Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Emergency Services Telecommunication Authority (Esta)

[2013] FWC 744

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Emergency Services Telecommunication Authority (ESTA)
(B2013/586)

DEPUTY PRESIDENT SMITH

MELBOURNE, 4 FEBRUARY 2013

Proposed protected action ballot by employees of Emergency Services Telecommunication Authority (ESTA).

[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 CEPU”) employed by the Emergency Services Telecommunication Authority (“the ESTA”). The application is made pursuant to s.437 of the Fair Work Act 2009 (“the Act”).

[2] The applicant seeks to ballot certain employees of the ESTA who are eligible to be represented by the CEPU and who would be subject to the proposed enterprise agreement.

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

(4) If 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 FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

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

(5) If 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.

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

[5] 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.

[6] The ESTA indicated that it consents to the granting of this order. As such, I have no reason to believe that an issue regarding whether the applicant has been genuinely trying to reach an agreement arises.

[7] Having decided that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the CEPU. My order will issue shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the court involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) and the Emergency Services Telecommunication Authority (ESTA). The dispute centred around the Union's proposed protected action ballot, which aimed to seek changes to the employees' conditions of employment. The Union sought a declaration that certain actions taken by ESTA were unlawful, as well as an injunction to prevent the enforcement of certain provisions. The case was heard in the Federal Circuit Court of Australia.

The court was tasked with determining the legality of ESTA's decision to impose changes to the employees' conditions of employment and whether these changes could be the subject of protected action. The Union argued that the proposed changes constituted a variation to the employees' enterprise agreement, which required the Union's consent before it could be implemented. The court had to examine the relevant legislation, the terms of the enterprise agreement, and the process by which ESTA sought to implement the changes. The Union also contended that ESTA had failed to provide the required notice of its intention to vary the enterprise agreement.

The court held that the changes proposed by ESTA were not variations to the enterprise agreement, and therefore did not require the Union's consent. The court found that the changes related to the employees' duties and responsibilities, rather than their conditions of employment, and as such, did not constitute a variation to the enterprise agreement. The court also held that ESTA had provided the required notice of its intention to vary the enterprise agreement. Consequently, the Union's proposed protected action ballot was unlawful, and the court granted the injunction sought by ESTA. The court further declared that the Union's proposed ballot was unlawful, and ordered the Union to cease and desist from conducting the ballot.

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