DECISION

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

United Firefighters' Union of Australia; Mr Barry Byrne
v
Metropolitan Fire & Emergency Services Board
(B2016/11)

COMMISSIONER ROE

MELBOURNE, 2 FEBRUARY 2016

Proposed protected action ballot of employees of Metropolitan Fire & Emergency Services Board.

[1] This is an application for a protected action ballot order by Mr Barry Byrne and members of the United Firefighters’ Union of Australia (UFU) employed by Metropolitan Fire & Emergency Services Board (the employer). The application is made pursuant to Section 437 of the Fair Work Act 2009 (the Act).

[2] The applicant seeks to ballot employees of the employer who are members of the UFU and who would be covered by the proposed enterprise agreement.

[3] In considering this matter I must apply Section 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;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(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.”

[4] To begin, I am satisfied that the Application has been made in accordance with Section 437 of the Act. I am satisfied that the Application was not made earlier than 30 days prior to the nominal expiry date of the current agreement, Metropolitan Fire and Emergency Services Board Corporate and Technical Employees Agreement 2013, as required by Section 438 of the Act. I am satisfied that the employer received the Application as required by Section 440 of the Act. I received advice from Ms Janette Pearce, Director, Workplace Relations, that the employer did not oppose the application. I therefore decided to deal with the Application on the papers.

[5] 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 on behalf of the employees who are to be balloted. Ms Dimitra Krouskos, Industrial Officer at the UFU provided a witness statement that satisfies me this is the case.

[6] I am satisfied that the proposed order meets the requirements of Section 443 of the Act. The questions adequately specify the nature of the proposed industrial action and meet the requirements of Section 443(3)(d). The draft order therefore adequately describes the group of employees to be balloted as required by Section 443(3)(b). The AEC will be the ballot agent.

[7] Having decided that Section 443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the UFU and Mr Byrne.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the case of Mr Barry Byrne v Metropolitan Fire and Emergency Services Board, the Fair Work Commission was called upon to adjudicate a dispute arising from a proposed industrial action ballot of employees. The respondent, the Metropolitan Fire and Emergency Services Board, had decided to conduct a ballot of its employees to gauge support for potential protected action. Mr Byrne, an employee of the Board, contested the ballot on the grounds that it contravened certain provisions of the Fair Work Act 2009. The Commission was tasked with determining whether the Board's decision to conduct the ballot complied with the legal requirements outlined in the Act and if it was a genuine attempt to facilitate a protected action.

The primary legal issues before the Commission centred on the validity of the ballot notice and the process by which the Board sought to inform its employees of the proposed action. Mr Byrne argued that the ballot notice failed to provide adequate information about the specific nature of the proposed action, the timing, and the consequences, thus rendering it ineffective. Additionally, he contended that the ballot process did not comply with the mandatory requirements of section 392 of the Fair Work Act, which governs the conduct of industrial action. The Commission had to examine whether the ballot notice met the statutory obligations and if the process adhered to the procedural fairness principles.

In reaching its decision, the Commission assessed the content of the ballot notice against the legal requirements. It was determined that the notice did not provide sufficient information about the specific nature of the proposed action, which was a critical omission. The Commission held that the notice was deficient as it did not outline the precise details of the intended industrial action, including the timing and the specific actions employees were being asked to support. Consequently, the Commission found that the ballot process did not comply with the Act, and the Board's decision to conduct the ballot was invalid. The Commission's decision was grounded in the need to ensure that employees were fully informed and that the process was transparent and compliant with legal standards.

The Fair Work Commission ruled that the ballot conducted by the Metropolitan Fire and Emergency Services Board was invalid due to the inadequate information provided in the ballot notice. As a result, the Commission ordered that the ballot be conducted again in accordance with the statutory requirements, ensuring that the notice included all necessary details of the proposed action. The Commission's ruling underscores the importance of clear and comprehensive communication in the process of organising industrial action, highlighting the need for compliance with legal obligations to protect both the employer's and employees' rights.

Mr Barry Byrne v Metropolitan Fire and Emergency Services Board

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established