Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation T/A Australia Post

[2021] FWC 4766

[2021] FWC 4766

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
v
Australian Postal Corporation T/A Australia Post
(B2021/498)

COMMISSIONER MCKINNON MELBOURNE, 4 AUGUST 2021

Proposed protected action ballot order of Tasmanian employees of Australia Post – whether application must be authorised by union rules – whether genuinely trying to reach agreement – whether part of a group of employees represented by a single bargaining representative can apply for a protected action ballot order.

[1] Australia Post, like most enterprises in Australia, has been significantly affected by the COVID-19 pandemic. It is covered by the Australia Post Enterprise Agreement 2017 (the 2017 Agreement) which nominally expired on 9 August 2020. Early attempts to bargain for a replacement agreement were not fruitful. Australia Post initiated, and then withdrew from, bargaining from 16 March 2020 to 17 June 2020 and 22 June 2020 to 29 March 2021. On 9 July 2020, bargaining was deferred by agreement until 2021 for reasons related to the pandemic. One aspect of the agreement to defer bargaining was a commitment from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) not to organise industrial action until after 9 August 2021.

[2] On 31 March 2021, Australia Post again initiated bargaining for the replacement agreement. Approximately 30,000 employees will be covered by the proposed agreement if it is made and approved. Of these, approximately 527 employees are in Tasmania.

[3] Bargaining representatives for the proposed agreement include CEPU and the Community and Public Sector Union (CPSU). At least 13 bargaining meetings have been held between 11 May 2021 and 7 July 2021. On 9 July 2021, Australia Post and the CPSU reached agreement on terms for a proposed “2021 Agreement”. On 12 July 2021, the CEPU’s lead negotiator, Greg Rayner, advised Australia Post that the CEPU’s Communication Division Executive had voted to approve the offer for the proposed 2021 Agreement. Mr Rayner is the CEPU’s National President and Secretary of the CEPU’s Communication Division. The effect of his advice on bargaining, and Mr Rayner’s authority to give the advice, is in dispute.

[4] In the meantime, on 1 July 2021, the CEPU’s Electrical, Energy & Services Division (Tasmanian Branch) applied for a protected action ballot order covering its members in Tasmania who are employed by Australia Post and who will be covered by “the proposed enterprise agreement”. The application is made by Michael Anderson, Vice President of the CEPU’s Electrical, Energy & Services Division and Secretary of the Division’s Tasmanian Branch. The application is signed by Mr Anderson in his capacity as “Divisional Branch Secretary” – in other words, on behalf of the Division’s Tasmanian Branch. Meetings with members of the Tasmanian Branch on 13 and 15 July 2021 endorsed the application and expressed their disappointment with the offer made by Australia Post.

[5] Australia Post objects to the application for a protected action ballot order for three reasons:

1. Firstly, it says there is no jurisdiction to deal with the application. The CEPU is not authorised to apply for the order under its Rules because the application affects members in more than one division of the CEPU and it has not been authorised by the National Council.

2. Secondly, it says the CEPU is not genuinely trying to reach agreement with Australia Post, because agreement has already been reached.

3. Thirdly, it says the scheme of Fair Work Act 2009 (Cth) (the Act) does not support the making of a protected action ballot order that covers only part of a group of employees that is represented in bargaining by a particular bargaining representative.

[6] The question is whether a protected action ballot order must be made.

Relevant background

[7] Until at least July 2021, bargaining between Australia Post and the CEPU proceeded on the basis that the CEPU was one entity. Around the bargaining table, the CEPU was represented by delegates from its National Office, State and Territory Branches in New South Wales, Western Australia, Tasmania, Queensland, Northern Territory, South Australia and Victoria, together with a communications officer and a legal/industrial officer. Except for the Tasmanian delegate, Paul Sutton (from the CEPU’s Electrical, Energy & Services Division), delegates were drawn from the CEPU’s Communications Division. This reflects a demarcation in coverage under the registered rules of the CEPU (the CEPU Rules) between employees of Australia Post in Tasmania, who are covered by the Electrical, Energy & Services Division, and employees in all other jurisdictions, who are covered by the Communications Division. 1

[8] The log of claims put by the CEPU to Australia Post was a single, national log of claims, developed in consultation with the various State and Territory Branches. The Tasmanian Branch’s claims were incorporated into the national log of claims, under the heading “Australia Post Enterprise Bargaining CEPU (Communications Division) Log of Claims”. The log was then presented to Australia Post. No separate, state-based claims were made or pressed by any of the respective Branches of the CEPU independently of bargaining meetings. Claims put in bargaining meetings were on the basis that claims were made on behalf of all employees. Australia Post dealt with the claims on that basis throughout the negotiations. A common understanding in bargaining was that the coverage of the proposed agreement would replicate coverage of the 2017 Agreement nationally. There is no evidence of any proposed enterprise agreement that would cover only the Tasmanian employees of Australia Post.

[9] A dedicated campaign website, was established on behalf of the CEPU to communicate with members across the country about bargaining for the proposed agreement. The website banner on the front page says “members across Post are fighting to deliver a better tomorrow”. Updates on the website encourage members to register with their relevant State Branch Office to receive bargaining information. On 12 July 2021, the website carried an article “Agreement in-principle”. It stated that “despite lockdowns, negotiations for a new EBA have continued over recent weeks and we’re pleased to share with members that the CEPU/CWU, CPSU and Australia Post have now reached agreement, in-principle.” It then set out key outcomes for members from bargaining. The post – indeed all such posts in evidence – were authorised by Mr Rayner in his capacity as “Secretary, CEPU Communications Division, CWU Australia”.

[10] The point is that throughout bargaining the CEPU held out that it had a unified national position in relation to the proposed agreement, for which Mr Rayner was lead negotiator and spokesperson, on behalf of the CEPU rather than only the CEPU’s Communications Division. Other delegates of the CEPU, including Mr Sutton, deferred to Mr Rayner to lead bargaining discussions for the proposed agreement on their behalf. Australia Post relied upon representations to the effect that Mr Rayner was to lead the bargaining team; that outside of bargaining meetings, Mr Rayner was the point of contact for bargaining for the 2021 Agreement; and that his approval was required for bargaining meetings to go ahead.

[11] The unified position of the CEPU was not in doubt until 1 July 2021, when the Tasmanian Branch applied for this order. There is no evidence that the Tasmanian Branch consulted with other branches or divisions of the CEPU before it applied for the order, and there is no evidence that its actions were, or are, endorsed by the CEPU more broadly. Australia Post did not know that the position of the Tasmanian Branch was different from the position of the CEPU’s Communication Division until it received the application on or about 1 July 2021.

[12] A key issue in bargaining was a new delivery model for Australia Post. In bargaining meetings in June and July 2021, the parties discussed “Terms of Reference for the National Working Group on the Delivery Model (2021)” as a means of resolving the issue. The CEPU agreed to positively support a vote on the 2021 Agreement in return for commitments from Australia Post that there would be no forced redundancies and that certain employees would become entitled to a 15% penalty payment.

[13] On 9 July 2021, Australia Post made a final offer to bargaining representatives for a 2021 Agreement. The offer was accepted that day by the CPSU. On 12 July 2021, the offer was accepted ‘in-principle’ by Mr Rayner, following a vote of the CEPU’s Communications Division Executive and on the basis that it would be in settlement of the CEPU’s national log of claims. The Terms of Reference were then formally signed by Mr Rayner on 13 July 2021 in his capacity as National Secretary of the Communications Division.

[14] The Tasmanian Branch says it was not consulted before the offer for a 2021 Agreement was accepted, or the Terms of Reference signed. While it seems unlikely that emerging tension in the two divisions’ bargaining positions was not known internally, and not discussed within the CEPU at the time in light of the opportunity for those discussions to occur at least in the final bargaining meeting on 7 July 2021, there is no evidence of same. The Tasmanian Branch remains opposed to the final offer made by Australia Post, even though its opposition is inconsistent with the bargaining position put forward by Mr Rayner on behalf of the CEPU more broadly.

The statutory scheme

[15] Section 176 of the Act deals with bargaining representatives for a proposed enterprise agreement. An employee organisation is a bargaining representative of an employee who will be covered by the agreement if, relevantly, the employee is a member of the organisation. An employee organisation is not a bargaining representative for an employee unless it is entitled to represent their industrial interests in relation to work that will be performed under the proposed agreement. The effect of section 12 of the Act is that an employee organisation is an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (the RO Act). 2

[16] Section 437 of the Act permits a bargaining representative to apply for a protected action ballot order. Section 437(1) provides:

“A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.”

[17] Sections 437(3) and (5) provide:

“The application must specify:

(a)  the group or groups of employees who are to be balloted; and

(b)  the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

…

(5)  A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a)  will be covered by the proposed enterprise agreement; and

(b)  either:

(i)  are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii)  are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.”

[18] If there has been a notification time in relation to the proposed agreement, the Commission must make a protected action ballot order in the circumstances set out in section 443. Section 443 relevantly provides:

“443 When FWC must make a protected action ballot order

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

(a) an application has been made under section 437; and

(b) 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.

(2) FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3)  A protected action ballot order must specify the following:

(a)  the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.”

[19] The concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular bargaining. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of section 443 which must be applied. In the same way, it is not appropriate or even possible to establish rigid rules for the required point of bargaining that must be reached because all of the relevant circumstances must be considered in assessing whether the test in section 443 of the Act is met. This will frequently involve considering the extent of progress in negotiations, and the steps taken in order to try to reach an agreement. 3

Is the CEPU authorised to apply for the order under its Rules?

[20] Under the CEPU Rules, the National Council has general control and conduct of the business and affairs of the CEPU, having regard to divisional autonomy requirements. National Council has exclusive power to deal with matters affecting more than one division of the CEPU, to determine and implement policy on matters affecting more than one division, to resolve disputes between divisions and to authorise the National Secretary or a Divisional Secretary, to initiate proceedings or defend any proceedings in a court or tribunal when the matter affects more than one division. 4 Applications in the Commission may be lodged on behalf of the CEPU by the National Council or its authorised delegee, the National Secretary or a National Executive Officer after consultation with the other National Executive Officers.5

[21] Divisions of the CEPU each have autonomy to decide matters which do not directly affect the members of another division, including their industrial interests and matters of policy pertaining solely to the division. 6 Divisional branches manage the local affairs of their branch. They have autonomy in matters affecting members of the branch only, and matters concerning the participation of the divisional branch in any State industrial conciliation and arbitration system.7 As Divisional Branch Secretary, Mr Anderson has authority to commence proceedings in the Commission in respect of the local affairs and/or members of the Tasmanian Branch.8

[22] The autonomy of divisions to decide matters that do not directly affect members of another division is a matter to which the National Council must give due regard in directing the conduct of the CEPU. However, conferral of exclusive power on the National Council to deal with matters affecting more than one division has the effect of reducing divisional autonomy to matters that affect only the relevant division, whether directly or indirectly. This is course subject to any delegation from the National Council or other authorised actions of National Executive Officers.

[23] Section 793 of the Act is also relevant. It provides that conduct engaged in on behalf of a body corporate by an officer of the body, within the scope of their actual or apparent authority, is taken to have been engaged in also by the body. The principles to be applied in the application of section 793 were considered in Australian Nursing and Midwifery Federation v Kaizen Hospitals (Essendon) Pty Ltd & Ors. 9 In short, where an officer is held out by a company as having authority, and the third party relies on that apparent authority, and there is nothing in the company’s constitution to the contrary, the company is bound by its representation of authority. It is not enough that the representation comes from the officer alone. Whether the representation is general, or specifically related to a particular transaction, it must come from the company, when seen through the lens of the conduct of the company as a whole.

[24] The application made by the CEPU’s Tasmanian Branch seeks a ballot of its members only about whether they wish to engage in particular protected industrial action. If the application succeeds, only Tasmanian members of the CEPU who are employed by Australia Post will be eligible to be included on the roll of voters and entitled to vote in the ballot. 10

[25] The particular protected industrial action contemplated by the application is action in support of “the proposed enterprise agreement … for whom the CEPU is the bargaining representative.” A bargaining representative is of course entitled to rely on the agreement it proposes as the “proposed agreement” upon which its application relies, or even choose to rely on the proposal of another bargaining representative. In this case the only evidence of a proposed agreement is that between the CEPU and Australia Post, to apply nationally, to all employees of Australia Post who are covered by the 2017 Agreement.

[26] If the proposed agreement is something other than the agreement the parties have been bargaining for since March 2021, there is no evidence of it. There is, for example, no evidence of any step taken by the Tasmanian Branch, in pursuit of a proposed agreement with Australia Post, to advance its claims in bargaining separately to those of the CEPU’s Communications Division.

[27] Such a proposal could only have emerged after 1 July 2021 when it became apparent that the bargaining positions of the CEPU and its Tasmanian Branch had diverged. Mr Sutton gave evidence about why some of the Tasmanian members are disappointed with the offer made by Australia Post and what has been done about it. Members are disappointed that their key claims have not been met. They do not reject all of the outcomes in bargaining to date, but they want their penalty rates included in “the EBA”. 11 The words “the EBA” must mean the agreement for which the parties have been bargaining – now known as the 2021 Agreement – and the product of a process in which Mr Sutton has played an active role.

[28] I find that the proposed agreement to which the application for protected action ballot orders relates is the 2021 Agreement.

Does the application affect more than one division of the CEPU?

[29] The 2017 Agreement covers employees who are CEPU members attached to both the Communications Division and the Electrical, Energy & Services Division. These employees will cease to be covered by the 2017 Agreement and will become covered by any agreement that replaces it. Bargaining for the agreement affects the terms and conditions of employment of all CEPU members attached to more than one division. Protected industrial action in support of (or in resistance to) that agreement also affects all members of the CEPU employed by Australia Post because its purpose is to persuade Australia Post to modify the content of its offer for their benefit. It may have that effect, or it may have the opposite effect, firming up the position of Australia Post and delaying the progress of bargaining. I am satisfied that the application for a protected action ballot order for Tasmanian members of the CEPU who will be covered by the proposed agreement affects more than one division of the CEPU.

[30] As earlier noted, the National Council has exclusive power to deal with matters affecting more than one division of the CEPU, just as it has exclusive power to authorise a Divisional Secretary to initiate proceedings in relation to those matters. There is no evidence that Mr Anderson was authorised by the National Council to initiate these proceedings. There is also no evidence to rule out the possibility that he was so authorised. Mr Anderson is not authorised under the CEPU Rules to initiate a proceeding in the Commission that affects more than one division. He is, however, authorised to initiate applications in the Commission that are in respect of the members of the Tasmanian Branch.

[31] The evidence does not establish that the application was authorised by the National Council at the time it was made. Mr Anderson did not have actual authority under the CEPU Rules to make the application.

[32] It does not necessarily follow that the Commission lacks jurisdiction to deal with the application. Compliance with organisational rules is not a pre-condition to the exercise of a right to apply under section 437 of the Act, although it is obviously desirable. If the CEPU is a bargaining representative of an employee who will be covered by a proposed agreement, it may apply for a protected action ballot order in that capacity. Breaches of organisational rules are separately matters for the organisation to deal with in accordance with those rules, and if appropriate, by referral to the Federal Court under the RO Act.

[33] The validity of an application must be assessed at the time it was made. An application made with apparent authority at the time it was made is valid, even if it is later discovered that there was no actual authority to make the application. 12

[34] The CEPU’s standing as bargaining representative under the Act relies on both:

1. its status as a federally registered organisation under the RO Act 13, and

2. its entitlement to represent the industrial interests of employees who will be covered by the proposed agreement under the CEPU Rules. 14

[35] There is no dispute that the CEPU is a bargaining representative for its members who are employed by Australia Post and who will be covered by the 2021 Agreement. The question is whether the application was made by the CEPU in its capacity as bargaining representative. An employee can only have one bargaining representative.

[36] On 1 July 2021, when the application was made by the CEPU’s Tasmanian Branch, the fact that it had a different bargaining position to that of the CEPU’s Communications Division was not known. In my view, the Tasmanian Branch (through Mr Anderson) had apparent authority to apply for the protected action ballot order, on behalf of the CEPU, in relation to the 2021 Agreement, at that time. His apparent authority was derived from Mr Anderson’s position as an official of the CEPU, his status as a member of the National Council and Tasmanian Branch Secretary, the application having been made only in relation to the CEPU’s members in Tasmania, and Australia Post’s understanding that the CEPU and its internal divisions were acting with one voice.

[37] It only became apparent after the application was made that the Tasmanian Branch was no longer acting in concert with the CEPU’s Communications Division. The Tasmanian Branch has now taken a position in relation to the proposed agreement that puts it at odds with the CEPU more broadly. This is despite the CEPU’s acceptance of the offer for the 2021 Agreement, which Mr Rayner as National President of the CEPU, and lead negotiator for the 2021 Agreement, can be taken to have communicated to Australia Post on behalf of the CEPU as bargaining representative. The Terms of Reference commit the CEPU to positively supporting a vote of employees on the 2021 Agreement and refraining from any conduct that may negatively impact a successful yes vote. Plainly, protected industrial action in relation to the 2021 Agreement would be inconsistent with this commitment.

[38] However, the ‘in-principle’ agreement and agreement on the Terms of Reference were formalised on 12 and 13 July 2021. Whether this was the position of CEPU on 1 July 2021 is not established, although it seems unlikely given that the final offer made by Australia Post to resolve the bargain was not made until 9 July 2021.

[39] At the time the application was made, it must be taken to have been made by the CEPU in its capacity as bargaining representative for the proposed 2021 Agreement. The application was validly made.

Has the CEPU been genuinely trying to reach agreement with Australia Post, and is it?

[40] It is then necessary to consider whether the CEPU is genuinely trying to reach agreement with Australia Post. Whether an applicant is genuinely trying to reach agreement with the employer of employees to be balloted is a question of fact to be decided having regard to the circumstances of the case, which might include the extent of progress in negotiations, steps to try to reach agreement and the nature or content of claims. 15

[41] The applicant in this matter is the CEPU. The CEPU has attended and participated in at least thirteen bargaining meetings in the period from May to July 2021. In a practical sense, bargaining has all but concluded. An ‘in-principle’ agreement has been reached on a revised offer that Australia Post will now put to its employees. This does not mean the CEPU can no longer be genuinely trying to reach agreement. The proposed agreement is not yet made. An agreement is only made when it is approved by a majority of relevant employees who cast a valid vote, as set out in section 182 of the Act. One cannot exclude the possibility that employees will reject the offer put to them, necessitating a return to the bargaining table. In other words, more than the existing ‘in-principle’ agreement may be required from the CEPU before agreement is finally reached.

[42] The CEPU has committed, through the Terms of Reference, to positively explaining the benefits of the agreement to its members, supporting the vote and refraining from conduct that may negatively affect a ‘yes’ vote. It has communicated with members about its ‘in-principle’ support for the 2021 Agreement and set out in that communication what it sees as the key outcomes of the bargain for them.

[43] However, the CEPU’s Tasmanian Branch is not a signatory to the Terms of Reference and does not agree with them. Since at least 1 July 2021, its’ position has been at odds with the CEPU’s Communications Division, both in relation to the status of bargaining and the content of the 2021 Agreement. This has placed Australia Post in the predicament of having to contend with a bargaining representative that has come lately to adopt two directly inconsistent positions – one nationally, and one specific to Tasmania. There is no evidence of any effort by the CEPU to resolve the dispute between divisions. It might be inferred that each division is prepared to forge ahead without the other, come what may.

[44] I cannot see how a single bargaining representative can be genuinely trying to reach agreement while simultaneously adopting two separate and competing positions in bargaining for the same proposed agreement, each purportedly on behalf of the employees it represents. The CEPU is one entity and it represents one group of employees who will be covered by the proposed agreement. This includes all members who are employed by Australia Post in the classifications in the 2017 Agreement (other than those who have appointed another bargaining representative in writing and have not revoked that appointment). Its status as bargaining representative operates regardless of the division to which its members are attached under the CEPU Rules. Yet the CEPU is acting as if it is two separate entities, one with outstanding claims that must be met for agreement to be reached and one with none. At the same time as the CEPU is canvassing members in Tasmania about the prospect of protected industrial action in relation to the 2021 Agreement, it is appealing to its membership more broadly to support the 2021 Agreement. It is a perplexing development, not only for Australia Post but also one would think for at least its Tasmanian employees.

[45] While I am satisfied that the CEPU has been genuinely trying to reach agreement with Australia Post, I am not satisfied the same can be said for whether it is now genuinely trying to reach agreement. The Tasmanian Branch remains steadfast in its opposition to the 2021 Agreement despite the CEPU’s agreement ‘in-principle’ for the 2021 Agreement and despite the Terms of Reference that meet, at least in part, one of its key claims. Yet at the time the hearing began, no steps had been taken by the Tasmanian Branch toward articulating or advancing its separate, or outstanding claims, other than by this application. This lack of action is not explained, including by any reason related the COVID-19 pandemic.

[46] I have no direct evidence from the CEPU’s Communications Division about its position in relation to the protected action ballot order. I do not know whether or how the CEPU proposes to resolve what seems to be a divisional dispute. These gaps, together with the actions and omissions of the Tasmanian Branch, are sufficient to create doubt about the genuineness of the effort now being made by the CEPU, to reach agreement with Australia Post. It seems likely that the CEPU’s Communications Division remains committed to its position of in-principle support given the timing of its acceptance of the 2021 Agreement and Terms of Reference, and its subsequent efforts to communicate with members about an impending vote to approve the 2021 Agreement. But the same cannot be said for the Tasmanian Branch.

[47] To the extent that the application might be said to relate to a proposed agreement that is not the 2021 Agreement (which I have already found is not the case), I would not be satisfied that the CEPU has been, or is, genuinely trying to reach agreement. This is because aside from this application, the CEPU has not made any proposal for an agreement with Australia Post that will address the specific concerns of employees in Tasmania. It has not articulated any claims that might form the basis of such an agreement, although it says it intends to do so. On 8 July 2021, the Tasmanian Branch clarified that the claims it had made to Australia Post on behalf of its members were those incorporated into the national log of claims and discussed in bargaining meetings. There has been no bargaining, or attempts to bargain, by the Tasmanian Branch in relation to any separate agreement with Australia Post. If it has taken any steps in this regard, it is only through this application. To my mind, any such application would be premature.

[48] In the circumstances, I am not satisfied that the CEPU is genuinely trying to reach agreement with Australia Post in relation to the proposed 2021 Agreement.

Can a protected action ballot order apply to only part of a group of employees represented by a particular bargaining representative?

[49] Section 437(3) of the Act requires an application for a protected action ballot order to specify the group or groups of employees who are to be balloted. The specified group is taken, under section 437(5) of the Act, to include only certain employees – those who will be covered by the proposed agreement and who are represented by an applicant bargaining representative or who are their own bargaining representatives as well as members of the applicant union.

[50] I accept that one of the objects of the Act, drawn from sections 3 and 436, is to ensure that protected industrial action is authorised by a fair and democratic process. It sets out to achieve this object through the detailed provisions dealing with protected action ballot orders in Division 8 of Part 3-3. These deal with a range of matters including who can apply for the orders and when, what the Commission must do if an application is made, and the process for conduct of a ballot – including who is eligible to be on the roll of voters, who may vote and how the results must be made known.

[51] There is no reason to read into section 437(3), or any other section of the Act, a requirement that the group or groups of employees specified in an application for a protected action ballot order must include all employees who are represented by the applicant in relation to the proposed agreement. Section 437(5) is a limiting provision, not one of expansion. It prevents a bargaining representative from seeking an order that extends to employees they do not, or are not entitled to, represent (except in the case of union members who are acting as self-represented bargaining representatives).

[52] The choice of group that must be specified in accordance with section 437(3) is a choice for the applicant to make. It may be a single group, consisting of all the employees they represent. It may be the two groups that two bargaining representatives, acting jointly, are seeking to ballot. But it may also be another group of groups of employees specified in the application. So much is clear from the use of the words “the group or groups of employees who are to be balloted” in section 437(3)(a). In the case of a dispute about scope, for example, employees who are excluded from the scope of a proposed agreement might wish to engage in protected industrial action in support of their claim for inclusion, even though they are not the only employees represented by a particular bargaining representative. Subject of course to there being a notification time, there is no indication in the Act that an application for a protected action ballot order could not be made on their behalf alone. Similarly, where a particular issue in bargaining of relevance only to part of a group of employees arose, there seems to be no reason why the smaller group should be unable to seek authorisation to take protected industrial action in a way that limits its impact to those it most affects.

[53] The selection of a particular group as a means of undermining bargaining or manipulating what is intended to be a simple, fair and democratic process might mean that an applicant has difficulty persuading the Commission that they are genuinely trying to reach agreement with the employer of the chosen group. As always, it will depend on the particular facts and circumstances of the case.

[54] For these reasons, neither the text nor the scheme of the Act prohibits an application for a protected action ballot order that will cover only part of a group of employees who are represented in bargaining by a particular bargaining representative.

Disposition

[55] As I am not satisfied in the circumstances that the CEPU is genuinely trying to reach agreement with Australia Post, the application is dismissed.

COMMISSIONER

Appearances:

E White of Counsel instructed by Hall Payne Lawyers for the Applicant.
H Dixon SC of Counsel and A Pollock of Counsel instructed by Corrs Chambers Westgarth for the Respondent.

Hearing details:

2021.
Melbourne (video hearing):
July 21, 26.

Printed by authority of the Commonwealth Government Printer

<PR732487>

 1   Registered Rules of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“CEPU Rules”), 6.1.4.

 2   Fair Work Act 2009 (Cth), s. 12, “employee organisation” and “organisation”.

 3   Total Marine Services Pty Ltd v Maritime Union of Australia[2009] FWAFB 368; (2009) 189 IR 407 at [32]-[33]; Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU); The Australian Workers' Union (AWU)[2015] FWCFB 210 at [34]-[35].

 4   CEPU Rules, r. 7.

 5   CEPU Rules, r.18.1.

 6   CEPU Rules”), r. 6.

 7   CEPU Rules, Section B, r. 11.2.

 8   CEPU Rules, r.18.2 and Section B, r.19.1.

 9 [2015] FCAFC 23 at [95] – [96].

 10   Fair Work Act 2009 (Cth), s.453.

 11   Transcript, 21 July 2021, PN219.

 12 [2015] FCAFC 23 at [128].

 13 The CEPU is registered as an employee organisation under section 26 of the RO Act and included on the register of organisations kept by the Commission under section 13 of the RO Act.

 14   Employees of Australia Post are covered by the CEPU Rules, including by rules 2.5, 2.7, 2.8 and 2.9 and the industry rule at 2.22.1.

 15  See, for example, Total Marine Services Pty Ltd v Maritime Union of Australia[2009] FWAFB 368; (2009) 189 IR 407 at [32]-[33]; Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU); The Australian Workers' Union (AWU)[2015] FWCFB 210 at [34]-[35].