CPSU, the Community and Public Sector Union v Parks Victoria

[2012] FWA 4984

[2012] FWA 4984

FAIR WORK AUSTRALIA

EX TEMPORE DECISION

Fair Work Act 2009
s.437—Applications for a protected action ballot order

CPSU, the Community and Public Sector Union
v
Parks Victoria
(B2012/857)

The Australian Workers’ Union
v
Parks Victoria
(B2012/858)

Australian Municipal, Administrative, Clerical and Services Union
v
Parks Victoria
(B2012/861)

DEPUTY PRESIDENT SMITH MELBOURNE, 12 JUNE 2012

Proposed protected action ballot by employees of Parks Victoria.

[1] The following decision, now edited, was issued during proceedings conducted on 8 June 2012.

[2] These are applications for protected action ballots by members of the CPSU, the Community and Public Sector Union (CPSU), The Australian Workers’ Union (AWU) and the Australian Municipal, Administrative, Clerical and Services Union (ASU) employed by Parks Victoria. The applications are made pursuant to s.437 of the Fair Work Act 2009 (“the Act”).

[3] The applicants seek to ballot employees covered by the Parks Victoria Agreement 2008 who are members of the abovementioned unions and who would be covered by the proposed enterprise agreement.

[4] In considering these matters 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.

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

[6] 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. I am satisfied, after hearing submissions from Mr Winter, Mr Price and Ms Jackson on behalf of the unions, that this is the case.

[7] Having decided all of these matters and that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot orders, as sought by the unions.

DEPUTY PRESIDENT

Appearances:

C. Winter for The Australian Workers’ Union.

M. Price for the CPSU, the Community and Public Sector Union.

M. Jackson for the Australian Municipal, Administrative, Clerical and Services Union.

A. Wong Solicitor on behalf of Parks Victoria.

Hearing details:

2012.
Melbourne:
June, 8.

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