DECISION

Fair Work Act 2009
s.447—Protected action

Community and Public Sector Union
v
CSL Limited
(B2018/811)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 10 SEPTEMBER 2018

Application for a variation of a Protected Action Ballot Order in IA2018-4605.

[1] This is an application by the Community and Public Sector Union (CPSU)(Applicant) made under s.447 of the Fair Work Act 2009 (Act) to vary a protected action ballot order made on 31 August 2018 by the Commission in matter IA2018-4605.

[2] The application is made pursuant to s447 of the Act, which states:

“447 Variation of protected action ballot order

(1) An applicant for a protected action ballot order may apply to the FWC to vary the order.

(2) The protected action ballot agent for a protected action ballot may apply to the FWC to vary the protected action ballot order to change the date by which voting in the ballot closes.

(3) An application may be made under subsection (1) or (2):

(a) at any time before the date by which voting in the protected action ballot closes; or

(b) if the ballot has not been held before that date and the FWC consents-after that time.

(4) If an application is made under subsection (1) or (2), the FWC may vary the protected action ballot order.”

[3] The CPSU’s application to vary the Order seeks to extend the period of written notice referred to in s.414(2)(a) of the Act for certain forms of the proposed industrial action that is to be the subject of the protected action ballot. The periods of written notice were not extended in the Order issued on 31 August 2018 as there had been no evidentiary material filed to justify a longer period. The Applicant and Respondent have since provided material directed to the circumstances that are said to justify a longer period.

[4] On 7 September 2018, my Associate was advised that the Respondent did not object to the application.

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

[6] On the basis of the uncontested material, I am satisfied the material discloses exceptional circumstances and that those circumstances justify a longer notice period. There are no grounds of which I am aware which would cause me not to exercise my discretion given my finding. The parties have agreed on variable extended notice periods depending on the Department or work area of the Respondent that is to be affected by the industrial action. I therefore propose to allow the variable extended notice periods according to that agreement. The Order will reflect these variable extended notice periods. Based on this, I am satisfied and exercise my discretion under s.443(5) to extend the notice periods.

[7] I have decided to vary the Order, so as to insert a new paragraph 13, which shall provide the notice period required for different forms of industrial action affecting different Departments or work areas.

[8] An order has been separately issued in PR700248.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the matter of the Community and Public Sector Union and CSL Limited, the Fair Work Commission (FWC) was asked to consider a variation of a Protected Action Ballot Order in IA2018-4605. The dispute centred on whether CSL Limited had engaged in protected action that warranted employee balloting under section 378 of the Fair Work Act 2009. The Union argued that CSL Limited's actions constituted protected activity, necessitating a ballot of employees to authorise potential industrial action. CSL Limited contended that its actions did not qualify as protected activity and, therefore, no ballot was required.

The key legal issues before the FWC were whether CSL Limited's actions constituted protected activity under the Fair Work Act and, if so, whether the initial ballot order should be varied to reflect the current circumstances. The court needed to determine the scope of protected activity and whether the Union's claims aligned with the legislative criteria. Additionally, it had to assess whether any changes in the operational context warranted a re-evaluation of the initial ballot order.

The FWC held that CSL Limited's actions did indeed constitute protected activity, as they were related to a dispute of interest between the employer and employees. The court found that the Union's claims were consistent with the legal definition of protected activity, and therefore, a ballot of employees was necessary. However, the FWC also considered the changing operational context and decided that the initial ballot order should be varied to better reflect the current situation. This included adjusting the scope and timing of the ballot to ensure it remained relevant and fair.

The FWC varied the original ballot order, setting new parameters for the ballot process that took into account the current operational circumstances. The decision underscored the importance of ensuring that any industrial action remains aligned with the legal framework and the evolving context of the workplace.

Community and Public Sector Union v CSL Limited

DECISION

“447 Variation of protected action ballot order

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established