[2023] FWC 1381

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

Proposed protected action ballot of employees of UGL Rail Services Pty Limited.

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order (PABO) in relation to certain employees of UGL Rail Services Pty Limited (UGL). The application was lodged on 8 June 2023.

[2] The group of employees to the balloted are those employees of UGL Rail Services Pty Limited employed at 30 Clyde Street, Hamilton North NSW 2292 premises and who are members of the CEPU who would be subject to the proposed enterprise agreement and for whom the CEPU is the bargaining representative. I observe that this is a subset of the entire workforce to be covered by the proposed agreement, with the majority of the workforce already subject to PABO applications that were previously granted.[1] It appears that the group concerned here are based at a different work location and the application has been taken to avoid any dispute about the capacity to take protected industrial action.

[3] This application is amongst the first to be considered by the Commission following the commencement of a number of bargaining changes brought about by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act). These changes commenced on 6 June 2023 and amongst other matters, impact upon the making of PABOs and the approval of protected action ballot agents who might conduct the ballot should an order be made.

• [4] For context, I also observe that this application was dealt with in conjunction with a related matter[2] in which the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) was also seeking a PABO in connection with the same proposed enterprise agreement being negotiated here. The proposed agreement in each case is not a greenfields agreement, or a multi-enterprise agreement that is a cooperative workplace agreement, and this application is permitted.[3]

• [5] There has also been a notification time for the proposed agreement, the present enterprise agreement has passed its nominal expiry date, and the application and accompanying documentation is in order. The application and proposed order have also been provided by the CEPU to UGL and the proposed ballot agent. This meets various requirements[4] for the making of a PABO.

[6] The application was supported by a statutory declaration of Brad McDougall, CEPU Organiser.

• [7] On 9 June 2023, the Commission was advised that UGL did not object to the application. However, a hearing was conducted on 13 June 2023[5] to deal with some other aspects that arise from the Amending Act. I observe that during the hearing, UGL advanced opposing submissions on the matters raised by the Commission and that are addressed in the Decision below.

• [8] Having heard the matter, I advised the parties that an Order would be issued largely in terms as sought by the applicant. This has been done.[6] My reasons for so doing are set out herein.

[9] Section 444 of the Act now relevantly provides as follows:

(1A) The FWC must, in accordance with subsections (1B) to (1D) of this section, decide the person or entity that is to be the protected action ballot agent for the protected action ballot.

(1B) The person or entity must be the person or entity specified in the application for the protected action ballot order as the person or entity the applicant wishes to be the protected action ballot agent, unless:

(a) the person or entity specified in the application does not meet the requirements of subsection (1C) (unless subsection (1D) applies); or

(b) the FWC is satisfied that there are exceptional circumstances that justify another person or entity being the protected action ballot agent.

(1C) The person or entity must be an eligible protected action ballot agent.

(1D) Subsection (1C) does not apply in relation to a person if the FWC is satisfied that:

(a) there are exceptional circumstances that justify the ballot not being conducted by an eligible protected action ballot agent; and

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

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

Note: Other than the Australian Electoral Commission, an entity that is not a person cannot be the protected action ballot agent for a protected action ballot."

[10] There are presently no eligible protected action ballot agents approved by the Commission beyond the Australian Electoral Commission (AEC). The CEPU propose that Democratic Outcomes Pty Ltd T/A CiVS (CiVS) be the ballot agent and, in effect, rely upon the exceptional circumstances contemplated in s.444(1D)(a). CiVS has agreed to be the ballot agent, and this has been confirmed in evidence that is before the Commission.

• [11] For reasons set out in other Decisions,[7] my view is that the test for whether exceptional circumstances exist is whether the circumstances are such that they are out of the normal course of events, unusual, uncommon or extraordinary. It is open to conclude that the recency of the amendments to the protected action ballot agent provisions of the Act are exceptional circumstances. The recency of these changes, and the fact that the scheme of the Act contemplates that there will be a choice of eligible ballot agents, are unusual and are not something that have occurred before, making it uncommon.

• [12] Importantly, if it is found that exceptional circumstances do exist, those circumstances must justify the FWC granting an order for a non-eligible person to act as the protected action ballot agent. This arises from the language of s.444(1D)(a) and calls for consideration of the purpose of the relevant provision.[8]

[13] Section 444 of the Act aims to protect the interests of the employees participating in the ballot and those of the employer involved. Further, there is a statutory imperative arising from the scheme of the Act and the associated regulations that any ballot that might authorise the taking of industrial action be conducted in a proper, democratic, prompt and robust manner by agents that are fit and proper persons to undertake that task.

[14] Accordingly, the exceptional circumstances that might justify why the FWC should appoint an agent which is not an eligible protection action ballot agent should be assessed in that context.

[15] I have found that exceptional circumstances do arise associated with the recency of the new provisions. However, whilst each case must be assessed on its own merits, I would not necessarily consider that by itself, the absence of eligible protected action ballot agents beyond the AEC at this point would constitute exceptional circumstances warranting the exercise of the discretion. In this case, the proposed ballot agent has already conducted a ballot for the same bargaining representatives at this workplace as part of the same bargaining process. Further, it would be problematic if significantly different processes and more lengthy timeframes were adopted for what are indirectly related PABOs. I have also taken into account that UGL did not accept that there were relevant exceptional circumstances but took no issue with the approval of the proposed ballot agent, and that the proposed agent can undertake the ballot in a prompt manner. On balance, I was satisfied that there are exceptional circumstances that justified the approval of the non-eligible ballot agent proposed in this matter.

[16] The proposed protected action ballot agent must also meet the requirements of s.444(1D)((b) and (c) of the Act. This involves an assessment of whether the proposed protected action ballot agent is a fit and proper person to conduct the ballot and whether they also meet the requirements established by the regulations.

• [17] As to fit and proper person, the CEPU has provided a Statutory Declaration of Mr Mike Michael, Managing Director of CiVS. I observe that Mr Michael and CiVS have previously been found by the Commission to be a fit and proper person to conduct a protected action ballot based upon Mr Michael's declared education, experience and attributes.[9] The material now before the Commission includes confirmation of extensive ballot and other professional experience and the absence of criminal convictions of any kind within the business.

[18] The Fair Work Regulations 2009[10] now relevantly provide in reg 3.11 as follows:

"(1) For the purposes of paragraph 444(1D)(c) of the Act, this regulation prescribes requirements that the FWC must be satisfied have been met before a person becomes the protected action ballot agent for a protected action ballot.

Note: The person must also be a fit and proper person to conduct a protected action 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."

[19] The evidence provided on behalf of the proposed ballot agent also confirms to my satisfaction compliance with all of these requirements. This includes details about the nature of the information and other systems to be used for the ballot, compliance with the Privacy Act and related principles, and steps that will be taken to ensure that the ballot is conducted fairly, democratically, and expeditiously by fit and proper individuals.

[20] I have approved CiVS to act as the protected action ballot agent in this matter under s.444(1D) of the Act.

[21] No independent advisor for the ballot was proposed or appointed.

[22] The application sought a ballot period of 5 working days (from the commencement of the ballot). This was proposed on the basis that CiVS could undertake the ballot within that timeframe. However, in consequence of the issuing of the PABO, the Commission was obliged to conduct a compulsory conciliation conference under s.448A of the Act involving all bargaining representatives for the proposed enterprise agreement. I observe that this will also include the AMWU. It is not clear whether there are independent bargaining representatives involved with this bargaining process and this will need to be clarified. This conciliation conference must be conducted during the ballot period and involves the Commission issuing a formal Order for the bargaining representatives to attend and the necessary lead time to permit both the parties and the Commission to be prepared. I have set the ballot period at 10 working days from the date of effect of the PABO (13 June 2023). The period has been set having regard to the implications of the above requirements and the fact there is only a small group of employees to be balloted.

[23] This matter will be assigned to another Member of the Commission who will issue the Order requiring attendance at the conference, and it is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

[24] On the basis of the material before me, I was satisfied that the CEPU has been, and is, genuinely trying to reach an agreement with UGL This meets the requirements of s.443(1)(b) of the Act. I was also satisfied that all of the other statutory requirements for the issuing of the PABO in this matter were met. Under s.443 of the Act, the Commission was then required to issue the PABO.

[25] An order has been separately issued in PR762993.

[1] "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v UGL Rail Services Pty Ltd [2023] FWC 923 and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Rail Services Pty Ltd [2023] FWC 977.

[5] Monday 12 June 2023 was a public holiday (non-working day) in the relevant States.

[7] AMWU v Otis Elevator Company Pty Limited T/A Otis Elevator Company [2023] FWC 1337.

[8] CEPU v Australian Postal Corporation [2007] AIRC 848; (2007) 167 IR 4 at [11].

[9] See amongst many examples The Australian Workers' Union v Jadestone Energy (Australia) Pty Ltd [2021] FWC 227.

[10] As amended by the Fair Work and Other Legislation Amendment (Secure Jobs, Better Pay) Regulations 2023, made on 25 May 2023.

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