CPSU, the Community and Public Sector Union v Serco Australia Pty Ltd

[2022] FWC 2312

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

CPSU, the Community and Public Sector Union
v

Serco Australia Pty Ltd

(B2022/1297)

VICE PRESIDENT CATANZARITI

SYDNEY, 31 AUGUST 2022

Proposed protected action ballot of employees of Serco Australia Pty Ltd

This is an application by the CPSU, the Community and Public Sector Union & SPSF Group & Western Australian Prison Officers Union Branch (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Serco Australia Pty Ltd (Respondent).

On 31 August 2022, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

On the basis of the material before me, including the statutory declaration of Beven Hanlon of the Applicant declared on 29 August 2022, setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

An Order has been separately issued in PR745344.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Community and Public Sector Union (CPSU) sought an order for a protected action ballot from Serco Australia Pty Ltd. The CPSU was in the process of negotiating an agreement with Serco Australia and claimed to be genuinely attempting to reach a resolution. The application was made under section 437 of the Fair Work Act 2009. Serco Australia did not oppose the application, leading the Commission to determine the matter without a hearing. The Vice President, Catanzariti, reviewed the application and the evidence provided, including a statutory declaration from Beven Hanlon of the CPSU, which outlined the union's bargaining efforts and adherence to the Act's requirements.

The primary legal issue for the Vice President to decide was whether the CPSU had met the criteria for a protected action ballot under the Fair Work Act. This involved verifying that the union had genuinely attempted to negotiate in good faith, that a notification period had been provided, and that the statutory conditions were satisfied. The Vice President's decision hinged on the sufficiency of the evidence provided by the CPSU and the absence of opposition from Serco Australia, which indicated an agreement on the procedural aspects of the application.

Having reviewed the statutory declaration and the procedural aspects of the application, the Vice President found that the CPSU had met the necessary criteria. The evidence of the union's genuine attempts to negotiate and the compliance with the notification period under section 443(1) of the Act was deemed adequate. Consequently, the Vice President determined that the requirements for a protected action ballot order were fulfilled. An order was issued in accordance with the application, allowing the CPSU to proceed with the ballot.

In summary, the Fair Work Commission granted the CPSU's application for a protected action ballot order against Serco Australia Pty Ltd, following a review of the union's negotiation efforts and compliance with the Act. The absence of opposition from Serco Australia and the satisfactory evidence provided by the CPSU led to the Vice President's decision to issue the order without the need for a hearing. This decision permits the CPSU to proceed with the ballot as part of their ongoing negotiations with Serco Australia.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established