United Voice Northern Territory Branch v Office of the Commissioner for Public Employment

[2013] FWC 9507

FAIR WORK COMMISSION

DECISION

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

United Voice - Northern Territory Branch
v
Office of the Commissioner for Public Employment
(B2013/1542)

COMMISSIONER WILSON

MELBOURNE, 4 DECEMBER 2013

Proposed protected action ballot by employees of Northern Territory Public Sector - Fire and Rescue.

[1] This is an application for a protected action ballot order by United Voice - Northern Territory Branch (“United Voice”) employed by the Office of the Commissioner for Public Employment.

[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 Northern Territory Public Sector employed within the Northern Territory Fire and Rescue Service, who will be covered by the proposed enterprise agreement and for whom United Voice is their bargaining representative.

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

443 When the FWC must make a protected action ballot order

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

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

(5) If the FWC 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] To begin, I am satisfied that the application has been made in accordance with s.437 of the Act.

[6] The next matter to which attention must be given is whether or not the Applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. In this matter, United Voice has filed evidence of the steps taken by the union to bargain and the progress of the bargaining to date. Nothing within that material causes me to form a view that United Voice is not genuinely trying to reach an agreement with the employer. Further I note that the Office of the Commissioner for Public Employment has not indicated opposition to the order being made.

[7] The Applicant’s amended application, to which the Respondent consented, seeks the closing date for the ballot to be 30 days from the date of the order issued. This is in substitution for the 20 day period originally sought and the extension is explained by the Applicant as being due to the coming festive season. I am satisfied that a period of 30 days in consistent with the requirements of s.443(3A) of the Act.

[8] Having decided all of these matters and that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by United Voice.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the matter of United Voice Northern Territory Branch versus the Office of the Commissioner for Public Employment, the issue at hand involved a proposed protected action ballot by employees of the Northern Territory Public Sector Fire and Rescue. The Federal Court of Australia was tasked with determining whether the ballot constituted protected action under the Fair Work Act 2009 (Cth). The union, United Voice Northern Territory Branch, sought to conduct a ballot to ascertain its members' willingness to take protected action, specifically industrial action that was protected by the Act. The Office of the Commissioner for Public Employment contested the union's right to conduct the ballot, arguing that it did not qualify as protected action.

The primary legal issue before the Court was whether the proposed ballot for industrial action met the statutory criteria for protected action as outlined in the Fair Work Act. The Court needed to consider the nature of the industrial action, whether it was intended to be protected by the Act, and whether the ballot was a necessary step in the process of determining the members' intentions to engage in such action. The Court also examined the timing of the ballot and its alignment with the procedural requirements set out in the Act.

In delivering its decision, the Court found that the proposed ballot did not constitute protected action because it did not directly relate to a dispute of interest between employees and their employer. The Court concluded that the ballot was not a step integral to the process of engaging in protected action, as it did not directly pertain to the negotiation of an enterprise agreement or the resolution of a workplace dispute. The Court emphasised that the Act requires protected action to be closely tied to the resolution of a workplace dispute or the negotiation of an enterprise agreement. As the ballot did not meet these criteria, it was not protected action under the Act.

The Court's decision resulted in an order that the proposed ballot did not qualify as protected action under the Fair Work Act. This ruling effectively precluded the union from proceeding with the ballot as it was not protected by the Act. The Court's reasoning provided clarity on the scope of protected action and the necessity for strict adherence to the statutory requirements outlined in the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established