Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v John Goss Projects

[2013] FWC 3918

[2013] FWC 3918

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
John Goss Projects
(B2013/142)

COMMISSIONER BULL SYDNEY, 19 JUNE 2013

Variation to protected action ballot order.

[1] On 30 May 2013, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made an application to the Fair Work Commission (FWC) pursuant to s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of John Goss Projects (the Respondent). The Respondent did not oppose the application and a protected action ballot order was issued on 31 May 2013 (PR537435).

[2] The protected action ballot order reflected the CEPU’s request that the protected action ballot agent be the Australian Electoral Commission (AEC). Clause 4 stated that the date by which the voting is to close is 20 working days from the date of the order.

[3] On 14 June 2013, the AEC sent an email to my Chambers seeking a variation to the protected action ballot order issued on 31 May 2013.

[4] The AEC sought the variation under s.447(2) of the Act. Pursuant to s.447(2) the protected action ballot agent for a protected action ballot may apply to FWC to vary the protected action ballot order to change the date by which voting in the ballot closes.

[5] Pursuant to SCHEDULE 1 - TABLE OF FORMS CONTAINED IN SCHEDULE 2 of the Fair Work Rules 2009 (the FW Rules) the Commission requested that the AEC complete and return a Form F35 - Application for variation of a protected action ballot order (Form F35).

[6] My Chambers received a completed from the AEC on 17 June 2013.

[7] Form F35 requires the application to be served on the employer of employees to be balloted in accordance with the service requirements under Rule 9 and 10 of the FW Rules. The Form F35 that was sent to my Chambers did not appear to have been served in accordance with the FW Rules. Pursuant to Rule 4, I have decided to dispense with compliance of this requirement as the employer was provided with a copy of the Form F35 by my Chambers on 18 June 2013.

[8] The AEC seeks that clause 4 of the protected action ballot order be varied to remove the words “20 working days from the date of the order” and insert the words “12 July 2013”. This was requested on the basis that the current date in the protected action ballot order by which the ballot is to be conducted by would not be achieved within 20 days from the date of the Order under its proposed timetable.

[9] My Associate wrote to the CEPU and John Goss Projects to seek their views with respect to the variation sought by the AEC on 18 June 2013.

[10] The CEPU sent correspondence to my Chambers on 18 June 2013, opposing the variation sought by the AEC. The CEPU stated in its correspondence that any delay to the ballot could adversely affect the members who would be covered by the proposed enterprise bargaining agreement, as there is uncertainty concerning the ongoing job security of employees.

[11] The CEPU outlined discussions it has had with the AEC with respect to the way in which the ballot is to be carried out. The CEPU states it had previously told the AEC that its preference was to hold an attendance ballot of 12 members at the Lend Lease jobsite at the corner of Castlereagh Street and Pitt Street in Sydney, as this is a central location and within sufficient time to allow the AEC to promptly conduct the ballot. However, the AEC maintained its position that a postal vote would be most appropriate.

[12] Following these discussions the AEC informed the CEPU that it will hold a postal vote between 20 June 2013 and 8 July 2013.

[13] The CEPU submit there is no need for the AEC to continue to seek the variation since the ballot will be held within the proposed period in clause four of the protected action ballot order issued on 31 May 2013.

[14] Pursuant to the protected action ballot order issued by the Commission the date by which the voting is to close is 20 working days from the date of the order, being 31 May 2013. The 20 working days would end on 1 July 2013. The agreed timetable for the postal ballot to be carried out would be outside of the 20 working days by which the voting is to close under the protected action ballot order.

[15] No correspondence was received from John Goss Projects.

[16] The AEC responded to the CEPU’s correspondence on 19 June 2013. The AEC submits that it considered the CEPU request for it to conduct an attendance ballot but had concerns about all eligible voters having access to voting if it was undertaken as an attendance ballot.

[17] Pursuant to s.451(2) of the Act, the AEC as the protected action ballot agent must, in consultation with the applicant and the employer develop a timetable for the conduct of the protected action ballot and determine the voting method, or methods to be used for the ballot. In Construction, Forestry, Mining and Energy Union v Grocon Pty Ltd and others 1 it was held that the ultimate decision with respect to developing the timetable and voting method to be used for the purposes of a protected action ballot order is a matter for the protected action ballot agent. At paragraphs 26 to 27 of this decision, his Honour, Senior Deputy President Watson states:

“Section 451 of the Act sets out provisions in relation to the timetable for a protected action ballot, in respect of the AEC, when it is the Ballot Agent, or an alternate Ballot Agent, when Fair Work Australia has directed it to comply with s.451. Section 451(2) of the Act states:

“(2) As soon as practicable after receiving a copy of the protected action ballot order, the protected action ballot agent must, in consultation with each applicant for the order and the employer of the employees who are to be balloted:

(a) develop a timetable for the conduct of the protected action ballot; and

(b) determine the voting method, or methods, to be used for the ballot.”

The determination of the voting method, or methods, to be used for the ballot is a matter for the AEC when it is the Ballot Agent and is a matter for a non-AEC Ballot Agent, when they have been directed by Fair Work Australia to comply with s.451 of the Act (rather than directed to apply a particular voting method).

It follows that if the AEC is the Ballot Agent specified in a ballot order, the voting method is a matter for the AEC. Fair Work Australia is not empowered to direct it as to the voting method, or methods, to be used.”

[18] The AEC has determined that the ballot is to be undertaken as a postal ballot and has advised the parties of its proposal. The AEC has outlined its concerns with respect to a postal vote stating that it would be unable to complete the ballot within the timeframe provided in the original protected action ballot order issued on 31 May 2013.

[19] The AEC submit that they have provided to both parties a proposal to conduct the postal ballot between 20 June 2013 and 8 July 2013.

[20] The AEC state that the reason a variation has been sought to 12 July 2013 is to cover any unexpected issues that may delay the commencement of the ballot and to eliminate the need for any further application being submitted to the Commission, however, the conduct of the ballot will be unaffected by the proposed date of 12 July 2013 and will continue with a view to concluding voting on 8 July 2013. The AEC stated in its response that this approach is consistent with “the standard practice of having 20 working days on ballot orders but usually not requiring the full period to conduct a ballot, even if it is a postal ballot”.

[21] Pursuant to s.447(4) of the Act if an application is made by the protected action ballot agent to change the date by which voting in the ballot closes FWC may vary the protected action ballot order.

[22] Having considered the request by the AEC and the response of the CEPU, I can find no reason not to vary the order as requested. A failure to vary the Order will result on the proposed AEC’s timetable a breach of the order, which is best avoided.

[23] I will vary clause 4 of the protected action ballot order issued on 31 May 2013 by deleting “20 working days from the date of this order” and inserting the words “12 July 2013”.

[24] An Order to this effect is issued in conjunction with this decision (PR537971).

COMMISSIONER

 1   [2012] FWA 1716

Printed by authority of the Commonwealth Government Printer

<Price code A, PR537978>