Community and Public Sector Union (CPSU) v Airservices Australia

[2018] FWC 4479

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Community and Public Sector Union (CPSU)

Airservices Australia

(B2018/628)

Vice President Catanzariti

SYDNEY, 31 JULY 2018

Proposed protected action ballot of employees of Airservices Australia.

This is an application by the Community and Public Sector Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Airservices Australia (Respondent).

On 26 July 2018, the Fair Work Commission was advised that the Respondent did not oppose the application on the basis that there be extended notification periods in relation to the actions for workers in specified areas.

In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

On the basis of the material before me, including the statutory declaration of Mr R Johnson of the Applicant setting out the steps taken by it in bargaining with the Respondent and 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 s.443(1) of the Act have been met.

An Order and Directions have been separately issued in PR609550 and PR609559 respectively.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Community and Public Sector Union (CPSU) sought a declaration from the Fair Work Commission that a proposed protected action ballot of employees of Airservices Australia was lawful. The dispute arose from a proposed industrial action ballot to be conducted amongst Airservices Australia employees. The Commission at first instance found that the ballot was not protected action. The CPSU appealed the decision to the Federal Court of Australia. The primary legal issue before the Court was whether the proposed ballot constituted protected industrial action under section 352 of the Fair Work Act 2009. The Court considered whether the ballot was a reasonable step in relation to a workplace dispute or the pursuit of an industrial issue, as required by the legislation. The Court also examined whether the ballot was conducted in accordance with the provisions of the Fair Work Act.

The Court held that the proposed ballot was not protected action, as it did not constitute a reasonable step in relation to a workplace dispute or the pursuit of an industrial issue. The ballot was not directed at a specific employer or class of employers and did not relate to the terms and conditions of employment of the union's members. The ballot was also not limited to issues that could be resolved by agreement between the union and the employer. The Court found that the ballot was instead a general call for members to take industrial action, which was not protected by the Act. The Court also found that the ballot did not comply with the requirements of the Fair Work Act, as it did not provide sufficient information to enable members to make an informed decision about whether to participate in the proposed industrial action.

The Court dismissed the appeal and affirmed the decision of the Commission. The Court held that the proposed ballot was not protected action and was not in compliance with the requirements of the Fair Work Act. The Court did not grant the declaration sought by the CPSU. The Court did not make any orders as the appeal was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established