United Firefighters' Union of Australia v Country Fire Authority Summary

[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.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case of United Firefighters' Union of Australia v Country Fire Authority was brought before the Fair Work Commission. The dispute arose between the union, representing the employees of the Country Fire Authority, and the Authority itself over a proposed industrial action ballot. The union sought to conduct a protected action ballot among its members, which would allow for a potential strike or other industrial action if certain conditions were met. The Country Fire Authority opposed the ballot, arguing that it was not in the public interest to permit such action by its employees.

The central legal issue before the Commission was whether the proposed industrial action ballot could proceed, considering the potential impact on public safety and the provision of essential services. The Commission had to balance the union's right to organise and engage in protected industrial action against the potential harm to the public, particularly in relation to emergency services. The Commission examined the nature of the Country Fire Authority's services, the potential consequences of industrial action, and the steps that could be taken to mitigate any adverse effects.

The Fair Work Commission concluded that the proposed industrial action ballot could proceed, but with certain conditions to safeguard public safety. The Commission found that while the union had a legitimate right to organise and engage in protected action, the potential impact on the provision of emergency services required stringent conditions to protect public safety. The Commission imposed conditions on the timing, scope, and notice requirements for any subsequent industrial action, ensuring that essential services would not be unduly disrupted. The Country Fire Authority was also directed to take steps to mitigate the impact of any industrial action, such as maintaining a minimum level of staffing during critical periods.

The Commission's final order was that the union could proceed with the ballot, subject to the imposed conditions. The Authority was directed to facilitate the ballot in accordance with the Fair Work Act and to take all reasonable steps to ensure that any industrial action that may result from the ballot does not unduly impact public safety and the provision of essential services. The union was required to comply with the imposed conditions and to provide the Authority with the necessary information to allow for effective planning and mitigation of any industrial action.

United Firefighters' Union of Australia v Country Fire Authority

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established