Fair Work Act 2009

s.437 - Protected action

Proposed protected action ballot of employees of Silk Contract Logistics Pty Ltd.

[1] This Decision deals with three applications made by the United Workers' Union (Union).

[2] On Thursday 12 August 2021, the Union applied to the Commission for three protected action ballot orders (PABO).[1]

[3] In its applications, the Union sought protected action ballot orders of the following employees of Silk Contract Logistics Pty Ltd (SCL), respectively:

• In Matter B2021/667, those employees who are members of the Union who are employed at SCL's Caprice site and whose employment is currently covered by the Silk Contract Logistics Pty Ltd Caprice Warehouse & National Union of Workers Enterprise Agreement 2016;

• In Matter B2021/668, those employees who are members of the Union who are employed at SCL's Clayton site and whose employment is currently covered by the Silk Contract Logistics Clayton Enterprise Agreement 2018; and

• In Matter B2021/669, those employees who are members of the Union who are employed at SCL's Altona North, Laverton and Tullamarine sites and whose employment is currently covered by the Silk Contract Logistics Pty Ltd Altona North/Laverton/Tullamarine Enterprise Agreement 2018.

[4] The Union also sought that a person other than the Australian Electoral Commission (AEC) 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). Mr Michael M Michael, the Managing Director of CiVs 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.

[5] At 8.54am on Friday 13 August 2021, my Associate was advised that SCL opposed the making of a protected action ballot order with respect to all three applications on the following grounds:

• that each protection action ballot should be conducted by the Australian Electoral Commission (AEC);

• that each protection action ballot should be not be conducted electronically and instead be conducted by postal vote or attendance;

• that each protection action ballot should be conducted and recorded separately on each work site; and

• SCL opposed the proposed employee claim action outlined in questions 3 and 4 of each respective draft order (this opposition ultimately concerned questions 3-5).

[6] Therefore, my Associate sent an email to the Union seeking their views in relation to SCL's objections outlined above. The Union replied via email at 12:54pm on 13 August 2021 opposing SCL's grounds of objection outlined above.

[7] In these circumstances, the matter was listed for hearing before me at 10.00am on Tuesday 17 August 2021. The Union and SCL were directed to file an outline of argument and any other material upon which they sought to rely in support of their respective positions by 12:00pm on 16 August 2021.

[8] In its submissions, SCL sought to have any ballot conducted by the AEC. SCL notes that the decision of the Commission to decide on a ballot agent other than the AEC is discretionary under s 444 of the Fair Work Act 2009 (Act) and submits the appointment of the AEC is the most expeditious and efficient method of conducting the vote. SCL does so on the basis that the AEC is accepted as beyond reproach and fully independent, thereby removing the risk of protracted debate and challenges as to the conduct of the vote of the ballot. SCL further submits that the AEC is an efficient and experienced conductor of such ballots and so ensures that the process has minimal if any risk of delay or challenge. SCL submits having the ballot conducted by the AEC is preferable to CiVS. The foundation of the submissions of SCL was that the AEC is the preferred choice under the Act unless a specific Order is made. SCL seeks to utilise that choice. SCL makes the additional submission that because there is some resistance to undertaking training online amongst its employees, a postal ballot is to be preferred.

[9] Further, SCL seeks to have any ballot conducted on each work site separately and returned as such. It is proposed the "Altona North/Laverton/Tullamarine Enterprise Agreement" is voted upon as one group. SCL submits that in order to properly undertake a fair and democratic process to determine whether employees wish to engage in particular protected industrial action as is the Object of this Division of the Act, the ballot should be held and recorded separately on each site.

[10] SCL raises concerns regarding questions 3, 4 and 5 of the proposed ballot. SCL submits that speaking to the media, or members of the public or the employer's customers cannot be "industrial action" as defined under s 19 of the Act and this may give rise to the risk that taking such action may be outside protected industrial action and the employees breaching of other obligations under their contracts of employment. In this case, SCL submits that if employees were to undertake stoppages for the purposes of talking to media or the public or customers of the employer, they are likely to be in breach of the Company's Social Media Policy and their obligations of good faith and confidentiality to their employer at common law and under their contracts of employment. SCL says that it is not part of the duties of the employees, and they are not authorised to speak to the media, public or customers in the manner set out in the ballot.

[11] While it conceded an unlimited number of stoppages of work for 1 hour might be protected industrial action, SCL proffers that when the two parts of the questions are considered, the proposed industrial action is ambiguous, confusing and potentially misleading. It submits this is contrary to Full Bench authority that the questions should be sufficiently clear to enable employees to make an informed choice about whether to approve the nature of the industrial action identified in the question and describe industrial action in such a way that employees are capable of responding to it.[2]

[12] In its submissions, the Union submits that the Commission should grant the applications for the following reasons:

• there is no substantive objection to the applications;

• the applications are made in accordance with s 437 of the Act; and

• the Commission can be satisfied the Union has been and is genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[13] The Union submits that CiVS is independent of each applicant and is capable of ensuring a ballot is fair and democratic without requiring advice or recommendations from an independent advisor.

[14] As regards the discretionary power available under s 444 of the Act, the Union submits that regard should be had to:

• The objects of the relevant division of the Act outlined in s.436: to establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement; and

• The ballot method, "which should reflect a judgement, in the circumstances of the employees and their employment, as to what process will best provide a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement, rather than the preference of the applicant or, indeed, either party".[3]

[15] The Union submits that CiVS should be appointed as the ballot agent as each of the requirements of the Act and the Fair Work Regulations 2009 (Regulations) are met as follows:

• CiVS is specified in the applications as the person the applicant wishes to be the protected action ballot agent;

• CiVS is a fit and proper person to conduct the ballot;

• CiVS is capable of ensuring the secrecy and security of votes cast in the ballot;

• CiVS is capable of ensuring that the ballot will be fair and democratic;

• CiVS is capable of conducting the ballot expeditiously (and more expeditiously than the AEC);

• CiVS has agreed to be a protected action ballot agent;

• CiVS is bound to comply with the Privacy Act 1988 in respect to the handling of information relating to the protected action ballot; and

• CiVS is a body corporate and the Commission can be satisfied that the requirements of sub-Regulation 3.11(7) (a) and (b) are met.

[16] Noting that SCL's primary objection appears to be that an electronic ballot method should not be used and an attendance ballot is preferable, the Union submits that if AEC is appointed as the ballot agent, it will conduct the ballot by a postal ballot because it is not presently conducting attendance ballots due to COVID-19.[4]

[17] The Union submits that if CiVS is appointed as the ballot agent, the ballot will be conducted electronically. In accordance with the draft orders accompanying the applications, the proposed process will involve the following:

• CiVS will design a voting website on a secure server which will allow eligible voters to vote in the ballot;

• Just prior to the opening of the ballot, CiVS will issue an instruction sheet to each eligible voter containing details on how to cast their vote. The instruction sheet includes the voting website address, instructions on how to vote and a unique voting password to access the ballot;

• The instruction sheet will be sent to all eligible voters by both SMS message and email. CiVS will also send a copy of the instruction sheet to employees via post if they do not have the employees' mobile number and email address;

• Eligible employees may then cast their ballots via the voting website until close of voting;

• CiVS operates a telephone helpline that eligible employees can contact during the ballot. The helpline is also available to assist union or employer representatives;

• The results of the ballot are tallied electronically shortly after the conclusion of voting; and

• The results of the ballot are reported to both the union and the employer shortly after the conclusion of the voting period.

[18] The Union submits that I should exercise my discretion to appoint CiVS as the ballot agent for the following reasons:

• Whereas the AEC cannot conduct the ballot electronically and is currently only conducting postal ballots, if CiVS is appointed as the ballot agent, it will conduct the ballot electronically and this is preferable for the reasons set out below.

• All the employees who will vote in the proposed ballot live in metropolitan Melbourne and are subject to the Victorian Chief Health Officer's Stay at Home Directions (the Stay at Home Directions). The Stay at Home Directions require that people limit their interactions with others by, among other things, restricting the purposes for which they may leave their home and these purposes do not extend to leaving one's home to cast a postal vote in a protected action ballot. By contrast, the employees can vote in an electronic ballot without contravening the Stay at Home Directions. The Union concedes that some employees are likely to have incidental opportunities to cast a postal ballot, when, for example they are travelling to obtain food or are travelling to and from work, the specific requirements of the Stay at Home Directions are a factor weighing in favour of the preferability of the electronic method, in these circumstances.

• An electronic ballot can be conducted more quickly than a postal ballot. The draft orders accompanying the applications propose that the ballot be conducted and finalised within 14 days of the Order. The ballot agent has confirmed that it is able to conduct the ballot within this timeframe. By contrast, if the AEC is appointed as the ballot agent, it will almost certainly require additional time to conduct the ballot, as it would not be possible to conduct a postal ballot within 14 days of the Order. The nature of the electronic ballot means that employees can cast their votes as soon as the ballot opens and are able to cast their ballots right up until the close of voting. An electronic ballot is not subject to postage delivery times. This contrasts with a postal ballot, where the ballot agent is required to account for the following:

  • Sufficient time to create, print and post ballots to employees;

  • Postage times for the ballots to reach employees;

  • Sufficient time for the employees to consider their vote, complete the ballot and place their completed ballot in the post; and

  • Sufficient postage time for the ballots to be returned by employees before the close of voting.

The AEC sends ballot papers via regular post. The reply-paid envelopes included with the ballots are also regular post. The delivery speed of regular post is currently between two and four business days and this creates delay in an employee receiving and returning their ballot compared with an electronic ballot.

• Electronic ballots tend to result in a higher participation rate.[5]

• Every employee who would vote in this ballot has the means to participate in an electronic ballot and an electronically conducted ballot also significantly reduces, if not eliminates handling of items touched by others.

[19] The Union refers to s 450(2) of the Act that requires the Commission to give written directions to the ballot agent (where the ballot agent is not the AEC) in relation to the following matters:

• the development of a timetable;

• the voting method(s) to be used;

• the compilation of the roll of voters;

• the addition of names to, or removal of names from, the roll of voters; and

• any other matter in relation to the conduct of the ballot that the Commission considers appropriate.

[20] The Union says the requirements prescribed by this section are provided for in the draft orders. Directions as required by section 450(2) may, in accordance with section 450(3), require the balloting agent to comply with a provision of subdivision C (with the exclusion of section 454(5)).

[21] The Union submits the directions issued by the Commission should direct CiVS to comply with the provisions of subdivision C (excluding section 454(5)) as provided for in the draft order. Should the Commission be minded to vary the draft directions in relation to compliance with subdivision C, CiVS is capable of meeting all applicable subdivision C requirements.

[22] Section 450(4) provides that the Commission may direct the employer, or the applicant to provide the names of the employees included in the group or groups of employees specified in the protected action ballot order and any other information that it is reasonable for the Commission or the protected action ballot agent to require to assist in compiling the roll of voter. The Union requests that the Commission, in accordance with section 450(4), direct it and SCL to provide employee and other relevant information as provided for in the draft order provided in this application.

[23] The Applicant submits that the requirements of s 443(1) of the Act are satisfied and therefore the Commission should make a protected action ballot order.

[24] The Union submits that as is apparent in s. 443(3)(b) of the Act, it is for the Applicant to choose the group or groups employees who are to be the subject of the ballot. It says it has identified the relevant groups in its applications and they are entirely consistent with s 443(5) of the Act. Further, there is no basis to suggest that balloting the group of employees proposed in the applications would result in an unfair or undemocratic process.

[25] The Union asserts that SCL's suggestion that the group of employees to be balloted as part of a protected action ballot may impact on the scope of any eventual agreement should be rejected. The scope and coverage of an enterprise agreement is a negotiation and is not in any way impacted by the group of employees to be balloted in a protected action ballot.

[26] Ms Anna Thwaites is an Industrial Officer of the Union. She was not cross-examined. Ms Thwaites gave the following, unchallenged evidence:

• She has significant experience negotiating enterprise agreements with employers, including proposed agreements that were the subject of protected action ballots;

• She is the organiser for the SCL sites located in Tullamarine, Laverton and Altona North (together the sites). As part of this, she regularly visits the sites and is in regular contact with Union members and delegates employed by SCL. She has also visited the Silk Caprice and Clayton sites with her colleague Robert O'Neill, who is the organiser for those sites;

• Negotiations for the Caprice Agreement commenced in late 2020, while negotiations for the Clayton Agreement and Altona North/Laverton/Tullamarine Agreement commenced in February 2021;

• The Union has served a log of claims for each agreement and the parties have exchanged various proposals. The parties have agreed on some matters, while others remain in dispute; and

• Bargaining for each of the agreements is ongoing. The Union remains ready and willing to continue negotiations with the aim of reaching agreement.

[27] Ms Thwaites says she has participated in bargaining for an enterprise agreement to replace the SCL Pty Ltd Altona North/Laverton/Tullamarine Enterprise Agreement 2018 (the 2018 Agreement). She gave the following evidence:

• The 2018 Agreement covers employees performing work at Silk's sites located in Altona North, Laverton and Tullamarine. There are approximately 41 Agreement covered employees across the sites: 9 at the Laverton North site, 24 at the Altona site and 8 at the Tullamarine site;

• During negotiations, the Union is represented by herself and three Union Delegates: two from the Altona site and one from the Tullamarine site;

• There have been approximately 12 bargaining meetings since bargaining commenced in February 2021;

• The Union is not seeking a change in the scope or coverage of the new agreement. Instead, the Union is seeking that replacement agreement cover the same sites as the 2018 Agreement;

• There is no dispute about the scope of the replacement agreement. SCL has not advanced a claim to change the scope of the replacement agreement; and

• Approximately two weeks ago, SCL asked the workforce to vote on a proposed agreement. The proposed agreement contained the same scope as the 2018 Agreement. A majority of the workforce voted to reject the proposed agreement and bargaining continues, however the question of scope is not a matter in contention. Bargaining is ongoing.

[28] Ms Thwaite says that Union members employed at the Silk sites have mobile phones and regularly use them. Ms Thwaite bases this off the following:

• She regularly contacts members employed at the sites by calling their mobile phones;

• She regularly sees members using their mobile phones when in the lunchroom speaking to workers; and

• She has reviewed the Union's membership records of employees who are employed by Silk and would be subject to a protected action ballot. The records indicate that all Union members who would be covered by the proposed agreements have a mobile telephone number or an email address or both. The Union's membership records are regularly updated.

[29] Based on her conversations with the Union Delegates and members from the sites, it is Ms Thwaites' understanding that most employees receive their payslip electronically. Ms Thwaites says that a member has also told her that SCL also distributes company policies to employees via email.

[30] During regular meetings that she holds with the workforce at the sites, Ms Thwaites has received consistent feedback from the members that they prefer to do an electronic protected action ballot rather than a postal ballot.

[31] In preparation for the protected action ballot application, Ms Thwaites contacted all members at the sites by mobile phone and confirmed that their contact details were correct.

[32] Mr Mike Michael is the Managing Director of CiVS. In addition to his witness statement, Mr Michael made a statutory declaration on 9 July 2021. Mr Michael gave the following, unchallenged evidence:

• CiVS is a company set up exclusively to run elections and ballots. CiVS is not a body

• CiVS is regularly appointed as a protected action ballot agent by the Commission and is also regularly engaged by employers to conduct votes. CiVS staff and himself have extensive experience in conducting protected action ballots. More generally, he has approximately 6 years' experience in conducting electronic ballots;
• Since he began working for CiVS, CiVs has completed approximately 1500 ballots of employees. In doing so, CiVS has counted the ballots of approximately half a million participants to date;
• Most of these ballots involved CiVS being engaged by employers to conduct votes of employees to approve an enterprise agreement;
• CiVS is regularly appointed by the Commission under s 444 of the Act as the ballot agent for protected action ballots. In 2021 alone, CiVS has been appointed the agent by the Commission no fewer than twenty-four times;
• Each protected action ballot was conducted in accordance with the Protected Action Ballot Order issued by the Commission, any other directions made by the Commission in accordance with s 450, any timeline requirements of s 451 and any roll requirements as required by ss 452, 453 and 454(1-1) of the Act;
• He is not aware of any complaints being made against CiVS in relation to the conduct of a protected action ballot;
• CiVS has been appointed as the balloting agent for protect action ballots without the Commission to date appointing another person as an independent advisor for the conducting of those ballots;
• He and CiVS are independent third parties and have no interest, financial or otherwise, in the outcome of any ballot or election they conduct. They provide a professional service and are paid regardless of the outcome;
• CiVS has been engaged by the following employers to run various kinds of ballots and elections of employees: Alcoa, Australian Offshore Solutions Pty Ltd, BGC Contracting, Bhagwan Marine, BHP, Broadspectrum/Ventia, CBI Constructors Pty Ltd, Centurion, CPB Contractors, Department of Agriculture and Water Resources, Downer Group, Esso, Farstad Shipping (Indian Pacific) Pty Ltd, Freo Group, Lendlease, Macmahon, Maersk Crewing Australia Pty Ltd, Mammoet Australia Pty Ltd, MMA Offshore Vessel Operations Pty Ltd, Monadelphous, NRNA Australia, Orica Australia Pty Ltd, Programmed Marine, Serco, Skilled Offshore (Australia) Pty Ltd, Sodexo, South32, Thiess Pty Ltd, Westug and WorkPac Pty Ltd;
• CiVS has also conducted enterprise agreement ballots for the following federal departments and organisations; Attorney-General's Department; Australian Building and Construction Commission; Department of Agriculture and Water Resources; Department of the Environment and Energy; Australian Federal Prosecution Service and Australian Competition and Consumer Commission;
• CiVS has also conducted an enterprise agreement ballot for the Federal Court of Australia; and
• CiVS has also conducted ballots for many state and local government departments and organisations, including the South Australian Education Department (over 25,000 participants) and the South and West Australian water corporations.

[33] Mr Michael gave evidence that he believes he is a fit and proper person to be appointed the protected action ballot agent for this matter for the following reasons:

• He holds a Bachelor of Arts degree in Political Science and Industrial Relations and a Bachelor of Business in Management;
• He served as Chairman of the ASX listed company Metaliko Resources Limited between 2010 and 2012;
• He served as non-executive Director of the ASX listed company Central Asia Resources Limited between 2012 and 2013;
• During his tenure on the boards of both companies, he complied with all his legal obligations as a company Director;
• He served as President of the Hellenic Australian Chamber of Commerce and Industry (WA) between 2010 and 2014;
• He has served as the Returning Officer for the West Australian Tourism Commission annual board elections in 2016, 2017, 2018 (an uncontested ballot), 2019 and 2020;
• He has never been charged or convicted of any criminal offense;
• He has never been sued personally, nor has CiVS;and
• All CiVS staff who will have access to private information as part of the proposed

ballot are fit and proper persons. CiVS requires an up-to-date police clearance from each employee and maintains a strict privacy policy.

[34] Mr Michael gave the following evidence in relation to reg 3.11 of the Regulations:

3.11(2) - Secrecy and security of ballot information

• Personal information is stored electronically on a server behind a firewall. Each voting session is encrypted using Secure Sockets Layer technology (SSL), which is similar to the security used for online banking services;
• The CiVS voting environment is housed in a locally owned and operated secure hosting facility. The host is an ASX listed company called DC Two Limited. Their secure facility is located at Osborne Park, WA. As part of CiVS' due diligence, Mr Michael has inspected the site and reviewed its perimeter security and server room operations. All data is stored in Australia;
• CiVS only collects the personal information required to conduct the ballot. The information is only used for the purposes of the ballot and not for any other purpose. The information is not shared with any person or organisation external to CiVS;
• Staff cannot see in the operating system how any individual has voted, only that they have or have not yet voted. Staff have no ability to access information about how an employee has voted and the information is not, and cannot be, disclosed to any other person or organisation;
• Participants' data is securely held for one year by CiVS following completion of a ballot, before being irrevocably destroyed. The data is held in case it is required as evidence in the event the outcome of the ballot is challenged. CiVS can destroy data immediately following a ballot if the client or FWC requests or orders it to do so; and
• Participants can check that their vote has been received and recorded by calling the CiVS hotline. Staff can only see that their vote was recorded, not how they voted.

• Voting is conducted in accordance with the Protected Action Ballot Order. CiVS has complied, and is capable of complying, with the requirements for variations to the roll of voters as prescribed by ss 454(1)-(4) of the Act;
• Employees are able to vote at any time during the voting period. Dispersed workforces, working different shifts and different rotations all have equal opportunity and effort required to vote;
• Employees have a choice whether to vote and are not compelled to cast a vote in the ballot;
• The CiVS internet voting platform makes voting easy and accessible and this usually increases participation in voluntary ballots. He says this based on consistent feedback he has received from client organisations who have previously used a postal ballot method and have advised that electronic voting normally results in higher participation rates;
• CiVS can run online, telephone and SMS ballots. For protected action ballots which typically contain multiple questions to be voted on, online voting has been found to be the most practical and efficient option. For protected action ballots, CiVS complies with the instructions provided to the ballot agent in the relevant Order;
• Typically, CiVS will send an SMS message and email (and post if necessary) to each

participant containing a 6-digit Username, a 4-digit PIN and a unique web address created specifically for the ballot. Participants go to the web address, log-in using their credentials (in a process similar to internet banking) where they can cast their vote;

• As noted above, the vote is conducted via a secret ballot. Whether an employee votes, and the way in which they vote is not disclosed to the Union, the employer or any other party;
• Each employee receives one vote and employees are not able to vote more than once.
• The CiVS Telephone Participant Help Line, answered in-office, is available to all participants from any phone. This allows employees to contact us directly if they are experiencing any issues voting. Unions and employers are also able to contact us to raise any issues or concerns; and
• The online voting system means no paper ballots will be required to be cured or deemed spoiled due to irregularities in handwriting or other inadvertent errors.

• CiVS electronic voting system allows ballots to be conducted extremely quickly, especially when compared to postal ballots;
• The system ensures that employees receive their 'ballot' almost immediately after the voting period opens. Furthermore, employees can cast their ballot right up until the close of voting;
• The results of the ballot are tallied electronically and a report detailing the outcomes of the vote are sent to the union and employer shortly after the conclusion of the voting period; and
• In previous protected action ballots, CiVS has always completed the ballot within the timeframe specified in the Order issued by the Fair Work Commission.

3.11(5) - Agreement to be protected action ballot agent

• He and CiVS consent to the appointment as ballot agent in respect of this matter.

• CiVS is bound by the Privacy Act 1998 (Cth) (the Privacy Act) in respect of handling information. This includes the handling of information relating to protected action ballots;
• CiVS takes its obligations under the Privacy Act extremely seriously and treats all personal information as strictly confidential;
• He and his staff have extensive experience in complying with the Privacy Act; and
• Neither he nor CiVS have ever been the subject of any complaint made under the Privacy Act.

[35] The Union submits that in the event the Commission is not persuaded that a person other than AEC should be the protected action ballot agent, the Commission should grant the application and appoint AEC as the ballot agent.

[36] It is not disputed and based on the material before me, I am satisfied that:

1. The Union is a bargaining representative for the employees;[6]

2. The application specifies the group of employees to be balloted and the questions to be put to the employees;[7]

3. A copy of the application was given to SCL and the AEC within 24 hours of the making of the application;[8]

4. The nominal expiry date of the respective applicable agreements has passed;[9] and

5. The Union is genuinely trying to reach agreement with SCL.[10]

[37] Section 444 of the Act states:

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

(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

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

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

"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.

[39] Having regard to the extensive and unchallenged material before me, I am satisfied that CiVS wishes to be the protected action ballot agent and 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, are capable of ensuring that the ballot will be fair and democratic and are capable of conducting the ballot expeditiously. CiVS and Mr Michael have agreed to be the protected action ballot agent and are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

[40] In these circumstances, it falls for me to determine whether I should exercise the discretionary power available to me in s 444 of the Act and decide that CiVS is to be the protected action ballot agent for a protected action ballot. I have determined that I should appoint CiVS as the protected action ballot agent. This is for a number of reasons. The highest the position of the Respondent can be put is that in its view, the AEC is to be preferred as a protected action ballot agent and that it "does it better." I was not called upon to consider any direct evidence from any employee expressing a view one way or the other. Further, I have noted the AEC is not currently conducting attendance ballots and have had regard to the practicality of conducting a postal ballot in circumstances in which metropolitan Melbourne is currently subject to the Stay at Home Directions of the Victorian Chief Health Officer. It seems to me that in the current circumstances, an electronic vote is a practical and time efficient method for conducting a protected action ballot of the relevant employees and that apart from fulfilling the requirements of s 444 and regulation 3.11, CiVS has the experience and track record required to fulfill the role of protected action ballot agent.

[41] I am not persuaded by the submissions of SCL regarding proposed questions 3-5. I do not consider that these questions are ambiguous or lack clarity and I am satisfied they are capable of being responded to by the employees. The questions ask whether the employees authorise stoppages of work for one hour for purposes which are outlined. The proposed conduct would result in a ban on the performance of the work and therefore falls within the definition of "industrial action" in s 19(b) of the Act. As was held in Energy Australia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union[11] and endorsed in Ambulance Victoria v United Voice,[12] "the word 'ban' contemplates a prohibition on work, rather than a prescription to perform work in a certain way or to achieve a certain result." I am satisfied proposed questions 3-5 meet the requirements of s 437(3)(b). While I have noted the submissions made by SCL that suggest that taking the action in proposed questions 3-5 may be outside protected industrial action and result in the employees breaching various obligations under their contracts of employment, I do not consider such considerations prevent me from granting this application and making the orders in the form that has been sought. As was stated by Justice Tracey in Ambulance Victoria v United Voice:

"The terms in which the proposed action is described for the purposes of the ballot may lack legal precision and, more significantly for present purposes, may or may not constitute industrial action depending on the manner in which the action is performed. It will often be difficult for the Fair Work Commission to anticipate, at the time it makes an order under s 437, the context and manner in which union members might choose to take the proposed action. Once a ballot has been conducted and the action is imminent or has occurred greater clarity will often be present."[13]

[42] Finally, I am not persuaded to accede to the submission of SCL that it is appropriate that any ballot be undertaken on a site-by-site basis and that the results be reported accordingly in an endeavour to properly ascertain the view of the employees. The circumstances in which industrial action is authorised by a protected action ballot are outlined in s 459 of the Act and the requirements for disclosing the results of a protected action ballot are outlined in s 457.

[43] For the reasons set out above, I am satisfied that the Union has satisfied the statutory prerequisites for a protected action ballot order, and accordingly, must make a protected ballot action order. I am also satisfied that the requirements of s 444 and regulation 3.11 are met and this is an appropriate matter in which to exercise the discretionary power in s 444 and decide that CiVS is to be the ballot agent. The Order will be issued separately to this decision.

Ms E White of Counsel for the United Workers' Union

[1] See s.437 of the Fair Work Act 2009.

[2] Skilled Offshore [2015] FWCFB 7399.

[3] Construction, Forestry, Mining and Energy Union v Grocon Pty Ltd and others [2012] FWA 1716 (2 March 2012) at [33].

[5] Exhibit A1 at [27] and Exhibit A2 at [29]-[30].

[6] Fair Work Act (2009), s.437(1).

[7] Ibid, s.437(3).

[8] Ibid, s.440.

[9] Ibid, s.438(1).

[10] Ibid, s.443(1)(b).

[11] [2013] VSC 105 at [34].

[12] [2014] FCA 1119 at [25].

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