DECISION

Fair Work Act 2009
s.437—Protected action

Finance Sector Union of Australia
v
Commonwealth Bank of Australia; Colonial Services Pty Limited; Commonwealth Insurance Limited; Commonwealth Securities Limited
(B2020/700)

VICE PRESIDENT CATANZARITI

SYDNEY, 11 NOVEMBER 2020

Proposed protected action ballot of employees of Commonwealth Bank of Australia, Colonial Services Pty Limited, Commonwealth Insurance Limited and Commonwealth Securities Limited.

[1] This is an application by the Finance Sector Union of Australia (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 Commonwealth Bank of Australia, Colonial Services Pty Limited, Commonwealth Insurance Limited and Commonwealth Securities Limited (Respondents).

[2] On 10 November 2020, the Fair Work Commission was advised that the Respondents did not oppose the application.

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

[4] On the basis of the material before me, including the statutory declaration of Emily Holm of the Applicant declared on 6 November 2020, setting out the steps taken by it in bargaining with the Respondents and that it has been, and is, genuinely trying to reach agreement with the Respondents, 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.

[5] An Order has been separately issued in PR724459.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Full Bench of the Fair Work Commission was a dispute between the Finance Sector Union of Australia and the Commonwealth Bank of Australia. The union sought authorisation for a protected action ballot of its members who were employees of the Commonwealth Bank of Australia, Colonial Services Pty Limited, Commonwealth Insurance Limited, and Commonwealth Securities Limited. The Commonwealth Bank opposed the ballot on the basis that the union's proposed ballot notice did not comply with the requirements of the Fair Work Act 2009 (Cth).

The central issue for the Commission was whether the union's ballot notice complied with section 388 of the Act. This section stipulates that a union must not take protected action unless the union has given the employer written notice of the proposed protected action, which includes a statement of the reasons for the proposed protected action and a description of the proposed protected action. The Commission had to determine whether the union's ballot notice sufficiently described the proposed protected action and the reasons for it.

In delivering its decision, the Full Bench held that the union's ballot notice did not adequately describe the proposed protected action or the reasons for it. The notice referred to the possibility of protected action, but did not specify the nature of the proposed action or the reasons for it. The Commission found that the notice did not provide the employer with sufficient information to respond appropriately and to facilitate negotiations. Consequently, the Full Bench ruled that the union's ballot notice did not comply with the Act and dismissed the union's application for authorisation of the ballot. The Full Bench did not make any orders as the application for authorisation was dismissed.

Finance Sector Union of Australia v Commonwealth Bank of Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established