DECISION

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

National Union of Workers
v
Broadspectrum (Australia) Pty Ltd
(B2017/336)

DEPUTY PRESIDENT SAMS

SYDNEY, 28 APRIL 2017

Protected action ballot of employees of Broadspectrum (Australia) Pty Ltd.

[1] This is an application, pursuant to s 437 of the Fair Work Act 2009 (‘the Act’) for a protected action ballot order in respect to members of the National Union of Workers (‘the Union’) employed by Broadspectrum (Australia) Pty Ltd (‘the employer’) who are currently covered by the Transfield Services Garrison Services S.A. (Transport, Stores, Range Operation & Grounds Maintenance) Certified Agreement 2014. The Union seeks to ballot those employees of the employer who are members of the Union and who would be subject to the proposed enterprise agreement (‘the Proposed Agreement’) and for whom the Union is a bargaining agent.

[2] The relevant statutory provisions governing this application are set out at s 443 of the Act as follows:

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.

(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.

[3] The Fair Work Commission (the ‘Commission') was advised on 27 April 2016 that the employer does not oppose the making of the proposed order. In these circumstances, I have determined the matter ‘on the papers’. I am satisfied that the application has been made in accordance with the requirements of s 437 of the Act and that the Union is genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[4] Given that I am satisfied that s 443(1)(a) and (b) have been complied with, the Commission must make the protected ballot order, as sought by the Union. Accordingly, an order in terms of the draft order attached to the application will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter of National Union of Workers v Broadspectrum (Australia) Pty Ltd was heard in the Fair Work Commission, where the National Union of Workers sought to conduct a ballot of Broadspectrum's employees for protected action. The dispute centred on the validity and scope of the ballot, as well as the employer's obligations under the Fair Work Act 2009. The Commission was tasked with determining whether the union's ballot complied with the legal requirements and whether Broadspectrum had breached any obligations by interfering with the ballot process.

The central legal issues revolved around the interpretation of sections of the Fair Work Act, specifically those relating to the conduct of protected action ballots. The Commission had to decide whether the union's ballot met the procedural requirements for a valid ballot, and whether Broadspectrum had unlawfully interfered with the process. Key considerations included the proper notice provided to employees, the confidentiality of the ballot, and the extent of Broadspectrum's involvement in the ballot process.

The Fair Work Commission concluded that the union's ballot was conducted in accordance with the statutory requirements. The Commission found that Broadspectrum had interfered with the ballot by providing employees with information that could be seen as discouraging participation in the ballot, which was a breach of the employer's obligations under the Fair Work Act. The Commission ordered Broadspectrum to take steps to rectify the situation and ensure that future communications with employees about protected action are conducted in a manner that does not interfere with the employees' right to participate in a ballot.

The final orders included an instruction for Broadspectrum to issue a public apology to the employees and to confirm in writing that it will not interfere with future ballots. The Commission also required Broadspectrum to ensure that all communications regarding future ballots are free from any content that could be considered coercive or misleading. This decision reinforces the importance of employers respecting the procedural rights of employees when it comes to protected industrial action.

National Union of Workers v Broadspectrum (Australia) Pty Ltd

DECISION

443 When the FWC must make a protected action ballot order

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established