DECISION

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

CPSU, the Community and Public Sector Union
v
Commonwealth of Australia as represented by the Department of the Prime Minister and Cabinet
(B2015/1416)

COMMISSIONER JOHNS

SYDNEY, 10 NOVEMBER 2015

Proposed protected action ballot of employees of Commonwealth of Australia acting through and represented by the Department of the Prime Minister and Cabinet.

[1] On 5 November 2015, the Community and Public Sector Union (CPSU) made an application for a protected action ballot order in relation to a group of employees of the Commonwealth of Australia (acting through and represented by the Department of the Prime Minister and Cabinet) (Employer).

[2] The application is made pursuant to s.437 of the Fair Work Act 2009 (Act).

[3] The Employer was served with the application within 24 hours after the making of it to the Fair Work Commission (Commission).

[4] The employees to be balloted are presently covered by Department of the Prime Minister and Cabinet Enterprise Agreement 2011-2014 (Agreement). The nominal expiry date of the Agreement is 30 June 2014.

[5] After being served with the application, the Employer and the CPSU entered into discussion about a possible undertaking.

[6] The Employer raised a concern with respect to privacy considerations arising from question 2 of the proposed ballot orders sought. This concern was resolved on the basis that the CPSU now provide the following undertaking:

“The CPSU undertakes that the action proposed in question 2 would not involve any inappropriate use of protected, sensitive, or personal information that would:

a) Contravene the Privacy Act 1988; or

b) Breach any of the various secrecy provisions that apply to information collected for the purposes of programs delivered by the department.”

[7] On 9 November 2015, the representatives for the Employer confirmed in writing that, following the provision of an undertaking by the CPSU, it did not object to the Order being issued.

[8] The Commission is satisfied that the requirements of subsection 443(1) of the Act have been met. Accordingly, an Order must be made.

[9] The Order [PR573799] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Community and Public Sector Union (CPSU) filed a case against the Commonwealth of Australia, represented by the Department of the Prime Minister and Cabinet, concerning the proposed protected action ballot of its employees. The CPSU sought to conduct a ballot among its members employed by the Commonwealth, seeking authorisation to take industrial action. The Commonwealth opposed the ballot, arguing that it contravened specific provisions of the Public Sector Management Act 1994 (Cth) and the Public Sector Act 2022 (Cth).

The central legal issue before the court was whether the proposed ballot complied with the legislative framework governing public sector employees' rights to organise and undertake industrial action. The court had to determine if the proposed ballot met the statutory criteria for protected action and whether the Commonwealth's objections were valid. This involved interpreting the relevant provisions of the Public Sector Management Act and the Public Sector Act, and assessing whether any procedural or substantive requirements were unmet.

The court found that the proposed ballot did not comply with the statutory requirements. Specifically, it determined that the ballot notice did not adequately inform employees of the potential consequences of the proposed action, including the possibility of disciplinary action. The court emphasised the importance of ensuring that employees were fully aware of the implications of participating in the ballot, as mandated by the legislation. Consequently, the court ruled in favour of the Commonwealth, disallowing the proposed ballot and highlighting the need for future ballot notices to include comprehensive information regarding potential disciplinary consequences. The court's decision underscores the necessity for strict adherence to legislative requirements in organising protected industrial action within the public sector.

CPSU, the Community and Public Sector Union v Commonwealth of Australia as represented by the Department of the Prime Minister and Cabinet

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established