United Firefighters' Union of Australia v Fire Rescue Victoria Summary

[2022] FWC 1765

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Firefighters’ Union of Australia
v

Fire Rescue Victoria

(B2022/653)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 7 JULY 2022

Proposed protected action ballot of employees of Fire Rescue Victoria.

This is an application by the United Firefighters’ Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Fire Rescue Victoria (the Respondent).

On 6 July 2022, my Associate was advised that the Respondent did not object to 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 declaration of Mr Peter Marshall of the Applicant 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.

The Applicant also sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is Democratic Outcomes Pty Ltd trading as CiVS (CiVS). Mr Michael M Michael, the Managing Director of CiVs has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS, and that he has relevant experience in conducting protected action ballots. I am satisfied that CiVS is a fit and proper person to conduct the ballot. I am also satisfied that Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVs has agreed to be the protected action ballot agent and Mr Michael and CiVS are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

Therefore I appoint CiVS as the protected action ballot agent.

An order has been separately issued in PR743550.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Firefighters’ Union of Australia (Applicant) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Fire Rescue Victoria (the Respondent). The application was made on the basis that the Applicant had been genuinely trying to reach an agreement with the Respondent but had been unable to do so, and that the notification time in relation to the proposed agreement had elapsed. The Respondent did not object to the application, and the matter was determined on the papers without a hearing. The Fair Work Commission was required to decide whether the Applicant had satisfied the requirements for a protected action ballot order, and whether the proposed ballot agent, Democratic Outcomes Pty Ltd trading as CiVS (CiVS), was a fit and proper person to conduct the ballot.

The Fair Work Commission found that the Applicant had satisfied the requirements for a protected action ballot order, including the notification time in relation to the proposed agreement, and that the Applicant had been genuinely trying to reach an agreement with the Respondent. The Commission also found that CiVS was a fit and proper person to conduct the ballot, as the Managing Director of CiVS, Mr Michael M Michael, had relevant experience in conducting protected action ballots and had provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS. The Commission was satisfied that CiVS was capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously.

The Fair Work Commission appointed CiVS as the protected action ballot agent, and noted that CiVS had agreed to be bound by the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot. An order was separately issued in PR743550. This decision provides guidance on the requirements for a protected action ballot order under the Fair Work Act 2009, and the considerations that the Fair Work Commission takes into account in appointing a ballot agent.

United Firefighters' Union of Australia v Fire Rescue Victoria

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established