Mr Peter Dale v Australian Taxation Office

[2015] FWC 5665

[2015] FWC 5665

FAIR WORK COMMISSION

DECISION

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

Mr Peter Dale
v
Australian Taxation Office
(B2015/1124)

COMMISSIONER WILSON MELBOURNE, 17 AUGUST 2015

Proposed protected action ballot of employees of Australian Taxation Office.

[1] This is an application for a protected action ballot order by Peter Dale, who is employed by the Australian Taxation Office and whose employment is presently covered by the ATO Enterprise Agreement 2011, 1the nominal expiry date of which was 30 June 2014.

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

[3] The Applicant seeks to ballot Mr Dale only. The material filed in this application by the Applicant asserts that he is a bargaining representative for the purposes of s.176(1).

[4] Mr Dale has filed a statutory declaration in support of his application. That declaration shows he is a bargaining representative, at present representing himself alone. It also shows that while presently representing only himself, for a period of bargaining Mr Dale represented two other employees, however, on 14 August 2015, after the time on which I concluded a hearing on his application, each employee gave notice to the ATO that this representation was withdrawn.

[5] 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.

[6] To begin, I am satisfied that the application has been made in accordance with s.437 of the Act. The section requires that the Applicant is a bargaining representative, and I am satisfied that is the case (s.437(1)). The section also requires the application specify the group or groups of employees who are to be balloted (s.437(3)(a)). I am satisfied that this criterion has also been met by the Applicant, with the group being described as him alone.

[7] The same section (s.437(3)(b)) also requires the application to specify the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action. In this regard the Australian Taxation Office has submitted that it does not in-principle resist the making of a protected action ballot order, as amended by Mr Dale.

[8] The matter was the subject of a hearing before me on Friday, 14 August 2015, in which the Applicant outlined the reasons he was making the application, and dealt with a concern on the part of the Commission about the validity of the application, together with a number of preliminary objections on the part of the Australian Taxation Office, all of which were resolved to their satisfaction.

[9] The concern raised by the Commission went to whether the Applicant was engaged in bargaining for an agreement that might purport to cover him alone, which may be in contravention of s.172(6) of the Act, which provides that an enterprise agreement cannot be made with a single employee. The Applicant clarified that he was not, and that he was engaged in bargaining for a replacement to the Agreement referred to above, which would cover a large number of employees of the Australian Taxation Office. Such clarification by the Applicant removes the concern I originally held.

[10] The concerns raised by the Australian Taxation Office were related to who he represented in bargaining; whether he was genuinely trying to reach agreement; and whether certain of the questions originally proposed by the Applicant were permissible. The hearing resulted in the Applicant withdrawing certain of his proposed questions and indicating a preparedness to consider the content of another; and the Australian Taxation Office advising, that in light of the matters discussed in the hearing, it did not pursue an objection that Mr Dale was not genuinely trying to reach agreement. While that is the case, the Australian Taxation Office has specifically noted to me that it resists Mr Dale’s characterisation of its conduct and that of one its managers in particular. I note their submissions and make no conclusions about the conduct referred to by Mr Dale.

[11] In the course of the hearing, Directions were issued by the Commission for Mr Dale to provide an amended Draft Order and other material in support of his application, and to serve the same on the Australian Taxation Office, as the Respondent, and the Australian Electoral Commission, in accordance with the obligation in s.440(b). I am satisfied the Directions have been complied with.

[12] While an application for a protected action ballot order in relation to a group comprised of one individual is novel, it appears not to be contrary to the Act, and not a unique application. The Australian Taxation Office referred me to a precedent in which an order was expressed to relate to an individual. 2

[13] After consideration of all the materials before me in this matter, I consider that the application is valid and that the Order proposed by the Applicant may be made.

[14] 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. Mr Dale has filed evidence of the steps taken by him to bargain and his involvement in bargaining to date. Nothing within that material causes me to form a view that the Mr Dale is not genuinely trying to reach an agreement with the employer.

[15] Further, it is appropriate to note the obligation on the Commission in s.441 of the Act to determine a protected action ballot order application within 2 working days after the application is made. The application was made at 8:53 PM AEST on Wednesday, 12 August 2015, and the hearing convened shortly after 1:15 PM AEST on Friday, 14 August 2015. As a result of the circumstances of the matter, which included that a Draft Order had not been filed by the Applicant and that the Australian Electoral Commission had not been served as required, I considered it to be impracticable to determine the application within the specified time period, without allowing a short further period of time for the Applicant to remedy the problems in his application.

[16] 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 Mr Dale. An Order consistent with his amended application will be issued at the same time as this decision.

COMMISSIONER

Appearances:

Mr P Dale on his own behalf

Mr T Pick (solicitor) for the Australian Taxation Office

Hearing details:

2015:

Hobart (video link to Adelaide, Melbourne & Canberra)

14 August

 1   AE889771

 2   Mr Samuel Streeter v BHP Coal Pty Ltd, PR510636

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