United Firefighters' Union of Australia v Country Fire Authority

[2013] FWC 9656

[2013] FWC 9656

FAIR WORK COMMISSION

DECISION

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

United Firefighters' Union of Australia
v
Country Fire Authority
(B2013/1553)

COMMISSIONER WILSON MELBOURNE, 9 DECEMBER 2013

Proposed protected action ballot by employees of Country Fire Authority.

[1] This is an application for a protected action ballot order by United Firefighters’ Union of Australia (“UFU”) employed by the Country Fire Authority (“CFA”).

[2] The application is made pursuant to s.437 of the Fair Work Act 2009 (“the Act”).

[3] The Applicant seeks to ballot all employees employed by the CFA, who will be covered by the proposed enterprise agreement covering CFA District Mechanical Officers and Tower Overseers, and for whom the UFU is their bargaining representative or who are members of the UFU.

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

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.

(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.

(5) If the FWC 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.

[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 of the employees who are to be balloted. In this matter, the UFU has filed evidence of the steps taken by the union to bargain and the progress of the bargaining to date. The CFA does not oppose the granting of the order, however they provided certain views in correspondence to my Chambers that could give rise to a view the CFA questioned the extent to which the UFU was genuinely trying to reach an agreement. As a result of the CFA recording its views, the UFU was invited to provide further material for my consideration of the criteria within section 443 of the Act, and subsequently did so. As a result of the provision of this further information, I am satisfied the UFU is genuinely trying to reach agreement and as a result the application meets the statutory criteria.

[7] The correspondence from the CFA to my Chambers dated 6 December 2013 identified two additional matters with the UFU’s application to be drawn to the attention of the Commission. The first relates to the details provided in the application of the group or groups of employees to be balloted. The CFA claim that the description is too broad and could cover other employees of the CFA who are not covered by the proposed agreement. On 9 December 2013, the UFU emailed my Chambers an amended description of the group of employees to be balloted, which more specifically identified the relevant employees to be covered. Dr Graham Smith for the CFA subsequently advised my Associate by phone that the CFA is satisfied with the amended description.

[8] The second matter identified by the CFA concerns the date by which the ballot would close. The UFU seeks the closing date for the ballot to be 20 days from the date of the order issued. The CFA seeks the closing date for the ballot to be 30 days from the date of the order issued due to the coming festive season. I am satisfied that a period of 30 days in consistent with the requirements of s.443(3A) of the Act.

[9] Having decided all of these matters and that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by UFU.

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