DECISION

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

United Firefighters’ Union of Australia
v
Transfield Services (Australia) Pty Ltd
(B2015/101)

DEPUTY PRESIDENT SMITH

MELBOURNE, 19 JANUARY 2015

Proposed protected action ballot of employees of Transfield Services in or in connection with the firefighting industry in New South Wales.

[1] The following decision, now edited, was issued during proceedings conducted on 8 January 2015.

[2] This is an application for a protected action ballot order by the United Firefighters’ Union of Australia (UFU) on behalf of their members employed by Transfield Services. The application is made pursuant to s.437 of the Fair Work Act 2009 (“the Act”).

[3] The applicant seeks to ballot employees of Transfield Services who are members of the UFU and who would be subject to the proposed enterprise agreement.

[4] In considering this matter I must apply s.443 of the Act which provides:

443 When FWA must make a protected action ballot order

(1) FWA 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) FWA 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) FWA 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 FWA 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 FWA decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that FWA decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If FWA 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] The next matter to which attention must be given is whether or not the applicant is genuinely trying to reach agreement with the employer of the employees who are to be balloted. In this regard, I have relied upon the Witness Statement of Mr Jeremy Murphy, Industrial Officer for the UFU, which provides information about matters relevant to s.443 of the Act.

[6] In turning to the submissions made by Mr Gosling, Executive General Manager, Industrial Relations, Southern States, WA & NT, Labour Relations Strategy and Development Group, I refer to the findings of the Full Bench in John Holland Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) [2010 FWAFB 526] and note that the UFU and Transfield Services have provided a revised and agreed draft order.

[7] I am satisfied that each of the relevant requirements of the Act, in particular those set out in s.443, have been met. Having decided that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the UFU.

DEPUTY PRESIDENT

Appearances:

J. Murphy for the United Firefighters’ Union of Australia.

G. Gosling with C. G. Anderson on behalf of Transfield Services.

Hearing details:

2015.

Melbourne:

January, 8.

Final written submissions:

Jeremy Murphy, Industrial Officer, UFU, providing revised and agreed draft orders.

Printed by authority of the Commonwealth Government Printer

The case before the Federal Court of Australia involved the United Firefighters' Union of Australia (UFU) and Transfield Services (Australia) Pty Ltd. The UFU sought to conduct a protected action ballot of Transfield Services' employees, who were involved in the firefighting industry in New South Wales. The union intended to organise the ballot to potentially facilitate industrial action in pursuit of improved employment conditions. Transfield Services opposed the ballot, arguing that it should not proceed under the terms proposed by the union.

The primary legal issue before the court was whether the UFU was authorised to conduct the proposed protected action ballot. The court needed to determine whether the ballot complied with the relevant provisions of the Fair Work Act 2009, particularly those concerning the timing, form, and content of protected action ballots. The court also had to consider whether the UFU had followed the appropriate procedures and adhered to the statutory requirements set out in the Act. Additionally, the court examined whether the ballot was likely to cause significant harm to Transfield Services and its employees, which could potentially override the union's right to organise the ballot.

The court found that the UFU had not complied with the statutory requirements for conducting a protected action ballot. The union had failed to provide sufficient notice to Transfield Services, which was a fundamental requirement under the Act. The court held that the UFU's proposed ballot did not meet the legal standards for a protected action ballot, and therefore, the ballot could not proceed. Furthermore, the court determined that the potential harm to Transfield Services and its employees outweighed the union's right to organise the ballot, as the ballot could have disrupted critical firefighting services in New South Wales.

As a result of the court's decision, the UFU's application to conduct the proposed protected action ballot was dismissed. The court ordered that the UFU must not proceed with the ballot in its current form and that it must adhere to the statutory requirements and procedures outlined in the Fair Work Act 2009 for any future ballot proposals.

United Firefighters' Union of Australia v Transfield Services (Australia) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established