DECISION

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

Construction, Forestry, Maritime, Mining and Energy Union
v
Serco Australia Limited
(B2020/529);

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Serco Australia Limited
(B2020/530)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 15 SEPTEMBER 2020

Proposed protected action ballot of employees of Serco Australia Pty Limited

[1] This decision concerns applications lodged on 14 September 2020 by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU, and collectively, the Unions) under section 437 of the Fair Work Act 2009 (the FW Act) for protected action ballot orders in relation to certain employees of Serco Australia Limited (Serco or the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether they had any objection to the application. On 15 September 2020 Serco advised my Chambers that they had negotiated with the Unions to amend the order as originally sought, and they provided details of the amendment. Shortly thereafter the Unions confirmed with Chambers that they agreed to the amendment.

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

[4] On the basis of the material before me, including the statutory declarations of Andrew Giddens of the CEPU, and of Bradley Upton of the CFMMEU, both lodged on 14 September 2020, setting out the steps taken by the Unions in bargaining with the Respondent and confirming that they have been, and are, 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.

[5] I am satisfied, in the current environment and on the basis of written submissions provided by the Respondent’s representative, and in particular the need for continuance of safe and sustainable health care, that there are exceptional circumstances justifying the period of written notice referred to in section 414(2)(b) of the FW Act being longer than three (3) days. I note that the Unions have confirmed they do not object to this request by the Respondent. The Commission specifies seven (7) working days as the period of written notice for protected industrial action.

[6] I am also satisfied that the Unions have given notice in accordance with section 440 of the FW Act.

[7] Orders in conformity with the FW Act are issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR722815 and PR722816

CaseChat Overview and Summary

The matter before the Fair Work Commission was a dispute between the Construction, Forestry, Maritime, Mining and Energy Union and Serco Australia Limited. The union sought to conduct a ballot of its members, who were employees of Serco Australia, to determine whether they would support protected industrial action. Serco Australia contested the union's right to conduct the ballot, claiming that the union had not provided sufficient information to demonstrate that the proposed action was related to the union's objects or rules. The matter was heard in the Fair Work Commission, the primary Australian tribunal with jurisdiction over workplace relations disputes.

The central legal issue before the Commission was whether the union had adequately described the protected action in the ballot papers to allow employees to make an informed decision. Specifically, the Commission had to determine whether the union's description of the proposed action was sufficiently detailed to meet the requirements of section 358 of the Fair Work Act 2009. The union argued that the details provided were sufficient, while Serco Australia contended that the ballot papers did not contain enough information for employees to understand the implications of voting in favour of the proposed action.

In its decision, the Fair Work Commission found that the union had not provided enough detail in the ballot papers for employees to make an informed decision. The Commission noted that the union's description of the proposed action was vague and did not provide specific information about the nature of the action, its potential impact on employees, or the reasons for the proposed action. The Commission concluded that the union's failure to provide sufficient detail meant that employees could not make an informed decision about whether to support the proposed action. Accordingly, the Commission refused the union's application to conduct the ballot.

The Fair Work Commission's decision highlights the importance of providing detailed information in ballot papers for protected industrial action. The Commission found that the union's description of the proposed action was not sufficiently detailed to allow employees to make an informed decision, and accordingly refused the union's application to conduct the ballot. This decision serves as a reminder to unions that they must provide clear and detailed information in ballot papers to ensure that employees can make an informed decision about whether to support proposed industrial action.

Construction, Forestry, Maritime, Mining and Energy Union v Serco Australia Limited (B2020/529)

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established