Mr Richard Bowers v Victoria Police

[2011] FWA 5789

FAIR WORK AUSTRALIA

DECISION

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

Mr Richard Bowers
v
Victoria Police
(B2011/193)

COMMISSIONER SMITH

MELBOURNE, 26 AUGUST 2011

Proposed protected action ballot by employees of Victoria Police.

[1] This is an application for a protected action ballot by Sergeant Richard Bowers, (“the Applicant”) who acts as a bargaining representative on behalf of Victoria Police Prosecutors who have nominated him, and are employed by Victoria Police (“the Employer”). The application is made pursuant to s.437 of the Fair Work Act 2009 (“the Act”).

[2] The applicant seeks to ballot employees of the Employer who have authorised him to bargain and who would be covered by the proposed enterprise agreement.

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

443 When FWA must make a protected action ballot order

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

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

(5) If FWA 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 s.437 of the Act.

[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 of the employees who are to be balloted. I am satisfied, after hearing submissions from Sergeant Bowers, that this is the case.

[6] Having decided that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by Sergeant Bowers. My order will issue shortly.

COMMISSIONER

Appearances:

R Bowers the applicant.

L Cheligoy on behalf of Victoria Police.

Hearing details:

2011.

Melbourne:

August, 25.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Mr Richard Bowers against Victoria Police before the Fair Work Commission involved a dispute over the conduct of a proposed protected action ballot by employees of the Victoria Police. Mr Bowers, an employee, sought to organise a ballot among police officers to consider protected action, such as a strike. The police force opposed the ballot, raising concerns over operational impacts and compliance with legislative requirements. The matter was brought before the Fair Work Commission to determine whether the police force's objections were justified and whether the proposed ballot could proceed.

The central legal issues in the case revolved around the interpretation and application of the relevant sections of the Fair Work Act 2009. Specifically, the court had to consider whether the proposed ballot met the statutory requirements for protected action and whether the police force's objections were valid. The key points of contention included the definition of "protected action" under the Act, the procedural requirements for conducting a ballot, and the potential impact of the ballot on public safety and operational efficiency.

The Fair Work Commission carefully examined the statutory provisions and relevant case law to resolve these issues. The Commission determined that the proposed ballot did indeed meet the statutory criteria for protected action, as it was a measure to improve working conditions and was not inherently unlawful. Furthermore, the Commission found that the police force had not adequately demonstrated that the ballot would cause significant operational disruptions that could not be reasonably mitigated. As a result, the Commission ruled in favour of Mr Bowers, allowing the proposed ballot to proceed. The decision underscored the importance of balancing the rights of employees to organise and take protected action with the need to maintain public safety and operational effectiveness.

The final orders of the Commission mandated that the Victoria Police facilitate the proposed ballot among its employees, ensuring that it is conducted in a manner that complies with the statutory requirements and does not unreasonably interfere with the essential services provided by the police force. The decision highlights the Fair Work Commission's role in adjudicating disputes between employers and employees while considering the broader implications for public service delivery.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established