Victorian Ambulance Union Incorporated, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, United Firefighters' Union of Australia, United Workers'...

[2023] FWC 3116

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Victorian Ambulance Union Incorporated, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, United Firefighters’ Union of Australia, United Workers’ Union
v

Emergency Services Telecommunications Authority T/A ESTA

(B2023/1297)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 28 NOVEMBER 2023

Proposed protected action ballot of employees of ESTA - Emergency Services Telecommunications Authority

This is an application by the Victorian Ambulance Union Incorporated (VAU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) , United Firefighters’ Union of Australia (UFU), United Workers’ Union (UWU) (or collectively, the Unions) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Emergency Services Telecommunications Authority T/A ESTA (ESTA or Employer).

The Act contemplates in s.437(1) that two or more bargaining representatives may make a joint application of this kind.

On 28 November 2023, the Commission was advised that ESTA did not, in effect, object to the Application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declarations of Ms Susan Riley, CEPU Senior Industrial Officer, Mr Jeremy Murphy, UFU Senior Industrial Officer, Mr Julien Gibson, UWU Organiser and Mr Matthew Coggin, VAU Industrial Officer/Lawyer, setting out the steps taken by the Unions in bargaining with the Employer and that they have been, and are, genuinely trying to reach agreement with ESTA, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s 468A of the Act[1] and consequently is authorised to conduct the ballot.

The sequence of clauses 6 to 8 in the proposed order were rearranged to reflect the Commission’s normal practice.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 12 December 2023.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR768707.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400

[2] This is, in effect, seven (7) working days from the expected commencement of voting in the ballot, as sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Victorian Ambulance Union Incorporated, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, United Firefighters' Union of Australia, and United Workers' Union (collectively referred to as the Unions) applied to the Fair Work Commission for a protected action ballot order concerning certain employees of the Emergency Services Telecommunications Authority T/A ESTA (ESTA). The Unions sought to conduct a ballot under section 437 of the Fair Work Act 2009, which allows for a ballot to be held if there is a notification time in relation to the proposed agreement and if the bargaining representatives have been genuinely trying to reach agreement. ESTA did not object to the application, and the matter was determined on the papers without a hearing.

The key legal issue before the Commission was whether the requirements for a protected action ballot, as outlined in section 443(1) of the Fair Work Act 2009, had been met. The Unions provided declarations from their respective officers, affirming that they had been genuinely attempting to reach an agreement with ESTA. They also outlined the steps taken in the bargaining process and the existence of a notification time. The Commission was satisfied that the Unions had met the criteria for a ballot, and thus the application was granted. Additionally, the Commission approved the use of Democratic Outcomes Pty Ltd T/A CiVS (CiVS) as the ballot agent, as it is authorised under section 468A of the Act.

The Fair Work Commission issued an order granting the application and set the closing date for voting in the ballot as 12 December 2023. The Commission also determined that a compulsory conciliation conference would be held under section 448A of the Act, to be conducted by another member of the Commission. This conference aims to facilitate meaningful negotiations between the parties involved in the proposed enterprise agreement. The decision ensures that the Unions can proceed with the ballot to gauge employee support for potential protected actions, while also encouraging continued negotiation efforts through the mandated conciliation process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established