United Firefighters' Union of Australia v Norfolk Island Regional Council T/A Norfolk Island Fire Service

[2024] FWC 676

[2024] FWC 676

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Firefighters' Union of Australia
v

Norfolk Island Regional Council T/A Norfolk Island Fire Service

(B2024/214)

COMMISSIONER P RYAN SYDNEY, 14 MARCH 2024

Proposed protected action ballot of employees of Norfolk Island Regional Council

1. This decision concerns an application by the United Firefighters’ Union of Australia (UFUA/Applicant) made on 12 March 2024 pursuant to s.437 of the Fair Work Act 2009 (Cth) (FW Act) for a protected action ballot order in relation to certain employees of Norfolk Island Regional Council (Respondent).

1. In accordance with Rule 31 of the Fair Work Commission Rules 2013, the application was accompanied by a Form F34B Declaration of Daniel Murphy, UFUA Senior Industrial Officer, and a draft order. 

1. In the application and declaration, Mr Murphy stated that the UFUA is a bargaining representative of an employee who will be covered by the proposed enterprise agreement and that there has been a notification time in relation to the proposed enterprise agreement. Mr Murphy also set out a chronology of bargaining meetings and events that have taken place between 5 December 2022 to 29 January 2024, in support that it has been genuinely trying to reach agreement with the Respondent.

1. On 13 March 2024, the Respondent sent correspondence to the Fair Work Commission (Commission) stating that it objected to the application.

1. On 14 March 2024, the matter was allocated to my Chambers and was listed for conference at 4:00pm that day. Mr Murphy appeared for the Applicant. The Respondent was represented by Mr Paul Martin, the Respondent’s Manager – Corporate and Finance.

1. During the conference, the Respondent confirmed that its objection related to the potential impact of any protected industrial action taken rather than whether the requirements of s.443 of the FW Act have been met.

1. In its correspondence of 13 March 2023, the Respondent stated that the potential impacts of industrial action included hindering aircraft landings and flight invoicing, bans on conducting fire extinguisher maintenance, and invoicing for fire checks, fire extinguisher inspections. The Respondent stated these matters would have a significant financial impact upon it, and the broader Norfolk Island economy, and pose a health and safety risk.

1. The Respondent agreed that the UFUA is a bargaining representative of an employee who will be covered by the proposed enterprise agreement, that there has been a notification time in relation to the proposed enterprise agreement and that the UFUA is genuinely trying to reach an agreement with the Respondent. 

1. In response to the Respondent’s concerns, the UFUA agreed to a safety undertaking in the following terms, which has also been added to the Order:

SAFETY UNDERTAKING

1. Noting that the UFUA wishes to ensure the action taken by members does not compromise public safety, the UFUA, in implementing any of the protected industrial action described in the questions above, undertakes that:

   X.1 proposed industrial action is not intended in any way to adversely impact public safety of the Norfolk Island community;

   X.2 UFUA members will be advised in writing that no industrial action is to be undertaken that will in any way adversely impact public safety of the Norfolk Island community

1. The UFUA also agreed to withdraw questions 2, 3, 4, and 5 of the draft order and to an extended notice period of industrial action in relation to questions 1, 6, 7, 14 and 15 of the draft order.

1. In response to the matters set out at paragraphs [9] and [10] above, the Respondent withdrew its objection and consented to the making of the Order.

1. Having regard to the material before me, including the declaration of Mr Murphy, and the submissions of the parties during the Conference, I am satisfied:

·The application has been made a bargaining representative of an employee who will be covered by the proposed enterprise agreement (s.437(1));

·There has been a notification time (s.4372A));

·The Applicant has been, and is, genuinely trying to reach an agreement with the Respondent (s.443(1)(b)); and

·That all of the requirements in s.443(1) have been met.

1. The ballot is to be conducted by TrueVote Pty Ltd (TrueVote). TrueVote has been approved as an eligible protected action ballot agent under s.468A of the FW Act[1], and consequently is authorised to conduct the ballot.

1. For the purposes of s.443(3)(c) of the FW Act, the Commission has determined that the date by which voting is to close is seven (7) days after the Commencement Date. This also establishes the ballot period for the purpose of s.448A(2) of the FW Act.

1. I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of written notice for the purposes of s.414(2)(b) of the FW Act when taking certain industrial action set out in the Order made by the Commission. The extended notice period of 7 days applies to questions 1, 2, 3, 10 and 11.[2] All other questions have the default 3-day notice period.

1. An Order has been issued in PR772376.

1. This matter will be listed for a s.448A compulsory conciliation conference. An Order will be issued requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

COMMISSIONER

Appearances:

Mr D Murphy for the United Firefighters’ Union of Australia.
Mr P Martin for the Norfolk Island Regional Council.

Conference details:

2024.
Sydney (via Microsoft Teams video-link):
14 March.

<PR772375> 

[1] TrueVote Pty Ltd [2023] FWC 1446 at [24].

[2] These questions were questions 1, 6, 7, 14 and 15 of the draft order.

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