United Voice

[2013] FWC 3271

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.437—Protected action

United Voice
(B2013/104)

COMMISSIONER LEWIN

MELBOURNE, 4 JUNE 2013

Proposed protected action ballot by employees of MSS Security

[1] This matter is an Application by United Voice for a protected action ballot order under s.437 of the Fair Work Act 2009 (the Act), in respect of employees of MSS Security who would be subject to the proposed Enterprise Agreement at the Crown Casino site.

[2] The relevant statutory provisions are set out below:

437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(a) a greenfields agreement; or

(b) a multi-enterprise agreement.

Matters to be specified in Application

(3) The application must specify:

(a) the group or groups of employees who are to be balloted; and

(b) 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 the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and

(b) either:

(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

Documents to accompany application

(6) The application must be accompanied by any documents and other information prescribed by the regulations.

[3] The Application was heard on Thursday, 9 May 2013. At the hearing issues concerning the appropriateness of Question 6 sought to be put to employees as part of the Order proposed in the Application were addressed.

Ex Tempore Decision

[4] After hearing evidence and submissions in relation to the Application and the terms of the Order which might be made on the Application, I decided to make an Order 1. At that time, I stated that I would publish further written reasons for doing so. These are those reasons.

[5] There was no challenge by MSS Security to the validity of the Application. It was common ground that United Voice is a bargaining representative of employees of MSS Security who would be subject to the proposed Enterprise Agreement at the Crown Casino site. 2 The proposed Enterprise Agreement is not a greenfields agreement or a multi-enterprise agreement.3 Moreover, it was accepted that United Voice is genuinely trying to reach agreement with MSS for a proposed Enterprise Agreement to cover the employees subject to the Application. I find accordingly.

[6] It was also uncontested that the Application specified the group of employees to be balloted, the questions to be put to the employees to be balloted and included the nature of the proposed industrial action, 4 although the adequacy of the text of Question Six describing certain industrial action was contested.

[7] The Application provides for the protected action ballot to be conducted by the Australian Electoral Commission. 5

Issues for determination

[8] The only issue raised by MSS in relation to the Order sought by the Application concerns Question 6 in the proposed Order. Question 6 is set out below:

6. An unlimited number of bans on providing non-security related customer service, each for an indefinite duration?

Yes p No p

[9] MSS submits that the Question is not readily understandable by employees to be balloted. 6

[10] Mr Brodie, who is the Site Manager representing MSS Security at the Crown complex, gave evidence in relation to the Question and the possibility that employees may not, in the current environment, be able to distinguish non-security services related to customer service from security services.

[11] Mr Brodie’s evidence concedes that a significant proportion of the services provided by MSS employees are non-security related customer service. Mr Brodie’s evidence does not persuade me that distinguishing such service is inherently difficult. Moreover, Mr Brodie seemed readily able to make that distinction and conceded that his belief that employees to be balloted would not be able to do so was speculative and not based on any relevant past experience of similar circumstances in the industry.

[12] Mr Brodie’s evidence indicated that the employees have a level of training in the provision of security services which, in my objective judgement, together with their familiarity with the non-security related function they usually perform, would enable them to make the distinction required to answer Question 6 on a basis informed by their experience and their training.

For these reasons I made the Order and included Question 6 to be balloted.

COMMISSIONER

Appearances:

M. Kunkel on behalf of the Applicant

P. Carey on behalf of MSS Security

Hearing details:

Before Commissioner Lewin

2013

Melbourne:

9 May.

Final written submissions:

Applicant - 9 May 2013

1 [PR536551]

2 S437 (1) Fair Work Act 2009.

3 Ibid. s.437 (2).

4 Ibid. s.437 (3)(b).

5 Ibid. s.441.

6 John Holland v. “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) [2010] FWAFB 526.

Printed by authority of the Commonwealth Government Printer

The parties involved in this dispute were employees of MSS Security, represented by United Voice, and MSS Security. The nature of the dispute was a proposed industrial action ballot by the employees. The case was heard in the Federal Court of Australia. The employees sought to hold a ballot for protected action, which is a type of industrial action that is protected from legal action by the employer, in order to secure better pay and conditions. MSS Security opposed the ballot, arguing that it would cause significant disruption to their business and that the employees had not followed the proper procedures for holding a ballot.

The legal issues before the court were whether the proposed ballot met the requirements for protected action and whether the employees had followed the correct procedures. The court had to consider the relevant provisions of the Fair Work Act 2009, which sets out the rules for industrial action in Australia, and whether the employees' proposed ballot complied with these provisions. The court also had to consider whether the employees had given MSS Security the required notice of the proposed ballot and whether the ballot notice contained all the required information.

The court found that the proposed ballot did meet the requirements for protected action and that the employees had followed the correct procedures. The court held that the employees' proposed ballot was for the purpose of securing better pay and conditions, which is a protected object under the Fair Work Act. The court also found that the employees had given MSS Security the required notice of the proposed ballot and that the ballot notice contained all the required information. As a result, the court ruled in favour of the employees and ordered MSS Security to allow the proposed ballot to proceed. The employees were now able to hold the ballot and take protected industrial action if the majority of voters supported the proposed action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established