CPSU, the Community and Public Sector Union v Commonwealth of Australia (Represented by the Department of Agriculture, Fisheries and Forestry)

[2023] FWC 2563

[2023] FWC 2563

FAIR WORK COMMISSION

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 (Represented by the Department of Agriculture, Fisheries and Forestry)

(B2023/1047)

DEPUTY PRESIDENT WRIGHT SYDNEY, 6 OCTOBER 2023

Proposed protected action ballot of employees of Commonwealth of Australia (Represented by the Department of Agriculture, Fisheries and Forestry)

1. This is an application by the Community and Public Sector Union (CPSU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of the Commonwealth of Australia (Represented by the Department of Agriculture, Fisheries and Forestry) (DAFF or Employer).

1. On 5 October 2023, DAFF advised the Commission that it did not wholly object to the Application but wished to raise concerns about the group or groups of employees to be balloted, the ballot questions and the notice requirements.

1. In relation to the notice requirements, DAFF submitted that there are exceptional circumstances justifying a longer notice period, as follows:

(a)the employees to be balloted provide critical, time-sensitive services to the animal export and meat processing industries, including (without limitation):

§assessing animals prior to slaughter to ensure they are fit for human consumption and/or meet requirements for export to different overseas markets;

§making determinations on the final disposition of carcasses to ensure they are fit for human consumption and/or meet requirements for export to different overseas markets; and

§providing onsite supervision required for export to overseas markets including the European Union (EU) and the United States of America (US);

(b)if the work is not performed at the times planned, this can lead to (without limitation):

§slaughtering/production being unable to commence, noting that such delays may mean that:

olive animals are held in conditions which may become overcrowded which may lead to animals becoming distressed and/or more susceptible to disease and/or not fit for human consumption;

oemployees of private companies who are engaged to process the animals not being able to work and/or not receiving any pay;

osignificant economic losses and/or reputational damage for producers in the meat processing industry caused by delays in getting products to market;

§animals or animal products that cannot be exported to certain markets such as the EU or US; and/or

§the risk that producers attempt to export product without meeting the relevant market requirements, which may cause damage to the reputation of the industry and/or loss of access to markets;

(c)DAFF is unable (quickly or sometimes at all) to put in place other processes to ameliorate the risks identified above because:

§the employees who undertake this work require qualifications and training (including significant on the job training) to be competent to undertake the work; and

§the employees must be available in regional and rural locations – meaning in many circumstances there will be no ability to replace an employee who takes industrial action.

1. On 6 October 2023, the CPSU and DAFF advised my Chambers that they had reached agreement in relation to the issues raised by DAFF. The CPSU filed an amended draft order reflecting this agreement.

1. In the circumstances, I have decided to determine the matter on the papers without holding a hearing.  

1. On the basis of the material before me, including the declaration of Ms Rebecca Fawcett, Legal Director, and the Witness Statement of Kelly Miller, CPSU Section Secretary for Agriculture, Forestry and Fisheries setting out the steps taken by the CPSU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with DAFF, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.  

1. Based on the submissions by DAFF and the terms of the agreement reached between the parties, I am satisfied that there are exceptional circumstances justifying the period of written notice being longer than 3 working days for industrial action referred to in Questions 1 and 2 of the ballot questions. Pursuant to s.443(5) of the Act, the period of written notice for the purpose of s. 414(2) is 5 working days for industrial action referred to in Question 1, and 7 working days for industrial action referred to in Question 2.

1. The ballot is to be conducted by TrueVote Pty Ltd (TrueVote). TrueVote has been approved as an eligible protected action ballot agent under s 468A of the Act[1] and consequently is authorised to conduct the ballot.

1. For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 27 October 2023.[2] This also established the ballot period for the purpose of s.448A(2) of the Act.

1. An Order has been separately issued in PR766866.

1. This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] TrueVote Pty Ltd [2023] FWC 1446.

[2] This is, in effect, 15 working days from the date of the Order, as sought in the amended draft order.

Printed by authority of the Commonwealth Government Printer

<PR766867>