CPSU, the Community and Public Sector Union v State of Victoria

[2011] FWA 6361

[2011] FWA 6361

FAIR WORK AUSTRALIA

EX TEMPORE DECISION

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

CPSU, the Community and Public Sector Union
v
State of Victoria
(B2011/3408)

COMMISSIONER SMITH MELBOURNE, 16 SEPTEMBER 2011

Proposed protected action ballot by employees of State of Victoria.

[1] The following decision, now edited, was issued during proceedings conducted on 14 September 2011.

[2] This is an application for a protected action ballot by the CPSU, Community and Public Sector Union (CPSU). The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act) and the applicant seeks to ballot employees of the State of Victoria who would be covered by a proposed enterprise agreement.

[3] In considering the matter, I must apply s.443 of the Act. I am satisfied that the application has been made in accordance with s.437 of the Act and I am also satisfied that the applicant has been and is genuinely trying to reach agreement with the employer of the employees who are to be balloted.

[4] There is no issue raised by the State of Victoria as to the matters to which I have just addressed.

[5] There is, however, an issue raised relating to items 7, 12 and 17 of the proposed ballot. In this connection, the State of Victoria draws to my attention the decision in the Mornington Peninsula Shire Council [[2011] FWAFB 4809] case, a decision of their Honours, Watson SDP, Kaufman SDP and Gooley C. By majority, the Full Bench dealt with the issues directly raised on point in this matter and concluded that it constituted industrial action as defined by the Act. In the minority, his Honour, Kaufman SDP, took a different view and, in particular, expressed the view that:

“If the ballot authorises action that is not industrial action, when conduct occurs under the authority conferred by the ballot, it will not be protected industrial action and leave those who participate in it open to suit, but not to proceedings under the Act. Not only is it beyond the jurisdiction of Fair Work Australia to authorise a ballot for the engaging in conduct that would not be industrial action, it is inappropriate that its imprimatur be given.”

[6] It is not an issue that the majority formed a contrary view. I propose to follow the majority as it is appropriate to do so.

[7] There has been one suggested alteration that I have made and that is to delete the subheadings, lest it be thought that employees are only voting in relation to the particular area in which they work; the vote by employees of the State of Victoria deals with all matters covered in the proposed order.

[8] Having decided that s.443(1)(a) and (b) have been complied with, I must make the protected action ballot order as sought by the CPSU and my order will issue shortly.

COMMISSIONER

Appearances:

R. Laird for the CPSU, the Community and Public Sector Union.

G. McKeown of Counsel on behalf of the State of Victoria.

Hearing details:

2011.
Melbourne:
September, 14.

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