National Union of Workers v Metropolitan Fire and Emergency Services Board
[2011] FWA 4690
•19 JULY 2011
[2011] FWA 4690 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
National Union of Workers
v
Metropolitan Fire and Emergency Services Board
(B2011/3147)
COMMISSIONER ROE | MELBOURNE, 19 JULY 2011 |
Proposed protected action ballot by employees of Metropolitan Fire and Emergency Service Board.
[1] This is an application for a protected action ballot by members of the National Union of Workers (NUW) employed by Metropolitan Fire and Emergency Services Board (MFB). The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act). The Application was made in the afternoon of Friday 15 July 2011 and was determined on 19 July 2011.
[2] The matter was heard on 19 July 2011. Ms E Masters appeared for the Applicant and Mr Sean Hogan assisted by Mr Aaron Hogan appeared for the MFB.
[3] The applicant seeks to ballot employees of MFB who would be subject to a proposed enterprise agreement and who are members of the NUW
[4] 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.”
[5] To begin, I am satisfied that the Application has been made in accordance with s.437 of the Act. I am satisfied that the Application was served upon the Respondent and the AEC as the ballot agent as required by Section 440 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, the Metropolitan Fire & Emergency Services Board Administrative & Operational Support Staff Agreement 2005, as required by Section 438 of the Act. The current Agreement has a nominal expiry date of 30 June 2011.
[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 on behalf of the employees who are to be balloted. I am satisfied, after hearing submissions from the NUW that this is in fact the case. The MFB agreed that the NUW are genuinely trying to reach an agreement.
[7] I am satisfied that the questions adequately specify the nature of the proposed industrial action and meet the requirements of Section 443(3)(d). The scope of the Agreement sought by the NUW adequately describes the group of employees to be balloted as required by Section 443(3)(b). The AEC will be the ballot agent.
[8] Having decided that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the NUW. At the conclusion of the proceedings I advised the parties that I would issue the Order. I have published that Order separately.
[9] MFB made application for the inclusion in the Order of a requirement pursuant to Section 443(5) that the period of written notice prior to taking the action specified in the ballot questions should be 7 days rather than the standard requirement for 3 days notice as specified in Section 414(1). The MFB made a similar application in respect to the protected action ballot order involving the AMWU which was heard on 14 July 2011. 1 The NUW members subject to this ballot work at the same facility as the AMWU members subject to the earlier decision and are covered by the same Agreement.
[10] The NUW indicated that they did not object to the longer notice period included in the order in respect to the AMWU. That order only applied to one of the actions proposed namely “a ban on any work performed at the roadside with regard to servicing vehicles.” This action is question 8 in the NUW draft order. The arguments in support of a longer notice period in respect of this action are the same as they were in respect to the AMWU.
[11] The MFB submitted that the NUW members are involved in the delivery of parts to the Thornbury maintenance depot for use in the repair and maintenance of the emergency service vehicles and equipment. The NUW members are also involved in the delivery of personal protective equipment for use by firefighters. The MFB submitted that stoppages, particularly stoppages which were longer than 8 hours, could disrupt this important work and that the MFB may require more than three days notice to adequately respond. The NUW did not support an extended notice. It was not obvious to me why appropriate responses could not be put in place by the MFB within the normal three day notice period. I indicated this to the parties. I gave the MFB the opportunity to provide further evidence at a later date which would also be subject to response from the NUW but the MFB indicated that they were prepared to accept my decision in this matter.
[12] For the reasons outlined in my decision in respect to the AMWU application, I am satisfied that there was insufficient evidence presented that the industrial action specified in the Questions in the Ballot order created an exceptional circumstance that would justify a longer notice period except for the proposed ban on roadside work. I am not satisfied that the industrial action proposed apart from the roadside bans creates an exceptional circumstance or even if they did that a longer notice period is justified.
[13] I am satisfied that if the submissions of the MFB were to be established then it would be an exceptional circumstance and further that additional notice time would be likely to reduce the risks to public and other employee safety which might result from this form of industrial action.
[14] The parties agreed that I should vary the Order made in respect to the protected action ballot to provide that in respect to the action proposed “a ban on any work performed at the roadside with regard to servicing vehicles” the period of notice required to be given be extended from three working days to seven working days.
[15] For the reasons outlined in my decision in respect to the AMWU I am prepared to order a longer notice period in respect to that proposed action. I do not regard the exceptional circumstances required to have been made out in respect to the other proposed forms of industrial action. The standard three day notice period will continue to apply to the other proposed forms of industrial action.
COMMISSIONER
Appearances:
Ms E Masters appeared for the Applicant.
Mr Sean Hogan assisted by Mr Aaron Hogan appeared for the MFB.
Hearing details:
2011
Melbourne
July 19
1 [2011] FWA 4541.
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