1
Fair Work Act 2009
s.437—Protected action
United Workers’ Union
v
Silk Contract Logistics Pty Ltd
(B2021/667, B2021/668 and B2021/669)
DEPUTY PRESIDENT CLANCY MELBOURNE, 17 AUGUST 2021
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
1 See s.437 of the Fair Work Act 2009.
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DECISION
E AUSTRALIA FairWork Commission
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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.
SCL’s evidence and submissions
[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
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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
Submissions of the Union
[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
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].
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[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:
4 Exhibit A3 at [27]-[28])
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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.
5 Exhibit A1 at [27] and Exhibit A2 at [29]-[30].
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[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;
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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.
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[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
corporate or an industrial association;
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,
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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;
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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.
3.11(3) - Fair and democratic ballot
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.
3.11(4) - Conduct ballot expeditiously
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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.
3.11(6) - Bound by the Privacy Act 1998
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.
Consideration
[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
6 Fair Work Act (2009), s.437(1).
7 Ibid, s.437(3).
8 Ibid, s.440.
9 Ibid, s.438(1).
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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
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.
[38] 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:
10 Ibid, s.443(1)(b).
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(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 Union11 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:
11 [2013] VSC 105 at [34].
12 [2014] FCA 1119 at [25].
[2021] FWC 5103
14
“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.
Conclusion
[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.
DEPUTY PRESIDENT
Appearances:
Ms E White of Counsel for the United Workers’ Union
Mr I Dixon on behalf of SCL Pty Ltd
Hearing details:
2021.
By Video via Microsoft Teams:
August 17.
Printed by authority of the Commonwealth Government Printer
PR732932
13 Ibid at [18].
NO R HE FAI NOISSIN THE SEA
