The Community and Public Sector Union & SPSF Group & Western Australian Prison Officers Union Branch v Serco Australia Pty Ltd

[2022] FWC 848

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

The Community and Public Sector Union & SPSF Group & Western Australian Prison Officers Union Branch

Serco Australia Pty Ltd

(B2022/298)

VICE PRESIDENT CATANZARITI

BRISBANE, 12 APRIL 2022

Proposed protected action ballot of employees of Serco Australia Pty Ltd

This is an application by the Community and Public Sector Union & SPSF Group & Western Australian Prison Officers Union Branch (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Serco Australia Pty Ltd (Respondent).

On 12 April 2022, the Fair Work Commission was advised that the Respondent did not oppose the application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the statutory declaration of Beven Hanlon of the Applicant declared on 11 April 2022, setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

An Order has been separately issued in PR740314.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission recently adjudicated on an application by the Community and Public Sector Union, SPSF Group, and Western Australian Prison Officers Union Branch, collectively referred to as the Applicant, seeking a protected action ballot order against Serco Australia Pty Ltd, the Respondent. The application, made under section 437 of the Fair Work Act 2009, concerns a proposed ballot for certain employees of Serco Australia Pty Ltd to engage in protected industrial action. The Respondent did not oppose the application, prompting the Vice President to determine the matter based on the submitted documentation without the need for a hearing.

The primary legal issue before the Vice President was whether the statutory requirements for a protected action ballot had been met. Specifically, the Vice President had to assess if the notification time for the proposed agreement was valid and if the Applicant had genuinely attempted to negotiate with the Respondent in accordance with section 443(1) of the Fair Work Act. This section mandates that a union must provide a reasonable notification period for the proposed agreement and demonstrate genuine efforts to negotiate with the employer.

The Vice President concluded that the statutory declaration provided by Beven Hanlon of the Applicant, dated 11 April 2022, sufficiently demonstrated the union's adherence to the notification period and its genuine attempts to reach an agreement with the Respondent. Given these findings, the Vice President was satisfied that the conditions for a protected action ballot were met, and an order was issued accordingly. The decision highlights the importance of unions following proper procedural steps and engaging in good faith negotiations when seeking to organise protected industrial action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established