Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Engie Fire Services Australia Pty Limited

[2021] FWC 4791

[2021] FWC 4791

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 437 - Application for a protected action ballot order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
ENGIE Fire Services Australia Pty Limited
(B2021/615)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 5 AUGUST 2021

Proposed protected action ballot of employees of ENGIE Fire Services Australia Pty Limited

[1] This is an application lodged on 2 August 2021 by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of ENGIE Fire Services Australia Pty Limited (the Respondent).

[2] Upon lodgement, the matter was initially allocated to Deputy President Clancy to ascertain whether the application was objected to.

[3] The Respondent advised on 3 August 2021 that it did not oppose the application with the exception of question 8 in the draft order. 1

[4] This limited objection was the subject of communication between the Applicant, the Respondent and the Commission on 3 August 2021. When those discussions did not resolve the objection, the matter was allocated to me for determination.

[5] I conducted a directions hearing on 5 August 2021 to explore whether the matter could be resolved or otherwise to put in place steps for determination of the objection.

[6] Arising from the hearing, agreement was reached on the application and in particular on an amended form for question 8.

[7] In its original form, question 8 proposed a ballot on the following, and seemingly unremarkable, proposition concerning proposed industrial action:

“An unlimited number of indefinite or periodic bans on the use of mobile phones?”

[8] In this matter, the Respondent raised issue with question 8 on the ground that a ban on mobile phones, if voted up and implemented, may constitute a health and safety risk particularly for employees working in an emergency circumstance.

[9] For its part, the Applicant was empathetic to concerns about workplace safety and the role mobile phones can play as a safety tool, but was circumspect about confining the rights of employees to determine the form of industrial action they may wish to take.

[10] Ultimately consent was reached to question 8 in the following terms:

“An unlimited number of indefinite or periodic bans on the use of mobile phones except where the use of the phone is required for safety purposes?”

[11] The parties are to be commended for achieving this resolution.

[12] Given that the issue may be of more general interest beyond the confines of this application, it is appropriate to make three observations on the nature of the Commission’s task when dealing with section 437 applications.

[13] Firstly, the scheme of the FW Act does not provide the Commission, and much-less so an employer, with a general discretion to determine whether a question proposed is reasonable or appropriate. The Commission must be satisfied that the question concerns “industrial action” 2 and, within reason, that it is stated with sufficient clarity so as to enable an employee to make an informed choice about whether to approve the nature of the industrial action identified3. Beyond that, and provided other formal requirements are met, the adequacy of a question is not a basis for refusing an application.

[14] Secondly, section 415 of the FW Act does not confer immunity for protected action that involves or is likely to involve “personal injury”. Hence there is some in-built statutory safeguard that has the effect of qualifying the protected nature of industrial action, irrespective of whether a ballot question (if ordered, voted up and acted upon) gives rise to safety concerns.

[15] Thirdly, the expression “industrial action” in the FW Act does not, on its face, exclude action that might or would result in a breach of occupational health and safety law 4.

[16] A consequence of the aforementioned is that it is not, under the current statutory scheme, open to the Commission to refuse to make a protected action ballot order on an otherwise lawfully made application solely on the basis that a question to be balloted would or would be likely to give rise to a risk to health and safety.

[17] In light of the consent position on question 8 I proceed to determine the application.

[18] On the basis of the material before me, including the statutory declaration of Ms Erin Hennessy of the Applicant lodged 2 August 2021, setting out the steps taken by it in bargaining with the Respondent and confirming that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in section 443(1) of the FW Act have been met.

[19] The Applicant sought a ballot period of “20 working days after the order is given” (emphasis added). Current advice from the ballot agent (the Australian Electoral Commission) to the Commission requires a ballot period of thirty (30) working days. Accordingly the Order in this matter will reflect this protocol.

[20] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act and that the requisite formal requirements of the Act have been met in all other respects.

[21] An Order in conformity with the FW Act is being issued in conjunction with this decision. 5

DEPUTY PRESIDENT

Appearances:

Ms E Hennessey, on behalf of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

Mr N Biernat, on behalf of ENGIE Fire Services Australia Pty Limited

Hearing details:

2021
Adelaide (by telephone)
5 August

Printed by authority of the Commonwealth Government Printer

<PR732516>

 1   Email from Respondent to Chambers – Clancy DP 3 August 2021

 2   Section 408 and section 19

 3 Section 437(3); John Holland Pty Ltd v AMWU and AWU [2010 FWAFB 526 at [19]

 4   Skilled Offshore Pty Ltd v AMWU, CEPU and AWU[2015] FWCFB 7339 at [37]

 5   PR732517