Fair Work Act 2009

s.437 - Protected action

Proposed protected action ballot of employees of MSS Security Pty Lt

• [1] On 22 July 2024, the United workers Union applied under s 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of MSS Security Pty Ltd.

• [2] Also on 22 July 2024, MSS Security advised the Commission that it objected the application. In summary, MSS Security objected on two grounds:

1. the UWU was not bargaining in good faith and therefore not genuinely trying to reach an agreement; and
2. objections about the proposed action.

• [3] I listed the matter for hearing on 24 July 2024.

• [4] UWU relies on the following materials:
  • - A form F34B declaration dated 22 July 2024 and signed by Mr Nicholas Richardson, Trade Union Official, which included 4 annexures;
  • - A further one-page written witness statement and Mr Richardson's oral evidence given at the hearing; and
  • - Written and oral submissions.

• [5] MSS Security relies upon:
  • - A letter dated 22 July 2024 detailing its objections to the application;
  • - Agenda and minutes of bargaining meetings; and
  • - Oral submissions.

• [6] Section 443 of the Act provides:

(1) The FWC 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) the FWC 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) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

Was an application made under s 437?

• [7] Based on the Form F34B Declaration of Mr Richardson, I am satisfied that the UWU has standing to make and has made the application under s 437, and that there is a notification time in relation to the proposed agreement.

Is the Applicant genuinely trying to reach an agreement?

• [8] I am also satisfied that the UWU has been and is genuinely trying to reach an agreement with MSS Security. I accept Mr Richardson's unchallenged evidence.

• [9] MSS Security submits that the application is premature, the UWU is not bargaining in good faith as it has not genuinely considered or responded to proposals and that this demonstrates that the UWU is not genuinely trying to reach agreement.

• [10] In ascertaining whether an applicant is genuinely trying to reach agreement, the Full Bench in Esso Australia Pty Ltd v AMWU, CEPU and AWU[1] agreed with an earlier Full Bench[2] that it is not appropriate to establish rigid rules for a required point of negotiations to be reached. Indeed, in the decision of the Full Federal Court in J.J. Richards Sons Pty Ltd and Another v Fair Work Australia and Another,[3] there is no requirement in s 443 for bargaining to have commenced.

• [11] In this matter, bargaining has commenced and 5 meetings have been held. Four meetings were held prior to the date of the application and one meeting was held the day before the hearing. The parties have also scheduled two further meetings. Mr Richardson gave evidence of exchanges of logs of claims and discussions during bargaining meetings which resulted in some claims being agreed to in principle or amended but that the parties were far apart on other claims - particularly wages. Bargaining appears to be progressing normally. There is no requirement for an impasse or a particular point in negotiations to be reached.

• [12] The scheme of the Act allows for industrial action to be taken or threatened to be taken as a bargaining device.[4] Bargaining can, and it appears that the parties intend that it will, continue during the application and balloting process.

• [13] An application for a protected action ballot order made at this point in negotiations is not premature nor does it demonstrate that the applicant is not genuinely trying to reach agreement.

• [14] Genuinely trying to reach agreement is different to the good faith bargaining requirements in s 228 of the Act. Mr Richardson's unchallenged evidence indicates that the UWU has genuinely considered and responded to the employer's proposals including accepting some claims and modifying its claims, despite good faith bargaining not requiring concessions to be made.[5] The UWU has otherwise attended and participated in meetings and has agreed to future scheduled meetings.

• [15] I am of the view that the UWU is bargaining in good faith, and genuinely trying to reach agreement.

Objection about Proposed Action Ballot Questions

• [16] MSS Security objected to a number of the ballot's proposed questions and actions. The key ground for its opposition related to security risks. There were also grounds relating to types of actions that it says would be contrary to its employment policies, which could result the employer taking disciplinary action against an employee taking that action.

• [17] The Commission's power to make a protected action ballot order under s 443 of the Act is not discretionary.[6] I am satisfied of the requirements of s 443 and I must make the orders sought.

• [18] Making the order does not prevent the employer from raising its concerns about any action that are authorised by the ballot and of which notice is given. The employer can, at that point in time, apply under s 418 for an order to stop the action.

• [19] As I am satisfied that all of the requirements of s 443(1) have been met, I make the order sought.
• [20] The ballot is to be conducted by TrueVote Pty Ltd (TrueVote). TrueVote has been approved as an eligible protected action ballot agent under s 468A of the Act and consequently is authorised to conduct the ballot.

• [21] 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 August 2024. This also establishes the ballot period for the purpose of s 448A(2) of the Act.

• [22] An Order is separately issued in PR777473.

[1] [2015] FWCFB 210 at [35].

[2] Total Marine Services Pty Ltd v Maritime Union of Australia [2009] FWAFB 368; (2009) 189 IR 40 at [32].

[3] [2012] FCAFC 53; (2012) 201 FCR 297 at [30]- [31].

[4] Senior Deputy President O'Callaghan in NUW v Symbion Pharmacy Services Pty Ltd [2009] FWA 1284 at [10], which was endorsed by the Full Bench in Energy Australia Yallourn Pty Ltd v CFMEU [2013] FWCFB 2022 at [20] - [21].

[6] National Tertiary Education Industry Union (283V) v Curtin University [2022] FWCFB 204 at [37].

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