CPSU, the Community and Public Sector Union v Commonwealth Scientific and Industrial Research Organisation

[2011] FWA 666

[2011] FWA 666

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.437—Protected action

CPSU, the Community and Public Sector Union
v
Commonwealth Scientific and Industrial Research Organisation
(B2011/2538)

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Commonwealth Scientific and Industrial Research Organisation
(B2011/2539)

COMMISSIONER SMITH MELBOURNE, 1 FEBRUARY 2011

Proposed protected action ballot by employees of Commonwealth Scientific and Industrial Research Organisation (CSIRO).

[1] This is an application for a protected action ballot by members of the CPSU, the Community and Public Sector Union (CSPU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) employed by the Commonwealth Scientific and Industrial Research Organisation (CSIRO). The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act).

[2] The applicants seek to ballot employees of the CSIRO who would be covered by the proposed enterprise agreement and who are members of the CPSU and the AMWU.

[3] In considering this matter I must apply s.443 of the Act which provides:

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.

[4] To begin, I am satisfied that the applications have been made in accordance with s.437 of the Act.

[5] The next matter to which attention must be given is whether or not the applicants have been, and are, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. CSIRO submit that the applicants have not been genuinely trying to reach agreement and that the questions are ambiguous. I am satisfied, after hearing submissions from Mr Popovski, on behalf of the CPSU and Ms Donnellan, on behalf of the AMWU, that the unions have been, and are, genuinely trying to reach agreement. Further, on the submissions of the applicants and having regard to the decision in John Holland Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) & Anor [[2010] FWAFB 526], I accept the questions as submitted.

[6] Having decided that s.443(a) and (b) have been complied with, I must make protected action ballot orders, as sought by the CPSU and the AMWU. My orders will issue shortly.

COMMISSIONER

Appearances:

S. Popovski with P. Girdler for the CPSU, the Community and Public Sector Union.

A. Donnellan for the “Automotive, Food, Metals, Engineering, Printing and Kindred

Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

A. Allars with W. Smith and C. Smith for the Commonwealth Scientific and Industrial

Research Organisation

Hearing details:

2011.
Melbourne:
January 31.

Printed by authority of the Commonwealth Government Printer

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