FWC Rules Against Employer’s Privacy Concerns

Mandates Worker Details Sharing for Protected Action Ballot

Key Takeaways

1. Importance of Transparency in PABO: The FWC decision in TWU v Clark’s Logan City Bus Services (Qld) [2023] FWC 1721 emphasizes the significance of transparency in protected action ballots, insisting that an Employer share employee details to maintain the integrity of the electronic vote on protected action sought by the TWU.

2. Balancing Privacy Concerns: Despite the Employer’s privacy concerns, Deputy President Hampton’s reasons highlight the Commissions’ need to balance privacy and the requirement for a proper reference point to assess the eligible voter list independently.

3. Public Interest: s450(4) FWA does on face value provide that either the applicant or Employer, or both, may provide the required information.  However DP Hampton’s reasons ultimately turn on the ‘strong public interest’ in maintaining the integrity and robust nature of IR Ballots, and regard for a proper reference point against which the eligible protected action ballet agent can identify the eligible voter list.

4. For eligible protected ballot agent ‘eyes only’: The decision makes clear that the information supplied by the Employer is for the eligible protected ballot agents ‘eye’s only’. Meaning that the TWU would not have access to the full list of Employee details, beyond its membership database.  That is a critical point for protection of privacy, and the trusted role of an eligible protected ballot agent. 

In TWU v Clark’s Logan City Bus Services (Qld) [2023] FWC 1721, Deputy President Hampton emphasized the importance of transparency in protected action ballots (PABO) by ruling that a bus company, Clark’s Logan City Bus Services, must share employee details directly to the eligible protected action ballot agent for an electronic vote on protected strikes sought by the Transport Workers Union (TWU). This decision follows a series of significant rulings related to the Secure Jobs Act, shedding light on the complexities of industrial relations in Australia.

Clark’s Logan City Bus Services had initially offered an “uncommon concession” by proposing to rely solely on the TWU’s database to develop a roll of voters, citing privacy concerns and reservations about disclosing information on non-TWU members. However, Deputy President Hampton asserted that the integrity of the electronic vote required the employer to provide employee details to the eligible protected action ballot agent, to assess and confirm the eligible voter’s list independently.

“The [Fair Work] Act and the regulations contemplate the Commission issuing directions of this kind, and I consider that the terms of the order in this respect are unremarkable and in general terms, appropriate,” remarked Deputy President Hampton.

Despite the TWU’s initial request for “normal employee information” from both parties, it agreed not to press for details from the bus company after the employer assured it would not seek to verify the union’s database against its records. Deputy President Hampton acknowledged this development but stressed the necessity of maintaining the “integrity and robust nature” of protected action ballots meant full disclosure was required so that the eligible protected ballot agent could independently identify the eligible voters.

The decision highlighted the potential fragility of the agreement between the TWU and the employer, with Deputy President Hampton expressing concerns about the duration of the “détente” and its implications for a non-controversial ballot period.

Furthermore, the article details Clark’s Logan City Bus Services’ objections to two proposed questions in the ballot, which were deemed by the employer to fall outside the s19 definition of industrial action. Deputy President Hampton disagreed, asserting that the questions described actions that could be industrial if taken by employees. The matter will now proceed to a compulsory conciliation conference during the ten-day balloting.

This ruling underscore the FWC’s commitment to upholding the integrity of the protected action ballot process and ensuring transparency between employers and unions, even in the face of privacy concerns and disputed questions regarding industrial action. Privacy risks can be managed through obligations of confidentiality imposed on the protected action ballot agent, who is trusted to keep the information ‘for their eyes only’.