CPSU, the Community and Public Sector Union v Commonwealth of Australia acting through and represented by the Department of Agriculture, Fisheries and Forestry

[2011] FWA 3727

[2011] FWA 3727

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.437—Protected action

CPSU, the Community and Public Sector Union
v
Commonwealth of Australia acting through and represented by the Department of Agriculture, Fisheries and Forestry
(B2011/2959)

COMMISSIONER DEEGAN CANBERRA, 16 JUNE 2011

Proposed protected action ballot by employees of Commonwealth Government represented by Department of Agriculture, Fisheries and Forestry.

[1] On 7 June 2011 the Community and Public Sector Union (the CPSU) made an application for a protected action ballot pursuant to s.437 of the Fair Work Act 2009 (the Act). The CPSU seeks to ballot employees of the Commonwealth Department of Agriculture, Fisheries and Forestry (DAFF) who are CPSU members and who would be covered by the proposed enterprise agreement.

[2] The application was listed for hearing in Sydney on 8 June 2011. At the hearing the representative of DAFF requested time to consider the application and the affidavit 1 lodged by a CPSU organiser, Mr P. Feltham, in support of the application. It was foreshadowed that DAFF may, after consideration, oppose the application on the ground that the requirement under s.443(1)(b) - that Fair Work Australia must be satisfied that the CPSU had been, and still was, genuinely trying to reach agreement - had not been met. In addition, DAFF wished to consider whether, if the application were to be granted, it was necessary to request an increase in the notice period under s.414(3) of the Act.

[3] Having taken the evidence of Mr Feltham the matter was adjourned until 14 June 2011 to allow DAFF to consider its position on the application. On 9 June 2011 DAFF advised that it would make the application to extend the notice period for the taking of industrial action and would oppose the application for the order on the foreshadowed ground.

[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.

[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 next matter to which attention must be given is whether or not the applicant has been, and 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 had been genuinely trying to reach an agreement with DAFF the affidavit of Mr Feltham attested to:

• The service of the CPSU’s bargaining claims on DAFF on 22 March 2011; and



• Meetings held with DAFF on 16, 17, 21, 22, 24, 28 and 30 March, 11 12 and 29 April, 17 May and 6 June 2011 for the purpose of trying to reach agreement on the terms of a new agreement.

[8] It was put for DAFF that the evidence brought by the CPSU was not sufficient to satisfy the tribunal that the requirement of s.443(1)(b) had been made out. At the commencement of the hearing on 8 June 2011 DAFF relied on two CPSU press releases 2 dated 16 May 2011 and 7 June 2011 to argue, somewhat obliquely, that the CPSU was not genuinely trying to reach agreement with DAFF but that the organisation was more concerned with achieving a better APS-wide outcome and merely using DAFF as a tool in that strategy.

[9] At the resumption of the hearing on 14 June 2011 the representative for DAFF cross-examined Mr Feltham, the CPSU witness, about his authority to reach agreement with DAFF during negotiations. It was Mr Feltham’s response that he had authority to negotiate but would need to take any departure from the CPSU bargaining position back to the CPSU Executive for endorsement.

[10] In his submissions Mr O’Donovan put that, in order to satisfy the tribunal that it was genuinely trying to reach agreement with DAFF, the CPSU should have called as a witness an official of the CPSU (an Executive Council member was suggested) capable of providing authoritative evidence as to the “motivation, intention, object and purpose of the union at the particular time”. 3

[11] At the conclusion of the hearing I raised with the parties the issue of whether, and if so, to what extent, I could take into consideration knowledge which I had acquired as a result of my involvement in several related matters recently before the tribunal including:

• the bargaining disputes lodged by the CPSU with 12 APS agencies on 24 May 2011 which were the subject of a joint mentions hearing/conference on 30 May 2011;



• the subsequent discussions held between the CPSU and the Australian Public Service Commission which administers the APS Bargaining Framework; and



• the conference I conducted between DAFF and CPSU on 6 June 2011 concerning their bargaining dispute.

[12] I noted that given my involvement in the abovementioned matters I had detailed knowledge of the state of the bargaining that had occurred between the parties and would be taking that knowledge into account in making my decision although those discussions had been touched on only briefly during the hearing. Neither party had any objection to my taking into account those discussions in which I participated and which involved both parties.

[13] Having taken into account the evidence provided by Mr Feltham and my own knowledge of the discussions with the parties at the bargaining dispute conference held on 6 June 2011 I am satisfied that the CPSU is genuinely trying to reach agreement with DAFF.

Increase to the notice period

[14] In applying for an increase to the notice period for industrial action DAFF filed two affidavits 4 of employees concerning the deleterious effects that might ensue if the industrial action outlined in the CPSU’s proposed ballot questions were to occur. Those statements set out the functions performed by DAFF employees who might cease work as a result of industrial action. These functions included identifying and managing the risks of plant and animal pests and diseases being brought into Australia through the screening of all international passengers, mail and cargo arriving in Australia. It was noted that DAFF has the obligation to avoid the movement of goods and people assessed as posing a biosecurity risk to Australia. Additionally, the role of DAFF employees in the meat export industry was described together with the consequences for that industry, including the welfare of animals to be slaughtered, should those employees cease performing their duties.

[15] The statements tendered by DAFF claimed that the full seven days notice allowed under the legislation would be required if employees were to take some of the types of industrial action for which CPSU was seeking authority in the ballot order.

[16] The CPSU cross-examined the witnesses about their statements. From that cross-examination it was clear that not every type of industrial action foreshadowed in the CPSU application would have the severe consequences described in the affidavits. It was clear, however, that those consequences could flow if particular types of industrial action, the authority for which was being sought by the CPSU, were taken.

[17] No evidence was called by the CPSU to challenge the claims made by the two DAFF witnesses in their statements.

[18] I am satisfied that given the important roles performed by DAFF employees in maintaining Australia’s biosecurity and the deleterious consequences that might flow from the types of industrial action the CPSU might be able to pursue if the ballot order was granted in its draft form, exceptional circumstances exist which justify the extension of the notice period for industrial action to the maximum seven (7) days sought by DAFF.

[19] Although the CPSU suggested that the order might be drafted so as to specify different notice periods for particular types of industrial action, no submissions were made which satisfied me that such an option was available under the terms of s.443(5) of the Act which provides for the ballot order to specify “a period”. Even were such an option available there was not sufficient information before me to be able to make a determination as to which forms of industrial action did not require the full seven days notice.

The Order

[20] Having decided that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order as sought by the CPSU. That order will specify the extension of the period of notice for industrial action to seven (7) days. The order will issue separately.

COMMISSIONER

Appearances:

Mr Lindsay Benfell, Community & Public Sector Union, for the Applicant

Mr Damien O’Donovan & Mr Dejan Lukic, Australian Government Solicitor, for the Respondent

Hearing details:

2011.

Sydney:

June, 8.

2011.

Canberra:

June 14.

 1   Exhibit CPSU1.

 2   Exhibits DAFF1 and DAFF2.

 3   Transcript PN569.

 4   Exhibits DAFF5 and DAFF7.

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