Fair Work Act 2009

s.437 - Protected action

Proposed protected action ballot by employees of Victoria Legal Aid.

[1] This is an application for a protected action ballot by members of the CPSU, the Community and Public Sector Union (CPSU), employed by Victorian Legal Aid (VLA).

[2] The application is made pursuant to s.437 of the Fair Work Act (the Act). The applicant seeks to ballot employees of the VLA who are members of the CPSU and who would be covered by the proposed enterprise agreement.

[3] In considering the 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:

(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.

[4] The next matter to which attention must be given is whether or not the applicant has been and is genuinely trying to reach agreement with the employer of the employees who are to be balloted. I am satisfied, after hearing the submissions, that this is the case.

[5] VLA raised two substantive matters. The first is in relation to the proposed question three which seeks approval to have employees display signage and campaign materials authorised by the CPSU at VLA offices at court relating to bargaining for an enterprise agreement.

[6] The VLA is concerned that materials could be displayed in court premisess other than within the VLA office. It is the intention of the CPSU to, in a limited way, authorise such action. Whilst I understand the concern expressed by the VLA, I am sure the CPSU and its members have great respect for the judicial officers and any rulings they may make. However I am unable to find that the conduct would not constitute industrial action as defined by s.19 of the Act.

[7] The next matter relates to employees attaching a certain statement to the footer of an email.

[8] The VLA argue that a proper construction of the Act would lead to a conclusion that such action could not be regarded as industrial action either under s.19(1)(a) or (b). It argues that the conduct does not result in a restriction or limitation on, or a delay in the performance of work. It similarly argues that s.19(1)(b) cannot be invoked because it does not constitute a ban, limitation or restriction on the performance of work by an employee, or on the acceptance of or offering for work by an employee.

[9] The CPSU relies primarily upon s.19(1)(b) of the Act but does not concede that s.19(1)(a) is also relevant.

[10] The CPSU also draws to my attention the majority decision in the Mornington Peninsula Shire Council [[2011] FWAFB 4809, 22 July 2011] case. I find that the issues in this matter are on all fours with the consideration of the Bench in the Mornington case. Methods of communication evolve over time and I do not believe that the statute should be construed narrowly.

[11] To the extent that an employee has evinced an intention not to follow a reasonable and lawful direction of the employer this would, at the very least, in my view constitute a constraint upon the offering for work by the employee.

[12] I find the implementation of the action proposed in question one would constitute industrial action. 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 CPSU.

E. Burgio for the CPSU, the Community and Public Sector Union.

T. McEvoy on behalf of Victoria Legal Aid and (intervening) on behalf of the State of Victoria.

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