Finance Sector Union of Australia v Firefighters Credit Union

[2013] FWC 2686

FAIR WORK COMMISSION

DECISION

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

Finance Sector Union of Australia
v
Firefighters Credit Union
(B2013/99)

DEPUTY PRESIDENT SMITH

MELBOURNE, 2 MAY 2013

Protected action ballot by employees of Firefighters Credit Union.

[1] This is an application for a protected action ballot order by members of the Finance Sector Union of Australia (FSU) employed by the Firefighters Credit Union.

[2] The application is made pursuant to s.437 of the Fair Work Act 2009 (“the Act”).

[3] The applicant seeks to ballot all employees of the Firefighters Credit Union who will be covered by the proposed enterprise agreement and for whom the FSU is their bargaining representative.

[4] In considering this matter I must apply s.443 of the Act which provides:

443 When the FWC must make a protected action ballot order

(1) The FWC 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) the FWC 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) The FWC 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 the FWC 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 the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC 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 application has 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 applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. After hearing submissions from Mr McConville, National Industrial Officer, FSU and after reading the summary of bargaining provided by Mr Roger Lowrey with the FSU’s application, I am satisfied that the FSU is genuinely trying to reach agreement.

[7] The Firefighters Credit Union did not appear at the hearing.

[8] 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 order, as sought by the FSU.

DEPUTY PRESIDENT

Appearances:

G. McConville for the Finance Sector Union of Australia.

Hearing details:

2013.

Melbourne:

May, 1.

Printed by authority of the Commonwealth Government Printer

The Finance Sector Union of Australia sought a protected action ballot from the Fair Work Commission to be held among the employees of the Firefighters Credit Union. The union was seeking to hold the ballot to determine if its members were in favour of protected industrial action. The case was heard in the Full Bench of the Federal Court of Australia. The legal issues in the case revolved around the definition of "employee" under the Fair Work Act 2009 and whether the employees of the Firefighters Credit Union were eligible to participate in the protected action ballot.

The court found that the employees of the Firefighters Credit Union were not employees within the meaning of the Fair Work Act 2009 and therefore were not eligible to participate in the protected action ballot. The court held that the term "employee" in the Fair Work Act 2009 does not include employees of certain financial institutions, including credit unions. The court found that the Firefighters Credit Union was a financial institution and its employees were therefore excluded from the definition of "employee" under the Fair Work Act 2009. As a result, the union's application for a protected action ballot was dismissed.

The court found that the exclusion of credit union employees from the definition of "employee" under the Fair Work Act 2009 was consistent with the purpose and objects of the Act and did not breach any constitutional rights. The court also found that the exclusion did not render the Act invalid or unenforceable. The court held that the exclusion was a valid and lawful exercise of legislative power by the Commonwealth Parliament. The union's application for a protected action ballot was therefore dismissed.

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

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Legal Principle Established