CPSU, the Community and Public Sector Union v Australian Customs and Border Protection Service

[2011] FWA 5053

[2011] FWA 5053

FAIR WORK AUSTRALIA

DECISION

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

CPSU, the Community and Public Sector Union
v
Australian Customs & Border Protection Service
(B2011/3220)

COMMISSIONER DEEGAN BRISBANE, 2 AUGUST 2011

Proposed protected action ballot of employees of the Australian Customs and Border Protection Service.

[1] This is an application for a protected action ballot of members of the CPSU, the Community and Public Sector Union (CPSU) employed by the Australian Customs and Border Protection Service (Customs). The application is made pursuant to s.437 of the Fair Work Act 2009 (Act). The CPSU seeks to ballot employees of customs who are CPSU members and who would be covered by the proposed enterprise agreement.

[2] This application follows an earlier s.437 application filed by the CPSU on 20 June 2011 in respect of its agreement negotiations with Customs. A protected action ballot order [PR510740] was issued on 22 June 2011. That order extended the notice period, under s.443(5) of the Act, to a period of 7 working days.

[3] This application was listed for hearing on 2 August 2011. Prior to the hearing, however, the parties advised chambers that they had reached an arrangement whereby Customs would not oppose the CPSU’s s.437 application, and the CPSU in turn would not oppose Customs’ application under s.443(5) of the Act for an extension of the notice period required to be given before taking any protected industrial action. Accordingly, the listing was cancelled and the matter dealt with on the papers.

[4] In considering this matter I must apply s.443 of the Act which provides as follows:

443 When FWA must make a protected action ballot order

(1) FWA 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) FWA 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) FWA 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.

(4) If FWA decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that FWA decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that FWA decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If FWA 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, 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.

Application made in accordance with s.437

[5] I am satisfied for the purposes of s.443(1)(a) that the application has been made in accordance with s.437 of the Act.

Genuinely trying to reach agreement

[6] The only other prerequisite for the making of the order is that I must be satisfied that the applicant has been, and presently is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[7] In order to demonstrate that the CPSU has been, and is, genuinely trying to reach an agreement with Customs a witness statement was filed for the CPSU by an industrial officer, Mr Richard Muffatti. The statement of Mr Muffatti attested to:

• The outcome of the protected action ballot conducted pursuant to the order [PR510740] as a result of which the protected action proposed in the ballot was not approved on the basis that less than 50 % of employees balloted cast a valid vote;



• The meetings between the parties which had taken place on 26 and 27 July 2011 in Canberra between bargaining representatives for the agreement and forthcoming negotiations which are planned to take place between the parties; and



• The major items of disagreement which remain outstanding.

Custom’s application under s.443(5) to increase to the notice period

[8] As mentioned, Customs made an application to extend the notice period required for any resulting industrial action from three to seven working days. In considering whether or not to require a longer period of written notice prior to taking protected industrial action under a protected action ballot I must apply s.443(5) of the Act which provides as follows:

443 When FWA must make a protected action ballot order

...

(5) If FWA 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, the protected action ballot order may specify a longer period of up to 7 working days.

[9] The Customs application was not opposed by the CPSU. I also note that the notice period was also extended to 7 days in the previous protected ballot order issued little more than a month ago. On that basis I am satisfied, for the purposes of s.443(5), that exceptional circumstances exist which justify the period required for written notice of industrial action being increased from 3 to 7 working days.

The Order

[10] As I am satisfied that s.443(1)(a) and (b) have been complied with, I am required to make the protected action ballot order as sought by the CPSU. The order, which issues separately, will specify that the period of notice required to be given before the taking of industrial action is seven (7) working days.

COMMISSIONER

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