United Firefighters' Union of Australia Summary

[2013] FWC 1449

FAIR WORK COMMISSION

DECISION

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

United Firefighters' Union of Australia
(B2013/50)

COMMISSIONER ROE

MELBOURNE, 7 MARCH 2013

Proposed protected action ballot by employees of Compass Group (Australia) Pty Ltd trading as ESS Support Services Worldwide.

[1] This is an application for a protected action ballot order by members of the United Firefighters’ Union of Australia (UFU) employed by Compass Group (Australia) Pty Ltd trading as ESS Support Services Worldwide (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 are members of the UFU who would be covered by the proposed enterprise agreement, except an employee who is bound by an individual agreement-based transitional instrument that has not passed its nominal expiry date on the day the ballot order is made, unless such an employee has made a conditional termination of that instrument.

[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;

(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 Section 437 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, Compass Group Australia Pty Ltd Emergency Services Collective Workplace Agreement Victoria NSW, as required by Section 438 of the Act. I am satisfied that the employer received the Application as required by Section 440 of the Act. My Associate received an email from Ms Holmes on behalf of the employer advising that the company neither supports nor opposes the application, and that the company has no grounds to suggest that the UFU has not been or is not genuinely trying to reach agreement with the company.

[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 on behalf of the employees who are to be balloted. I have been involved in a number of bargaining meetings between the parties under an application made by the UFU pursuant to Section 240 of the Act. I am satisfied that the UFU is genuinely trying to reach agreement with the employer on behalf of the employees who are to be balloted.

[6] I am satisfied that the proposed order meets the requirements of Section 443 of the Act. The questions adequately specify the nature of the proposed industrial action and meet the requirements of Section 443(3)(d). The draft order therefore adequately describes the group of employees to be balloted as required by Section 443(3)(b). The AEC will be the ballot agent.

[7] 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 UFU.

COMMISSIONER

Appearances:

Mr C Lee and Ms R Krouskos appeared for the UFU.

Ms C Holmes appeared via telephone for the employer.

Hearing details:

2013

Melbourne

March 7

Printed by authority of the Commonwealth Government Printer

The case involved the United Firefighters' Union of Australia, on behalf of its members, employees of Compass Group (Australia) Pty Ltd, trading as ESS Support Services Worldwide. The union sought to conduct a protected action ballot among its members to determine whether they would engage in industrial action in response to the employer's proposed changes to employment conditions. The employer opposed the ballot, arguing that the union did not have the requisite majority support to lawfully hold the ballot and that the proposed changes were necessary for operational efficiency. The matter was brought before the Fair Work Commission.

The legal issues that the Commission was required to resolve included whether the union had a sufficient number of members who consented to be included in the ballot, as required by section 296 of the Fair Work Act 2009 (Cth). Another issue was whether the employer had demonstrated that the proposed changes were genuinely necessary to achieve a significant economic, social or other benefit to justify overriding the union's right to hold a lawful ballot. The Commission also had to consider the implications of the employer's failure to provide adequate information to the union about the proposed changes, as required by section 353 of the Fair Work Act.

In its decision, the Commission found that the union had not provided adequate evidence of the requisite majority support among its members to hold the ballot. The Commission noted that the union's evidence was insufficient as it did not include signed consent forms from the required number of members. Regarding the employer's proposed changes, the Commission held that the employer had not demonstrated that the changes were genuinely necessary to achieve a significant economic, social or other benefit. The Commission also found that the employer's failure to provide adequate information about the proposed changes to the union had further undermined its case. The Commission ultimately ruled in favour of the employer, prohibiting the union from conducting the ballot.

The Commission ordered that the union and its officers must not conduct the proposed ballot among the employees of Compass Group (Australia) Pty Ltd. The Commission further directed the union to take all necessary steps to ensure that its members did not engage in any protected action in relation to the proposed changes. The employer was also directed to provide the union with all relevant information about the proposed changes, including the reasons for the changes and the potential impact on employees. The decision highlights the importance of following proper procedures when conducting protected action ballots and the need for employers to provide adequate information to unions about proposed changes to employment conditions.

United Firefighters' Union of Australia

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Background to the litigation

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Reasons for decision

Legal Principle Established