United Firefighters' Union of Australia v Fire Rescue Victoria T/A Fire Rescue Victoria (“FRV”)

[2024] FWC 2582

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Firefighters' Union of Australia
v

Fire Rescue Victoria T/A Fire Rescue Victoria (“FRV”)

(B2024/1229)

COMMISSIONER ALLISON

MELBOURNE, 19 SEPTEMBER 2024

Proposed protected action ballot of employees of Fire Rescue Victoria Trading As Fire Rescue Victoria (“FRV”)

This is an application by the United Firefighters’ Union of Australia (UFUA or 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 (FRV or Employer).

On 18 September 2024, FRV notified the Commission that it objected to the application on grounds that the wording of specific questions sought to be included in the ballot lacked “sufficient detail, clarity and/or meaning”. I convened a Conference on 18 September 2024 and listed the matter for Hearing on 19 September 2024.

At the commencement of the Hearing, the parties advised that they had reached agreement on the issues in dispute. The Applicant proceeded to file and serve an amended application. The Respondent has confirmed its agreement of the amended application. In light of the parties’ consent position, I have decided to determine the matter on the papers.

On the basis of the material before me - including the declaration of Georgia Barendse, Industrial Legal Officer, setting out the steps taken by the UFUA in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with FRV - I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 8 October 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR779423.

I will proceed to conduct a s.448A compulsory conciliation conference. I will shortly issue an Order requiring the attendance of all bargaining representatives for the proposed enterprise agreement at the conference.

COMMISSIONER

Appearances:

M Sayers for the Applicant
L Albiston for the Respondent

[1] This is, in effect, twelve (12) working days from the date of the Order, as sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Firefighters' Union of Australia (UFUA) has applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of Fire Rescue Victoria Trading As Fire Rescue Victoria (FRV). The UFUA sought to conduct a ballot to determine the employees' support for protected industrial action. FRV initially objected to the application, arguing that the questions proposed for the ballot lacked sufficient detail, clarity, and meaning. However, during the hearing, the parties reached an agreement on the issues in dispute, leading to the filing of an amended application with the consent of both parties.

The legal issues before the Commission were whether the UFUA had met the notification time requirements and other statutory conditions for conducting a protected action ballot. The Commission needed to consider the evidence of the UFUA's genuine attempts to reach an agreement with FRV and whether the ballot agent, Democratic Outcomes Pty Ltd T/A CiVS (CiVS), was eligible and authorised to conduct the ballot. The Commission also had to determine an appropriate closing date for the voting period to ensure compliance with the Act.

The Commission concluded that the UFUA had satisfied the notification time requirements and had genuinely attempted to reach an agreement with FRV. CiVS was approved as a ballot agent under section 468A of the Act. The Commission set the closing date for voting at 8 October 2024, which corresponds to twelve working days from the date of the Order. The Commission also decided to conduct a compulsory conciliation conference under section 448A of the Act, requiring the attendance of all bargaining representatives for the proposed enterprise agreement.

The Commission issued an Order determining the closing date for the voting period and directing the holding of a compulsory conciliation conference. The Commission's decision was based on the consent of the parties and the statutory requirements set out in the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established