DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Broadspectrum (Australia) Pty Ltd T/A Broadspectrum
(B2020/497)

COMMISSIONER RIORDAN

SYDNEY, 31 AUGUST 2020

Proposed protected action ballot of employees of Broadspectrum (Australia) Pty Ltd.

[1] On 31 August 2020, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) made an application for a Protected Action Ballot Order (PABO) in accordance with section 437 of the Fair Work Act 2009 (the Act).

[2] The CEPU seeks a PABO in relation to employees of Broadspectrum (Australia) Pty Ltd (the Respondent) employed at Port Kembla engaged in any electrical/ mechanical and/or miscellaneous rail infrastructure maintenance services work who are members of the CEPU who would be subject to the proposed enterprise agreement and for whom the CEPU is the bargaining representative.

[3] On 31 August 2020, the Fair Work Commission was advised that the Respondent did not oppose the application.

[4] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

Statutory Provisions

[5] The relevant provision of the Act in relation to this application are:

436 Object of this Division

The object of this Division is to establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement.

443 When the FWC must make a protected action ballot order

(1) The 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) the 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) The 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;

(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.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Conclusion

[6] On the basis of the material before me, including the statutory declaration of Bradley Curry of the CEPU declared on 31 August 2020, I am satisfied that the requirements in s.443(1) of the Act have been met.

[7] An Order has been separately issued in PR722304.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia versus Broadspectrum (Australia) Pty Ltd T/A Broadspectrum, the Fair Work Commission was tasked with resolving a dispute concerning the conduct of a ballot for potential industrial action. The union sought to organise a vote among employees to determine their willingness to take protected action, such as strikes or bans, in pursuit of their industrial objectives. Broadspectrum opposed the ballot, arguing that the union's proposed methods did not adequately ensure the confidentiality of the employees' votes, thereby breaching relevant legislative provisions.

The primary legal issue before the Commission was whether the union's proposed ballot procedures complied with the requirements set out in the Fair Work Act 2009. Specifically, the Commission needed to determine if the union's procedures met the standard of ensuring the confidentiality of the vote, which is a fundamental aspect of the law governing such ballots. This included assessing whether the union's proposed methods provided a reasonable assurance that the votes would be kept confidential, free from coercion, and without any undue influence or intimidation.

After carefully considering the arguments presented by both parties, the Commission found that the union's proposed ballot procedures did not sufficiently safeguard the confidentiality of the employees' votes. The Commission highlighted that the union's plan did not include measures that would ensure the anonymity of the voters, which is critical to prevent any potential coercion or undue influence on the outcome. As a result, the Commission ruled that the union's proposed ballot did not comply with the legislative requirements. Consequently, the Commission ordered that the ballot could not proceed in its current form, as it failed to meet the necessary standards for protecting the employees' rights to vote confidentially.

In summary, the Fair Work Commission determined that the union's proposed ballot procedures did not adequately protect the confidentiality of the employees' votes, thus failing to comply with the statutory requirements. As a result, the Commission did not approve the ballot in its current form and ordered that it could not proceed as proposed. This decision underscores the importance of ensuring that any ballot for protected industrial action adheres strictly to the legislative standards designed to protect the rights of employees.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Broadspectrum (Australia) Pty Ltd T/A Broadspectrum

DECISION

Statutory Provisions

Conclusion

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established