Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Solutions Pty Limited
[2024] FWC 803
•28 MARCH 2024
| [2024] FWC 803 |
| FAIR WORK COMMISSION |
| 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
UGL Solutions Pty Limited
(B2024/262)
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 28 MARCH 2024 |
Proposed protected action ballot of employees of UGL Pty Limited
This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made under s 437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of UGL Pty Limited (UGL).
On 26 March 2024, UGL advised the Commission that UGL does not object to the application but was seeking the following amendments to the draft order sought by the CEPU:
Removal of question 4 of the proposed ballot questions which states:
In support of reaching an enterprise agreement with your employer, do you endorse the taking of protected industrial action against your employer, which may involve taking separately, consecutively and/or concurrently any or all of the actions set out below:
…
4. An unlimited number of periodic or indefinite partial work bans?
Insertion of a safety commitment by way of limiting the types of proposed industrial action to ensure critical safety and health requirements can be met during periods of action.
Narrowing the information to be provided to the ballot agent to employees’ first name, surname, mobile phone number and email address.
In relation to question 4, UGL submitted that it does not describe the nature of the proposed action to be authorised sufficiently that employees can make an informed choice on whether to approve the action or not. The CEPU submitted that it does not agree with UGL’s position, but as a matter of expediency it does not press question 4.
In relation to UGL’s requirement that a safety commitment be included in the ballot questions, the CEPU submitted that there was no such requirement in s 443(3) of the Act.
In relation to UGL’s request that the information provided to the ballot agent be limited, UGL submitted that it objects to the amount of confidential employee information being requested at clause 6 of the draft order, which is in excess of what is required to conduct the proposed e-ballot. UGL further submitted that in accordance with the principles of the Privacy Act 1988 (Cth) and the Australian Privacy Principles, confidential information should only be disclosed to the extent necessary. The CEPU submitted that it does not object to the changes sought by UGL with respect to the information to be provided to the ballot agent. However given the draft order is in the standard terms, the CEPU submitted that the Commission must seek the views of the ballot agent before making this change. The ballot agent Vero Engagement and Voting Solutions Pty Limited (Vero) advised the Commission that it needed as much common information as possible, to match the employees/members so that it can determine the final voting list as efficiently and accurately as possible. If less information is provided it could impede the accuracy of the matching and therefore the ballot. Vero said it prides itself on data security and privacy and all information provided to Vero is only used for the purposes of running the ballot in compliance with the Ballot Order and that Vero takes the necessary steps to remove all data from both its online and local systems once voting has been completed.
Consideration
Requirement for safety commitment
Section 437(3) sets out the matters that an application for a protected ballot order must specify which are:
(a) the group or groups of employees who are to be balloted; and
(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action; and
(c) the name of the person or entity that the applicant wishes to be the protected action ballot agent for the protected action ballot.
Section 443 sets out the circumstances in which the Commission must make a protected action ballot and provides as follows:
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;
(e) the person or entity that the FWC decides, under subsection 444(1A), is to be the protected action ballot agent for the protected action ballot;
(f) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.
(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.
(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 or 120 hours (whichever is applicable), 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.
Section 443(3) provides the matters which the protected action ballot order is required to specify including at s 443(3)(c) the questions which are to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
In National Tertiary Education Industry Union v Curtin University (NTEU),[1] the Full Bench said:
In summary, therefore, an application for a protected action ballot order will comply with the requirement in 437(3)(b), and thus will have been “made under section 437” for the purpose of s 443(1)(a), if it specifies a question or questions, capable of being answered “yes” or “no” by the employees participating in the ballot, which propose(s) action of an identified character, kind or sort capable of constituting industrial action within the meaning of s 19(1). A question which meets these requirements can be expressed and understood in ordinary industrial English, and there is no requirement for legalism, technicality or pedantry in the drafting or analysis of such questions. In our view, the proposition that, beyond these requirements, the questions must be interrogated to identify ambiguity in aid of enabling “informed consent” goes beyond the text of the provision and constitutes a gloss on the statute. The concept of “informed consent” is inapposite to a protected action ballot since, unlike a vote to approve an enterprise agreement, there is no requirement for genuine agreement and those voting are not bound by the result (in the sense there is no requirement for any employee to actually take industrial action which has been authorised by a ballot and for which a s 414(1) notice has been issued). We therefore affirm that paragraph [19] of the decision in John Holland states the correct approach to the construction and application of s 437(3)(b). The statements of principle in FreshExchange are not consistent with that approach and should not be followed.[2]
Apart from question 4, which is not pressed by the CEPU, UGL does not claim that the questions in the draft ballot order sought by the CEPU are either incapable of being answered “yes” or “no” by the employees participating in the ballot or propose action which does not constitute industrial action. Having regard to the Full Bench’s decision in NTEU, there is no basis for me to conclude that the application made by the CEPU does not comply with s 437(3). If I am satisfied that the CEPU has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted as required by s 443(1)(b) which is dealt with below, I am required to make the protected action ballot order under s 443. Section 443 does not permit me to insert a safety commitment into the order without the CEPU’s consent. Further I do not have discretion to refuse to make the order on the grounds that the CEPU does not agree to the insertion of the safety commitment in the ballot questions. In the circumstances, I decline to amend the proposed order to include the safety commitment sought by UGL.
Information to be provided to the ballot agent
UGL claims that the confidential employee information requested at clause 6 of the draft order is in excess of what is required to conduct the proposed e-ballot. In making this submission, UGL does not explain the basis for this view and has not provided evidence in support of this submission.
The ballot is to be conducted by Vero who is an approved eligible protected action ballot agent under s 468A(1)(b) of the Act. In considering Vero’s application for approval,[3] the Commission was required under s 468A(2)(a) to be satisfied that Vero is a fit and proper person to be an eligible protected action ballot agent. In determining this matter, Deputy President Hampton made the following observations:[4]
[21] As to the assessment of the fit and proper person requirement in this case, the application was accompanied by a Declaration from Gregory Mitchell, Director of Vero Voting. I observe that Vero Voting has been found by the Commission to be a fit and proper person to conduct protected action ballots on over 25 occasions and I can find no evidence of an adverse finding in that regard. The material now before the Commission also includes confirmation of extensive independent ballot and other professional experience of Vero Voting and Mr Mitchell. Further, the evidence reveals that Mr Mitchell, the other Director of the business, and all the individuals involved in the conduct of the ballots are and will be fit and proper persons for that purpose. Each also holds police and other clearances.
[22] The evidence provided on behalf of Vero Voting, and the earlier findings of the Commission, also confirms to my satisfaction general consistency with the considerations set out earlier. This includes details about the nature of the information and other systems to be used for the ballots of various types, compliance with the Privacy Act 1988 and related principles, and steps that will be taken to ensure that the ballots are conducted fairly, democratically, and expeditiously by fit and proper individuals. This involves, amongst other matters, the nature of the data storage systems and associated practices, the induction and training of staff, and the independence of the organisation and those systems from the parties who are likely to be involved in future PABOs. [citations omitted]
In response to the issues raised by UGL, Vero has said that if less information were to be provided it could impede the accuracy of the matching and therefore the ballot. In his decision, Deputy President Hampton noted that Vero and its Director Mr Gregory Mitchell have extensive independent ballot and other professional experience.[5] I do not have any evidence before me that UGL or any of its personnel have such experience. In the circumstances, I accept the Vero has the requisite experience and expertise to express views and opinions in relation to the information required to conduct a protected action ballot. Therefore, I accept the submissions of Vero that the information sought in the proposed ballot order is necessary to ensure the accuracy and integrity of the ballot.
In relation to any concerns which UGL may have about its employees’ privacy, I note that in determining that Vero is a fit and proper person to be an eligible protected action ballot agent, Deputy President Hampton had regard to evidence that includes details about the nature of the information and other systems to be used for the ballots of various types and compliance with the Privacy Act 1988 and related principles. Further I note that Vero has restated its commitment to ensuring privacy and data security for the purpose of these proceedings. In all of the circumstances, there is no basis for me to amend clause 6 of the draft order in the terms sought by UGL and I decline to do so.
Section 443 requirements
On the basis of the material before me, including the declaration of Mr Lawrence Duff, CEPU Organiser, setting out the steps taken by the CEPU in bargaining with UGL and that it has been, and is, genuinely trying to reach agreement with UGL, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s 443(1) of the Act have been met.
I have excluded question 4 from the ballot questions given that the CEPU does not press this question.
For the purposes of s 443(3)(c) of the Act, I have determined that the date by which voting is to close is 15 April 2024,[6] as sought in the application. This also establishes the ballot period for the purpose of s 448A(2) of the Act.
An Order has been separately issued in PR772858.
This matter will shortly be listed for a compulsory conciliation conference pursuant to s 448A of the FW Act and an Order issued requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.
DEPUTY PRESIDENT
[1] [2022] FWCFB 204.
[2] Ibid, [53].
[3] Application by Vero Engagement and Voting Solutions Pty Limited (Vero Voting) [2023] FWC 1531
[4] Ibid, [21].
[5] Ibid.
[6] This is 10 working days from the date of the Order as sought in the application.
Printed by authority of the Commonwealth Government Printer
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