CPSU, the Community and Public Sector Union v Commonwealth Government Australian Customs and Border Protection Service
[2011] FWA 3919
•22 JUNE 2011
[2011] FWA 3919 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
CPSU, the Community and Public Sector Union
v
Commonwealth Government - Australian Customs and Border Protection Service
(B2011/3008)
COMMISSIONER DEEGAN | CANBERRA, 22 JUNE 2011 |
Proposed protected action ballot by employees of Australian Customs and Border Protection Services.
[1] This is an application by the CPSU, the Community and Public Sector Union (CPSU) for a protected action ballot of its members employed by the Australian Customs and Border Protection Service (Customs). The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act).
[2] The CPSU seeks to ballot employees of Customs who are members of the CPSU and who would be covered by the proposed enterprise agreement.
[3] At the hearing conducted on Tuesday, 21 June 2011 Customs’ representative advised that his client did not wish to oppose the making of the order. Customs did, however, make an application under s.443(5) of the Act to extend the period of written notice required under the ballot order from three working days to seven working days. The CPSU did not oppose Customs’ application to extend the notice period.
The CPSU’s s.437 application for a protected action ballot order
[4] In considering whether or not to issue a protected action ballot order 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.
[5] I am satisfied that the application was made in accordance with s.437 of the Act.
[6] I am satisfied, on the basis of the unchallenged statement filed by Mr Richard Muffatti on behalf of the CPSU, that the CPSU has been, and is, genuinely trying to reach an agreement with the DPS, the employer of the employees who are to be balloted.
[7] Having decided 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.
Customs’ s.443(5) application to extend the written notice period
[8] 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] I am satisfied for the purposes of s.443(5), on the basis of the unopposed submissions put on transcript by the representative of Customs, that exceptional circumstances exist which justify the period of written notice being increased from three (3) to seven (7) working days. The exceptional circumstances relate to the nature of the work carried out by Customs employees and the implications for the national interest if such work were to be disrupted by industrial action taken at short notice.
[10] The increase in the notice period required to be provided by the CPSU before engaging in industrial action will be reflected in the Order to be issued separately.
COMMISSIONER
Appearances:
Mr Lindsay Benfell, Senior Industrial Officer, for the CPSU, the Community & Public Sector Union.
Mr Brendan Avallone, Minter Ellison,for the Australian Customs and Border Protection Service.
Hearing details:
2011.
Canberra:
June, 21.
2011.
Sydney:
June, 21.
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