United Voice v State of Victoria (Department of Education & Early Childhood Development)
[2012] FWA 6355
•26 JULY 2012
[2012] FWA 6355 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
CPSU, the Community and Public Sector Union; United Voice
v
State of Victoria (Department of Education & Early Childhood Development)
(B2012/945)
COMMISSIONER ROE | MELBOURNE, 26 JULY 2012 |
Proposed protected action ballot by employees of State of Victoria (Department of Education & Early Childhood Development).
[1] This is an application for a protected action ballot by members of the Community and Public Sector Union (CPSU) and United Voice employed by the State of Victoria (Department of Education & Early Childhood Development) (Employer). The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act). The Application was made on 24 July 2012 and was determined on 26 July 2012.
[2] I consider it appropriate to deal with the joint application by the two Unions pursuant to s 442 of the Fair Work Act.
[3] Mr N Church appeared for the CPSU and Ms L Stevens appeared for United Voice. I granted Mr B Avallone permission to appear for the Employer.
[4] The applicants seek to ballot employees of the employer who would be subject to a proposed enterprise agreement and who are members of the CPSU or United Voice who have not appointed another person or entity as their bargaining representative.
[5] 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.”
[6] To begin, I am satisfied that the Application has been made in accordance with s.437 of the Act. I am satisfied that the Application was served upon the Respondent Employer and the AEC as the ballot agent as required by Section 440 of the Act. I am satisfied that the Application was not made earlier than 30 days prior to the nominal expiry date of the current agreement, as required by Section 438 of the Act. The current Agreement, the Victorian Government Schools - School Services Officers Agreement 2004 has a nominal expiry date of December 2011.
[7] The next matter to which attention must be given is whether or not the Applicants have been, and are, genuinely trying to reach an agreement with the employer on behalf of the employees who are to be balloted. I am satisfied, after hearing submissions from the CPSU and United Voice that this is in fact the case. The CPSU and United Voice provided details of an extensive number of negotiation meetings over an extended period of time during 2012. The Employer did not oppose the Application.
[8] I am satisfied that the question adequately specifies the nature of the proposed industrial action and meets the requirements of Section 443(3)(d). The scope of the Agreement sought by the Unions adequately describes the group of employees to be balloted as required by Section 443(3)(b). The AEC will be the ballot agent.
[9] 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 Unions. At the conclusion of the proceedings I advised the parties that I would issue the Order. I have published that Order separately.
[10] The Employer made an application for the inclusion in the Order of a requirement pursuant to Section 443(5) that the period of written notice prior to taking the action specified in the ballot questions should be 5 days rather than the standard requirement for 3 days notice as specified in Section 414(1). I have to be satisfied that the circumstances exist for the granting of the application.
[11] I refer to the decision of Vice President Lawler in CEPU v Australian Postal Corporation. 1
[12] Vice President Lawler summarised the meaning of “exceptional circumstances” in the context of a similar provision in earlier legislation.
“In summary, the expression “exceptional circumstances” requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon”. 2
[13] His Honour also found that:
“... it is important to note that when considering whether to make an order pursuant to s.463(5) the Commission is not simply concerned with determining whether there are exceptional circumstances. There must be exceptional circumstances “justifying” the specification of a longer notice period. The notion of justification is critical and calls for a consideration of the purpose of the notice required by s.441”. 3
[14] Vice President Lawler then went on to explain the nature of the test.
“Essentially, what is required in determining whether exceptional circumstances justify an extension of the required notices period is a weighing of the interests of the employer and third parties in the employer having a greater opportunity to take appropriate defensive action as against the diminution in the effectiveness of the employees’ bargaining power that results from such an extension. The fact that the legislature has seen fit to condition the ordering of an extension of the required notice period on the presence of exceptional circumstances justifying it, as distinct from merely conferring a simple discretion to extend the required notice period, indicates that ordinarily there should be no extension”. 4
[15] I adopt the approach taken by Vice President Lawler. The Employer noted that Vice President Lawler noted in his decision that a strike by teachers may be a situation where the longer notice period may be appropriate. DP Smith on 2 May 2012 approved a protected action ballot for teachers employed by the Employer ([2012] FWA 3729) and in doing so also decided that there were exceptional circumstances justifying a period of 5 working days notice.
[16] The Employer provided submissions in support of its application for 5 days notice and also evidence from Mr Hollingsworth. 5 Mr Hollingsworth gave evidence that more than half of the 17,200 education support workers potentially covered by the application work directly serving the needs of students on a day to day basis. In particular they provide support to disadvantaged and special needs students.
[17] His honour DP Smith observed in respect of teachers:
“The size of the student population and the various families affected leads me to be cautious about the possible impact upon parents and school planning. It is not a difficult assumption to make that many families have parents who work and the stresses on making alternative arrangements, up to and including seeking leave from their own workplace, need to be considered. This of course needs to be balanced against the presumption that employees are entitled to take protected industrial action in pursuit of their bargaining position.” 6
[18] I do not accept that all proposed industrial action affecting an essential service can be regarded as an exceptional circumstance. However, it may be that a combination of the nature of the proposed action and the particular circumstances of the essential service work which could constitute exceptional circumstances. In the current circumstance the ballot question is very broad and permits a wide range of action so it is not possible to limit any extended period of notice to a particular form of action.
[19] I am satisfied that education support workers potentially covered by the application work directly serving the needs of students and particularly those students with special needs. Industrial action by this group of employees potentially has the same effect as the action of teachers dealt with by DP Smith. In these circumstances and given that the Unions do not oppose the application I am satisfied that exceptional circumstances exist and that it is appropriate to require an extended notice period of five working days.
[20] I shall vary the Order made in respect to the protected action ballot to provide that the period of notice required to be given be extended from three working days to five working days.
COMMISSIONER
Appearances:
Mr N Church for the CPSU and Ms L Stevens for United Voice.
Mr B Avallone with Mr I Hollingworth for the Respondent.
Hearing details:
2012
Melbourne
July 26
1 [2007] AIRC 848.
2 Ibid at para 10.
3 Ibid at para 11.
4 Ibid at para 21.
5 Exhibit Victoria 1.
6 Australian Education Union v The State Of Victoria (Department of Education and Early Childhood Development) [2012] FWA 3729 at paragraph 23.
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