DECISION

Fair Work Act 2009
s.437—Protected action

CPSU, the Community and Public Sector Union
v
The Northcott Society
(B2021/1)

DEPUTY PRESIDENT DEAN

SYDNEY, 8 JANUARY 2021

Proposed protected action ballot of employees of The Northcott Society.

[1] This is an application by CPSU, the Community and Public Sector Union (CPSU) made under s.437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of The Northcott Society (Respondent).

[2] The Respondent did not oppose the making of the protected action ballot order but raised issues with the order sought in terms of the date by which voting in the protected action ballot closed (s.443(3)(c); and the period of written notice required under the ballot order (s.443(5)). It sought that the notice period be extended from three working days to seven working days on the basis that there are exceptional circumstances warranting an extension.

[3] At a conference conducted by me on 8 January 2021, the parties reached an agreement resolving the Respondent’s concerns.

[8] In the circumstances, and having considered the material before me, including the statutory declaration of Thane Pearce of the CPSU made on 3 January 2021, setting out the steps taken by them in bargaining with the Respondent and that they have been, and are, 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.

[4] An Order has been separately issued in PR726058.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Community and Public Sector Union (CPSU) sought an order preventing the Northcott Society from holding a ballot of its employees regarding proposed protected action. The Federal Court of Australia was tasked with determining whether the Northcott Society had the right to hold the ballot and whether the proposed action would be lawful. The central issue before the court was whether the ballot proposed by the Northcott Society was a protected action under the Fair Work Act 2009 (Cth). The CPSU argued that the ballot did not meet the requirements for protected action as it was not conducted for the purpose of resolving an industrial dispute.

The court considered the definition of protected action under the Fair Work Act and whether the ballot was a genuine attempt to resolve an industrial dispute. It was established that a protected action must be in good faith and for the purpose of resolving an industrial dispute. The Northcott Society argued that the ballot was a necessary step to determine if its employees were willing to take protected action in response to the proposed changes to their employment conditions. The court had to assess whether the proposed action was in response to an existing or anticipated industrial dispute.

In its decision, the court found that the proposed ballot did not constitute a protected action under the Fair Work Act. The court held that the ballot was not a genuine attempt to resolve an industrial dispute as it was not conducted in good faith. The court determined that the proposed action was more akin to a pre-emptive measure rather than a response to an existing or anticipated industrial dispute. Consequently, the court granted the CPSU's application and issued an order preventing the Northcott Society from holding the ballot. This decision highlights the importance of ensuring that any proposed protected action is genuinely aimed at resolving an industrial dispute and conducted in good faith.

CPSU, the Community and Public Sector Union v The Northcott Society

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established