United Workers' Union v Commissioner for Public Employment (Northern Territory Correctional Service)

[2022] FWC 3102

[2022] FWC 3102

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

Commissioner for Public Employment (Northern Territory Correctional Service)

(B2022/1745)

DEPUTY PRESIDENT DEAN CANBERRA, 23 NOVEMBER 2022

Proposed protected action ballot of employees of Commissioner for Public Employment (Northern Territory Correctional Service).

1. The United Workers’ Union of Australia (UWU) has made an application for a protected action ballot order (PABO) pursuant to s. 437 of the Fair Work Act 2009.

1. The application seeks to ballot employees of the Commissioner for Public Employment (Northern Territory Correctional Service) (Respondent) who are members of, and represented by, the UWU for a proposed agreement to replace the Correctional Officer (NTPS) 2017 – 2021 Enterprise Agreement (the Agreement).

1. The Respondent opposes the making of a protected action ballot order for a number of reasons, including the significant impact protected action would have on the Respondent’s ability to ensure the safety of prisoners and staff.

1. Following a conference conducted by telephone on 23 November 2022, the parties reached a consent position in which the period of notice would be extended to six working days and the order made by the Commission would include a commitment to safety by the UWU in the same terms as has been included in previous protected action ballot orders. On this basis the Respondent withdrew its objection.

1. Section 443(5) of the Act provides that if there are exceptional circumstances justifying the period of written notice referred to in s.414(2)(a) being longer than three working days, the protected action ballot order may specify a longer period of up to seven working days.

1. I am satisfied, based on the Respondent’s submissions, that there are exceptional circumstances to justify an extension of the notice period specified in s.414(2)(a) of the Act. The Respondent’s submissions included that the current number of prisoner’s had reached an unprecedented maximum capacity and that further protected action would be difficult to manage on short notice without putting prisoners and staff health and safety at risk. Further, the notice period had been extended in previous ballot orders as a result of exceptional circumstances.

1. I have therefore determined to exercise my discretion to grant an extension of the notice period. I am satisfied that an extension of the notice period from three working days to six working days is appropriate in all the circumstances.

1. On the basis of the material before me, including the statutory declaration of Ms Erina Early of UWU which set out the steps taken in bargaining with the Respondents, I am satisfied that the UWU has been, and is, genuinely trying to reach agreement with the Respondent, that there is a notification time in relation to the proposed agreement and that the requirements in section 443(1) of the Act have been met. Accordingly, the protected action ballot order must be made.

1. The UWU sought that a person other than the Australian Electoral Commission be the ballot agent for the protected action ballot. The person proposed in the application as the protected action ballot agent is Democratic Outcomes Pty Ltd trading as CiVS (CiVS). On the basis of the declaration provided by Mr Michael M Michael, Managing Director of CiVs, I am satisfied that CiVS is a fit and proper person to conduct the ballot and that the requirements prescribed by Reg3.11 of the Fair Work Regulations 2009 are met. Accordingly, CiVS is appointed as the protected action ballot agent.

1. Directions for the conduct of the protected action ballot in accordance with s.450 of the Act have been incorporated into the Order, issued separately in PR748196.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR748195>