, the response was to contain details of the basis of the objection and any material upon which was relied.

[5] On 5 October at 4:36pm the Mater sent email correspondence to the chambers of Vice President Catanzariti, the ETU, and the Australian Electoral Commissions (the AEC) setting out the following grounds of objection to the application.

1. On 10 August 2021, the FWC issued a Decision and Order granting the ETU a Protected Action Ballot for proposed industrial actions concerning the expired Mater Maintenances Services Enterprise Agreement 2017-2020.

2. The Ballot was conducted by the Australian Electoral Commission (AEC).

3. On 16 September 2021, the AEC declared that the requisite number of voters (at least 50%) voting in the protected action ballot was not achieved.

4. The ETU now seek to ballot members on the same proposed industrial actions only a few weeks following those very members not voting up those proposed actions.

5. The members were provided with adequate information, time and opportunity by the AEC, and presumably the ETU, to vote up the proposed actions and did not.

6. There has been no change of circumstances and/or no reasons given by the ETU to justify a 2^nd ballot.

7. The ETU assert that members ‘inadvertently neglected’ to participate in the Ballot.

8. Considering points 5 and 6 above, the members did not ‘inadvertently neglect’ to participate.

9. A member has the right not to participate. Further, the Ballot result on 16 September reflects the majority of members exercising their right not to participate and therefore not vote up the proposed actions.

10. A 2^nd Protected Action Ballot Order under such circumstance has the potential to result in the coercion of members to participate and vote in favour of the proposed actions.

[6] At 8.49am on Wednesday 6 October the ETU wrote to the chambers of Vice President Catanzariti copying in the Respondent and the AEC in response to the objections. The ETU submitted that the Respondent’s objections do not address the relevant sections under the Act and the ETU submitted that the Order could be issued.

[7] The ETU submitted that it acts on the instructions of its members, and its members, who are already participating in other forms of protected industrial action, have asked the ETU to file this application because those who did not/could not vote in the previous ballot wish to have that opportunity again.

[8] The ETU submitted by way of example, one member did not receive a ballot at all. If that member did receive and return a ballot, then a valid majority would have been reached. The ETU submitted that the significant delays and disruption caused to Australia Post by COVID-19 impacted the previous ballot and that it is reasonable for a re-ballot to occur.

[9] The ETU submitted that it categorically rejected that a new protected action ballot order has the ‘potential to result in coercion’.

[10] At 10.54am on the same day the Mater sent email correspondence stating that:

•  The ETU provided all member details to the AEC,

•  Mater provided all maintenance employee details to the AEC,

•  The AEC cross-referenced these details,

•  The AEC contacted all members and are expertly experienced in facilitating such processes,

It is unlikely that ‘one member did not receive a ballot at all’ and I request that the ETU have this claim verified by the AEC. Further, the AEC reported no Australian Post disruptions and/or delays, and I request that the ETU have this claim verified by the AEC. In the alternative, a member would have had amply time/opportunity/awareness to raise such a concern with the ETU for rectification prior to the conclusion of the Ballot. Mater submits:

•  The minority participation rate reflects the majority desire not to participate and not to vote up the proposed actions.

•  That the result was fair and is to be respected.

•  An attempt to now produce a different result has the potential to raise coercion concerns.

[Original Text Kept]

[11] The matter was allocated to my chambers and listed for a conference the following day at 10am 7 October 2021.

[12] The Mater indicated during the conference that it pressed its objection to the application, confirmed its primary concern that employees may feel coerced if a new ballot is ordered so soon after the previous unsuccessful ballot in the same terms and made a further submission to the effect that for the purposes of s.443 the application had already been determined.

[13] The Mater confirmed that it did not wish to cross examine Mr Reichman about the contents of his Statutory Declaration, did not seek a hearing and maintained the objection could be dealt with on the papers.

[14] The ETU agreed with the Mater’s position that the matter could be dealt with on the papers and relied on the material already filed. I indicated to the parties at the conclusion of the conference that I would issue a written decision shortly.

[15] I am satisfied on the basis of the uncontested Statutory Declaration of Mr Reichman that the statutory tests in s.443(1) have been met. There is no evidence to suggest otherwise. When the Fair Work Commission (FWC) is satisfied those tests have been met, there is no discretion to refuse an application under s.437.

[16] The Mater’s submission that the making of the Order sought may give rise to a risk of employees feeling coerced to vote in favour of taking the proposed industrial action is speculative, does not address the considerations in s.443, and is not supported by evidence.

[17] Mr Reichman provided an explanation for the failure of the earlier ballot in his Statutory Declaration, and the Mater confirmed it did not wish to challenge Mr Reichman’s Declaration.

[18] According to the AEC report, the earlier unsuccessful ballot of the same questions sought to be balloted in this application, failed as it did not reach the requisite number of votes of at least 50% of the roll. Of the 11 voters on the roll, 5 voted and all voted in favour of the proposed action, however the turnout of voters made up only 45.45% of the roll.

[19] Despite it being unnecessary to address the submission concerning coercion, I make the observation that in any event, an inference could readily be drawn that if the same cohort of employees is already engaging in other forms of industrial action pursuant to an earlier Order issued in April as stated, it seems unlikely that those employees will be subject to coercion by having an opportunity to vote on whether to take other forms of action.

[20] The Mater’s submission that the application has already been determined is without substance as it is clear the earlier ballot was the subject of an Order issued pursuant to a different application. The ‘application’ referred to in s.443 is the application currently before the FWC, not an earlier application.

[21] For the reasons set out above the application for the Order sought is granted. The Order will be issued separately and concurrently with this decision.

COMMISSIONER

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