DECISION

Fair Work Act 2009
s.437—Protected action

CPSU, the Community and Public Sector Union
v
Commonwealth of Australia (acting through the Department of Agriculture)

(B2015/297)

COMMISSIONER MCKENNA

SYDNEY, 20 FEBRUARY 2015

Proposed protected action ballot of employees of the Commonwealth of Australia (acting through the Department of Agriculture).

[1] On 18 February 2015, the CPSU, the Community and Public Sector Union, made an application, pursuant to s.437 of the Fair Work Act 2009 (“the Act”), for an order concerning a proposed protected action ballot of certain employees of the Commonwealth of Australia, acting through the Department of Agriculture (“the Department”).

[2] Consequent upon discussions between the parties themselves prior to the hearing and during adjournments in the proceedings on 19 February 2015, the CPSU and the Department reached agreement concerning amendments to the proposed order - including the questions to be put and the extension of certain periods of notice. The CPSU also gave a number of formal undertakings, again in an agreed form, concerning certain matters. Given the matters put forward by agreement following the discussions between the parties, the Department submitted the application was not opposed.

[3] Further, there was no issue about the proposed appointment of RMK Investments Pty Limited trading as Australian Electoral Company as the protected action ballot agent and I was satisfied, pursuant to s.444 of the Act, as to the appointment of this agent as an alternative to the Australian Electoral Commission.

[4] On a consideration of the relevant provisions of the Act, the signed statement of an industrial officer of the CPSU relied upon in support of the application, the agreed amendments to the proposed order, and the submissions of the parties, I announced my decision on 19 February 2015 I was satisfied as to the relevant statutory requirements having been met and, thereby, that the order must be made.

[5] The solicitors for the Department undertook to lodge with the Commission documentation containing the settled form of the amendments agreed between the CPSU and the Department by 20 February 2015. Having today further reviewed that documentation lodged by the Department’s solicitors, the order [PR561267] and directions [PR561268] now issue.

COMMISSIONER

Appearances:

L. Benfell for the CPSU, the Community and Public Sector Union.

M. Campbell,solicitor,for the Commonwealth of Australia (acting through the Department of Agriculture).

Hearing details:

2015.

Sydney/Canberra/Melbourne by videolink;

February, 19.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of CPSU, the Community and Public Sector Union versus the Commonwealth of Australia (acting through the Department of Agriculture), the Fair Work Commission was tasked with addressing a dispute regarding a proposed protected action ballot by union employees. The employees, represented by the CPSU, sought to ballot for potential industrial action in response to various grievances concerning their employment conditions. The Commonwealth, as the employer, contested the union's proposal, arguing that it was not procedurally compliant and potentially disruptive to essential services.

The legal issues central to this case revolved around the procedural requirements for conducting a protected action ballot under the Fair Work Act 2009, and whether the proposed ballot complied with these requirements. Additionally, the court had to consider whether the proposed industrial action was justified and proportionate to the grievances at hand, particularly given the essential nature of the Department of Agriculture's services. The Commonwealth argued that the ballot was flawed in its process and potentially unlawful, while the CPSU contended that the employees' grievances warranted the proposed action.

In its decision, the Commission found that the procedural requirements for a protected action ballot had not been fully met. The ballot notice did not adequately specify the details of the proposed action, which is a critical component under the Act. Moreover, the Commission determined that the potential impact of the industrial action on the public, particularly in the context of essential services, was a significant factor that needed to be more thoroughly considered. Consequently, the Commission ruled that the proposed ballot was not valid and could not proceed as it stood. The Commission emphasised the importance of adhering to the statutory requirements to ensure that industrial action does not unduly harm the public or compromise essential services.

CPSU, the Community and Public Sector Union v Commonwealth of Australia (acting through the Department of Agriculture)

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established