In Brief

• A protected action ballot is the first step required to be undertaken by employees before they are able to engage in protected industrial action in support of bargaining for a new enterprise agreement.
• Applications for protected action ballots must, as far as practicable, be determined by the Fair Work Commission within 2 working days of the application being made. Because of this requirement, employers are generally at a distinct disadvantage, as they have very little time to consider how to respond. This means pre-planning is essential.
• The application for a protected action ballot order is an important opportunity for employers to:Failing to take any available objections to the nature of industrial action set out in the proposed protected action ballot will make it very difficult to maintain those objections later – when industrial action is actually taken.
  • confine the types of industrial action proposed,
  • obtain orders extending notification periods for the taking of the action, and
  • defeat the application in its entirety and prevent the ballot taking place.
• Failing to take any available objections to the nature of industrial action set out in the proposed protected action ballot will make it very difficult to maintain those objections later – when industrial action is actually taken.

CEVA Logistics (Australia) Pty Ltd v National Union Of Workers

The Fair Work Commission’s relatively recent decision in CEVA Logistics (Australia) Pty Ltd v National Union of Workers¹ provides a timely reminder to employers of the importance of the protected action ballot.

CEVA sought orders from the Commission under section 418 of the Fair Work Act 2009 (Cth) (Act) to prevent industrial action from taking place. Relevantly, CEVA submitted that the industrial action would not be ‘protected’ due to deficiencies in the written notice of industrial action. The National Union of Workers (NUW) had described the relevant industrial action as “a ban on paperwork of indefinite duration“. CEVA argued that this description did not adequately “specify the nature of the action”, and accordingly did not meet requirements of section 414(6) of the Act.

‘Ban On Paperwork’ Sufficiently Clear

CEVA’s evidence was that paperwork was essential to all of its warehousing operations, and that the effect of the ban could range from negligible to ‘crippling’ depending on the extent of the ban. Given the broad range of tasks that might (or might not) be the subject of the ban, CEVA submitted that it was unable to adequately prepare for the action. In part, this was because it was not clear where the ‘paperwork’ ended, and the ‘technology’ started (particularly in the context of keyboard work which generates paperwork, and the use of RF scanners).

Commissioner Gregory found that, in ordinary industrial English, a ban on paperwork was readily understandable. It did not require “additional clarification in the form of references to, for example, some, partial or all paperwork”.

Complaint Not Raised At Protected Action Ballot Stage

Importantly, Commissioner Gregory commented that CEVA had not made any complaint about the description of the industrial action when it was included as part of the protected action ballot application. A similar point was made in another recent decision by the Full Bench of the Fair Work Commission.²

The application for a protected action ballot order is an important opportunity for employers to:

• confine the types of industrial action proposed,
• obtain orders extending notification periods for the taking of the action, and
• defeat the application in its entirety and prevent the ballot taking place.

As these recent cases demonstrate, failing to take any available objections to the nature of industrial action set out in the proposed protected action ballot will make it very difficult to maintain those objections later – when industrial action is actually taken. This highlights the importance of raising any concerns with the description of the industrial action at the ballot application stage. Accordingly, given the very short notice that employers have to respond to protected action ballot applications, pre-planning is essential.

End Notes:

1. [2014] FWC 1948.
2. See Energy Australia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FWCFB 3793 at [47].

For further information, please contact:

Paul Burns, Partner, Herbert Smith Freehills

[email protected]

Kirsty Faichen, Partner, Herbert Smith Freehills

[email protected]

Drew Pearson, Partner, Herbert Smith Freehills

[email protected]

Anthony Longland, Partner, Herbert Smith Freehills

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