United Firefighters' Union of Australia v Metropolitan Fire & Emergency Services Board

[2015] FWC 5184

[2015] FWC 5184

FAIR WORK COMMISSION

DECISION

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

United Firefighters' Union of Australia
v
Metropolitan Fire & Emergency Services Board
(B2015/765)

Fire fighting services
COMMISSIONER WILSON	MELBOURNE, 29 JULY 2015

Proposed protected action ballot of employees of Metropolitan Fire & Emergency Services Board.

Application

[1] This is an application for a protected action ballot order by members of the United Firefighters Union of Australia – Victoria Branch (UFU) employed by the Metropolitan Fire and Emergency Services Board (MFB) and whose employment is presently covered by two agreements, namely;

• Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Assistant Chief Fire Officers Agreement 2010, 1 the nominal expiry date of which was 30 September 2013; and



• Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2010, 2 the nominal expiry date of which was 30 September 2013.

[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 of the MFB who will be covered by a single proposed enterprise agreement and for whom the UFU is their bargaining representative. The group of employees to be balloted is described in the Applicant’s proposed draft order as being the following;

“Recruit Firefighters, Firefighters Level 1, Firefighters Level 2, Firefighters Level 3, Qualified Firefighters, Senior Firefighters, Leading Firefighters, Station Officers, Senior Station Officers, Fire Service Communications Controllers, Commanders and Assistant Chief Officers who are represented by the United Firefighters Union and who are employees of the Respondent in this application.”

[4] The material filed in this application by the UFU advises that it is a bargaining representative for the purposes of s.176(1).

[5] In the course of the hearing, the UFU tendered an amended question for consideration by employees, which comprises a single proposed question for those being balloted to either vote for or against. The proposed question contains 19 elements.

Threshold requirements

[6] In considering this matter I must apply s.443 of the Act which provides when the Fair Work Commission must make a protected action ballot order.

[7] To begin, I am satisfied that the application has been made in accordance with s.437 of the Act. The section requires that the Applicant is a bargaining representative, and I am satisfied that is the case (s.437(1)). The section also requires the application specify the group or groups of employees who are to be balloted (s.437(3)(a)). I am satisfied that this criterion has also been met by the Applicant.

[8] Section 437(3)(b) requires the application to specify the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action. The application made by the UFU proposes a single question with 19 elements, to which balloted employees are required to indicate either “yes” or “no” to the proposition;

“In support of reaching an Enterprise Agreement with your employer the Metropolitan Fire & Emergency Services Board do you wish to engage in protected industrial action against your employer separately, concurrently and/or consecutively in the form of ...”

[9] I note the requirement of s.438 to the effect that an application for a protected action ballot order must not be made earlier than 30 days before the nominal expiry date of the enterprise agreement and I am satisfied that such obligation is not contravened.

Consideration

[10] In order to be protected, industrial action must be authorised by a protected action ballot. 3 The principles to be followed by the Commission in determining whether the questions to be put to balloted employees are permissible are well settled. The Full Bench has held that all that s.437 requires is that the questions in a proposed order should describe the industrial action in such a way that employees are capable of responding to them.4

[11] The UFU’s amended proposed question was informed by certain comments made by the MFB about the original proposal. After the tabling of the amended question, a single objection of the MFB remained, which was to the terms of the amended item 8, which provides the following;

“In support of reaching an Enterprise Agreement with your employer the Metropolitan Fire & Emergency Services Board do you wish to engage in protected industrial action against your employer separately, concurrently and/or consecutively in the form of:

…

8. A ban on creating a record of any employee’s participation in protected industrial action;

…”

[12] The MFB’s argument in this respect is that refusing to create a record of participation in protected industrial action is not capable of constituting protected industrial action. The UFU put forward correspondence from an MFB manager in 2013 that directed employees to record their involvement in certain work stoppages. 5

[13] The preamble to the proposed question creates the context of whether the employee wishes to engage in protected industrial action against the MFB “separately, concurrently and/or consecutively” and provides precision within the item itself that the ban is upon the creation of a record, with that record pertaining to any employee’s participation in protected industrial action. In relation to the permissibility of the question, s.19 of the Act defines the meaning of “industrial action”, with it being held that;

• for the action to fall within s.19(1)(a), going to the performance of work in a manner different to custom, “the conduct must cause a particular result, namely a restriction or limitation on, or a delay in the performance of work”; 6 and



• s.19(1)(b), which deals with bans, limitations or restrictions on the performance or acceptance of work, is “directed to both the work the employees do and the circumstances in which they offer to do it”. 7

[14] I am satisfied that the proposed item both refers to industrial action as defined, and that it is specific enough for employees to be capable of responding. 8 I am also satisfied that the later notification of the proposed protected industrial action in accordance with the Act will inform both employees and the MFB as to what is proposed to be done.

[15] After consideration of all the materials before me in this matter and with reference to the earlier decisions of the Commission, I consider that the application made by the UFU and the question to be put to the employees to be balloted sufficiently describes the particular industrial action. I find that the proposed question is not so wide or vague as to not be capable of being understood by those called upon to vote in relation to the question.

Exceptional circumstances

[16] Pursuant to s.443(5) of the Act, if the Commission is satisfied that there are exceptional circumstances justifying the period of written notice to be longer than three working days, the protected action ballot order may specify a period of up to seven working days.

[17] In this regard I note that the MFB has not sought an extended period of notice for the taking of industrial action as contemplated by s.443(5) of the Act.

Order

[18] An order consistent with my reasoning above was issued by the Commission on 29 July 2015. 9

COMMISSIONER

Appearances:

Mr M Harding (of counsel) for the UFU

Mr J Tuck (solicitor) for the CFA

Hearing details:

2015.

Melbourne:

28 July

 1   AE881004

 2   AE881005

 3   John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union[2010] FWAFB 526, (2010) 194 IR 239, at [14]

 4   Ibid, at [19]; see also Re: Mornington Peninsula Shire Council[2011] FWAFB 4809, at [40]

 5   Exhibit A3

 6   Re Mornington Peninsula Shire Council[2011] FWAFB 4809210 IR 419, at [26]

 7   Ibid, at [30]

 8   John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union[2010] FWAFB 526, (2010) 194 IR 239, at [19]

 9   PR569910

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<Price code C,  PR569960>