Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Allen and O'Brien Pty Ltd T/A O'Brien Electrical Services

[2015] FWC 8923

[2015] FWC 8923

FAIR WORK COMMISSION

REASONS FOR EX TEMPORE DECISION

Fair Work Act 2009
s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Allen & O'Brien Pty Ltd T/A O'Brien Electrical Services
(B2015/1708)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 23 DECEMBER 2015

s.459 application to extend the 30 day period in which industrial action is authorised by protected action ballot order in relation to B2015/1473; whether the 30 day period should be extended in these circumstances; application granted.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 22 December 2015. On 29 October 2015 I issued a protected action ballot order on application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (Applicant) in relation to bargaining that was occurring with Allen O'Brien Pty Ltd T/A O’Brien Electrical Services (Respondent).

[2] The order directed that the group of employees who were to be balloted were to be balloted in relation to five questions, each concerning a particular form of proposed industrial action. Pursuant to the order the ballot was to close by 30 November 2015, and the ballot was to be conducted by the Australian Electoral Commission (AEC). On 19 November 2015 the AEC declared the result of the ballot conducted pursuant to my earlier order. It declared that the number of employees on the roll of voters was 12. The number of employees who returned a valid ballot was also 12. In respect of each of the five questions in relation to the industrial action for which approval was sought, the declaration indicates that in respect of questions one and two, 11 employees approved the action and in respect of questions three through five, all 12 employees approved the industrial action.

[3] It is uncontroversial that the Applicant has organised and employees have engaged in industrial action or at least given notice of industrial action contemplated by questions two through five which were approved by the employees. It is also uncontroversial that the Applicant has not given notice of an intention to organise or take industrial action in the form authorised by question one which was the subject of the earlier ballot. The 30 day time limit within which industrial action needs to be notified has elapsed and the Applicant has made an application for an extension of the time period by a further 30 days.

[4] Section 459 of the Fair Work Act 2009 (Act) gives the Fair Work Commission (Commission) discretion to extend the 30 day period within which industrial action must start if the applicant for the protected action ballot, in this case, the CEPU, applies to the Commission for the period of extension and the period has not previously been extended. I am satisfied that an application has been made. I am also satisfied that a previous extension has not been given and, the statutory basis for exercising the discretion therefore exists. The question is whether in the circumstances I should exercise that discretion in favour of the grant of an extension of time.

[5] In response to correspondence sent from my chambers to the Respondent in which I asked whether the Respondent objected to the application for an extension, the Respondent set out four broad reasons for opposing the extension, the first of which is that the company was of the view that there was no need for industrial action as there had been no change in the company’s policy, wages or conditions. Industrial action which is authorised by a ballot is a legitimate form of industrial pressure which the Act recognises and permits to occur during the course of bargaining. Its purposes is, amongst other things, to persuade the other party to in fact change their position on wages and conditions that are the subject of negotiation or bargaining and so the first ground of objection does not provide any sound discretionary basis upon which not to exercise my discretion.

[6] The second reason set out is that the Respondent is of the view that the employees should vote on the industrial action and were not aware of the application for an extension of time. Oral assertions were made by the Respondent during the course of the proceedings to the effect that some employees expressed dissatisfaction that an application for an extension of time had been made by the Applicant. The Respondent declined the opportunity for an adjournment to enable it to call employees to give evidence about the matters asserted. The application for a protected action ballot order was made, as I indicated earlier, in October and determined on 29 October 2015. Thereafter, there was a vote of employees where on the face of the declaration, either a substantial majority or an absolute total of the employees supported the various forms of industrial action. There is nothing before me which would persuade me that the circumstances of the employees have changed in a sufficient way which would warrant the expenditure and time for the conduct of a further protected action ballot. In any event, as I explained to the Respondent during the course of the hearing, if I grant an extended time period and the Applicant gives notice of the intention to take protected industrial action, employees are under no obligation to participate in industrial action and so that if, as a matter of fact, some employees are unhappy with the seeking of an extension and wish not to participate in industrial action, they are free to do so if that is their wish.

[7] The third ground is really a repetition of the second and concerns the lack of consultation between the members of the Applicant and the employees about the question of the authority to make this application. The Applicant is an organisation which is a bargaining representative for the proposed agreement. It has standing to make the application and there is no reason to look behind that authority. It would only be in circumstances where each of the employees might have appointed some other person as a bargaining representative that I might be persuaded to consider whether or not the Applicant is entitled to make the application, but no suggestion that that has occurred has been made.

[8] The final matter relates to the impact of the industrial action and the possibility of resultant redundancies. Whilst I have a great deal of sympathy for the impact of industrial action on any business and in particular, a small business, the scheme of the Act recognises that industrial action is a legitimate use of bargaining power during enterprise bargaining negotiations. As I have already indicated, industrial action has, as its purpose, to create some dislocation, inconvenience and even economic harm to the employer with a view to persuading the employer to make an enterprise agreement or to accede to particular demands as to the terms of any agreement. I am not persuaded by this ground of objection.

[9] In the circumstances, I do not find any of the grounds for objection persuasive. I am not aware of any other basis upon which I should decline to exercise my discretion.  I propose to exercise my discretion in favour of the Applicant. I extend the 30 day time period in which industrial action can take place. The period is extended until 18 January 2016. 

[10] An order giving effect to this decision has been issued separately in PR575386.

DEPUTY PRESIDENT

Appearances:

Ms L Weber for the Applicant.

Mr D O’Brien for the Respondent.

Hearing details:

Melbourne.

2015.

December 22.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR575427>