Victorian Ambulance Union Incorporated v St John Ambulance Australia (Victoria) Inc T/A St John Ambulance Victoria

[2023] FWC 288

[2023] FWC 288

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Victorian Ambulance Union Incorporated
v

St John Ambulance Australia (Victoria) Inc T/A St John Ambulance Victoria

(B2023/71)

DEPUTY PRESIDENT CLANCY MELBOURNE, 3 FEBRUARY 2023

Proposed protected action ballot of employees of St John Ambulance Australia (Victoria) Inc T/A St John Ambulance Victoria.

1. This is an application by the Victorian Ambulance Union Incorporated (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees St John Ambulance Australia (Victoria) Inc T/A St John Ambulance Victoria (the Respondent).

1. The Respondent raised concerns in relation to a number of the proposed orders but I was not persuaded that any of them provided a statutory basis for declining to make the Order sought. I advised the parties of this and ultimately, the Respondent did not request to be heard in relation to its concerns.

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

1. On the basis of the material before me, including the declaration of Mr Matthew Coggin of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

1. The Applicant also sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. The Respondent raised a general concern about the person proposed as the protected action ballot agent, being Democratic Outcomes Pty Ltd trading as CiVS (CiVS), and expressed a preference for the AEC.

1. Section 444 of the Act states:

“444      FWC may decide on ballot agent other than the Australian Electoral Commission and independent advisor

Alternative ballot agent

(1) The FWC may decide that a person other than the Australian Electoral Commission is to be the protected action ballot agent for a protected action ballot only if:

(a) the person is specified in the application for the protected action ballot order as the person the applicant wishes to be the protected action ballot agent; and

(b) the FWC is satisfied that:

(i) the person is a fit and proper person to conduct the ballot; and

(ii) any other requirements prescribed by the regulations are met.

1. The Regulations provide:

“Reg 3.11         FWC may decide on ballot agent other than the Australian Electoral Commission--requirements for protected action ballot agent

(1) For subparagraph 444(1)(b)(ii) of the Act, this regulation sets out requirements that the FWC must be satisfied have been met before a person other than the Australian Electoral Commission becomes the protected action ballot agent for a protected action ballot.

Note:         The person must also be a fit and proper person to conduct the ballot.

(2) The person must be capable of ensuring the secrecy and security of votes cast in the ballot.

(3) The person must be capable of ensuring that the ballot will be fair and democratic.

(4) The person must be capable of conducting the ballot expeditiously.

(5) The person must have agreed to be a protected action ballot agent.

(6) The person must be bound to comply with the Privacy Act 1988 in respect to the handling of information relating to the protected action ballot.

(7) If the person is an industrial association or a body corporate, the FWC must be satisfied that:

(a) each individual who will carry out the functions of the protected action ballot agent for the industrial association or body corporate is a fit and proper person to conduct the ballot; and

(b) the requirements in subregulations (2) to (6) are met for the individual.

1. Mr Michael M Michael, the Managing Director of CiVs has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS, and that he has relevant experience in conducting protected action ballots. I am satisfied that CiVS is a fit and proper person to conduct the ballot. I am also satisfied that Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVs has agreed to be the protected action ballot agent and Mr Michael and CiVS are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

1. Therefore I appoint CiVS as the protected action ballot agent.

1. An order has been separately issued in PR750184.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR750183>