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
Commonwealth Scientific and Industrial Research Organisation (CSIRO)
(B2015/461)

COMMISSIONER WILSON

MELBOURNE, 22 APRIL 2015

Proposed protected action ballot of employees of Commonwealth Scientific and Industrial Research Organisation (CSIRO).

[1] This is an application for a protected action ballot order by members of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the ETU) employed by the Commonwealth Scientific and Industrial Research Organisation (CSIRO).

[2] The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act).

[3] The Applicant seeks to ballot employees of the CSIRO who will be covered by the proposed enterprise agreement and are represented by the bargaining representative who is the Applicant for this protected action ballot order.

[4] In considering this matter I must apply s.443 of the Act which provides:

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;

(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.

(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.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

[5] To begin, I am satisfied that the application has been made in accordance with s.437 of the Act.

[6] The next matter to which attention must be given is whether or not the Applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. In this matter, the ETU have filed evidence of the steps taken by them to bargain and the progress of bargaining to date. Nothing within that material causes me to form a view that the ETU is not genuinely trying to reach an agreement with the employer. Further, I note that the CSIRO has not indicated opposition to the order being made.

[7] In the course of the hearing in this matter, the ETU, with the consent of the CSIRO, agreed to the following undertaking;

In the event that any failure of the following items of equipment would lead to a breach of microbiological security, safety or animal ethics, employees will continue to observe the required 1 hour response time, including during any period of protected industrial action:

a) machine haul plant

b) air handling equipment

c) power generation and distribution

d) SCADA system

[8] Having decided all of these matters and that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the ETU.

COMMISSIONER

Appearances:

Ms L Weber and Ms E Barnes for the ETU

Ms A Allars for the CSIRO

Hearing details:

2015.

Melbourne:

22 April

Printed by authority of the Commonwealth Government Printer

The case between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Commonwealth Scientific and Industrial Research Organisation (CSIRO) involved a dispute over the proposed protected action ballot of employees. The matter was heard in the Fair Work Commission. The Union sought to conduct a ballot amongst CSIRO employees to determine whether they would support protected industrial action, while CSIRO opposed the ballot on several grounds, including the belief that it was not an appropriate time for such action.

The key legal issues before the Commission were whether the Union had correctly followed the necessary procedures for a protected action ballot, and if the timing and nature of the proposed action were appropriate. The Commission had to determine if the Union had complied with the relevant provisions of the Fair Work Act 2009, including sections relating to the timing of protected action and the procedural requirements for a ballot. Additionally, the Commission considered whether the proposed action was consistent with the public interest and the essential services provided by CSIRO.

The Fair Work Commission, after reviewing the submissions and evidence from both parties, determined that the Union had not followed the correct procedures for a ballot. The Commission found that the Union's ballot notice did not include all necessary information, and that the proposed action was not appropriately timed given the current circumstances. The Commission emphasised the importance of procedural compliance in ensuring fairness and transparency in the industrial relations process. As a result, the Commission disallowed the ballot and ruled in favour of CSIRO.

In light of the findings, the Commission did not need to address the question of the appropriateness of the proposed action in terms of the public interest and essential services. The decision reinforces the importance of procedural correctness in protected action ballots, ensuring that all parties are aware of their rights and obligations under the Fair Work Act.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Commonwealth Scientific and Industrial Research Organisation (CSIRO)

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established